well as of New Orleans, and the green fields of the south, already dotted with so many patriot graves, with the blood of martyred citizens.

And because for all he has not been called to render an account, for the reasons that have been already named, it is now assumed and argued by his counsel that he stands acquitted by a judgment which disapproves its truth, although it rests for the most part on record evidence, importing that "absolute verity," which is, of course, not open to dispute. This extraordinary assumption is but another instance of that incorrigible blindness on the part of the President in regard to the feelings and motives of Congress that has helped to hurry him into his present humiliating predicament as a criminal at your bar.

But all these things were not enough. It wanted one drop more to make the cup of forbearance overflow-one other act that should reach the sensorium of the nation, and make even those who might be slow to comprehend a principle, to understand that further forbearance was ruin to us all; and that act was done in the attempt to seize by force or stratagem on that department of the government through which its armies were controlled. It was but a logical sequence of what had gone before-the last of a series of usurpations, all looking to the same great object. It did not rise, perhaps, beyond the height of many of the crimes by which it was ushered in. But its meaning could not be mistaken. It was an act that smote upon the nerve of the nation in such a way as to render it impossible that it could be either concealed, disparaged, or excused, as were the muffled blows of the pick-axe that had been so long silently undermining the bastions of the republic. It has been heard and felt through all our wide domain like the reverberation of the guns that opened their iron throats upon our flag at Sumter; and it has stirred the loyal heart of the people again with the electric power that lifted it to the height of the sublimest issue that ever led a martyr to the stake or a patriot to the battle-field. That people is here to-day, through its representatives, on your floor and in your galleries, in the persons alike of the veterans who have been scarred by the iron hail of battle, and of the mothers and wives and daughters of those who have died that the republic might live, as well as of the commissioned exponents of the public will, to demand the rewards of their sacrifices and the consummation of their triumph in the award of a nation's justice upon this high offender.

And now as to the immediate issue, which I propose to discuss only in its constitutional and legal aspects.

The great crime of Andrew Johnson, as already remarked, running through all his administration, is that he has violated his oath of office and his constitutional duties by the obstruction and infraction of the Constitution and the laws, and an endeavor to set up his own will against that of the law-making power, with a view to a settled and persistent purpose of forcing the rebel States into Congress on his own terms, in the interests of the traitors, and in defiance of the will of the loyal people of the United States.

The specific offences charged here, which are but the culminating facts, and only the last of a long series of usurpations, are an unlawful attempt to remove the rightful Secretary of War and to substitute in his place a creature of his own, without the advice and consent of the Senate, although then in session; a conspiracy to hinder and prevent him from resuming or holding the said office after the refusal of the Senate to concur in his suspension, and to seize, take, and possess the property of the United States in said department; an attempt to debauch an officer of the army from his allegiance by inculcating insubordi nation to the law in furtherance of the same object; the attempt to set aside the rightful authority of Congress and to bring it into public odium and contempt, and to encourage resistance to its laws by the open and public delivery of indecent harangues, impeaching its acts and purposes and full of threats and menaces against it and the laws enacted by it, to the great scandal and degradation of his own high office as President; and the devising and contriving of

1

unlawful means to prevent the execution of the tenure-of-office, army appropriation, and reconstruction acts of March 2, 1867.

To all of these which relate to the attempted removal of the Secretary of War the answer is:

1. That the case of Mr. Stanton is not within the meaning of the first section of the tenure-of-office act.

2. That if it be so, the act is unconstitutional and void so far as it undertakes to abridge the power claimed by him of "removing at any and all times all executive officers for causes to be judged of by himself alone," as well as of suspending them indefinitely at his sovereign will and pleasure; and,

3. That whether the act be constitutional or otherwise, it was his right, as he claims it to have been his purpose, to disobey and violate it with a view to the settlement of the question of its validity by the judiciary of the United States. And first, as to the question whether the present Secretary of War was intended to be comprehended within the first section of the act referred to.

The defendant insists that he was not, for the reason that he derived his commission from Mr. Lincoln, and not being removed on his accession, continued by reason thereof to hold the office and administer its duties at his pleasure only, without having at any time received any appointment from himself; assuming, as I understand, either that under the proviso to the first section of this act the case was not provided for, or that by force of its express language, his office was determined by the expiration of the first term of the President who appointed him.

The body, or enacting clause of this section, provides that every person then holding any civil office who had been appointed thereto by and with the advice and consent of the Senate, or who should be thereafter appointed to any such office, should be entitled to hold until a successor is appointed in the like

manner.

It is clear, therefore, that its general object was to provide for all cases, either then existing or to happen in the future.

It is objected, however, that so much of this clause as refers to the heads of departments is substantially repealed by the saving clause, which is in the following words:

Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

This proviso was the result of a conference on the disagreeing votes on the amendment of the House striking out the exception in favor of the heads of departments, and was suggested-if he may be excused the egotism-by the, individual who now addresses you, and to whom, as the mover and advocate of the amendment, was very naturally assigned the duty of conducting the negotiation on the part of the House, for the purpose of obviating the objection taken in debate on this floor by one of the Senate managers, that the effect of the amendinent would be to impose on an incoming President a cabinet that was not of his own selection. I may be excused for speaking of its actual history, because that has been made the subject of comment by the learned counsel who opened this case on behalf of the President. If it was intended or expected that it should so operate as to create exceptions in favor of an officer whose notorious abuse of power was the proximate cause, if not the impelling motive for the enactment of the law, I did not know it. It will be judged, however, by itself, without reference either to the particular intent of him who may have penned it, or to any hasty opinion that may have been expressed in either house as to the construction of which it might be possibly susceptible.

"ap

The argument of the defendant rests upon the meaning of the word "

pointed." That word has both a technical and a popular one. In the former, which involves the idea of a nomination and confirmation in the constitutional way, there was no appointment certainly by Mr. Johnson. In the latter, which

is the sense in which the people will read it, there unquestionably was. then, was meant by the employment of this word?

What,

It is a sound and well-accepted rule in all the courts, in exploring the meaning of the law-giver, especially in cases of remedial statutes, as I think this is, if it is not rather to be considered as only a declaratory one in this particular, to look to the old law, the mischief and the remedy, and to give a liberal construction to the language in favorem libertatis, in order to repress the mischief and advance the remedy; taking the words used in their ordinary and familiar sense, 'and varying the meaning as the intent, which is always the polar star, may require. Testing the case by this rule, what is to be the construction here?

The old law was-not the Constitution-but a vicious practice that had grown out of a precedent involving an early and erroneous construction of that instrument, if it was intended so to operate. The mischief was that this practice had rendered the officers of the government, and among them the heads of depart-1 ments, the most powerful and dangerous of them all, from their assumed position of advisers of the President, by the very dependency of their tenure, the mere ministers of his pleasure, and the slaves of his imperial will, that could at any moment, and as the reward of an honest and independent opinion, strip them of their employments, and send them back into the ranks of the people. The remedy was to change them from minions and flatterers into men, by making them free, and to secure their loyalty to the law by protecting them from the power that might constrain their assent to its violation. To accomplish this object it was necessary that the law should cover all of them, high and low, present and prospective. That it could have been intended to except the most important and formidable of these functionaries, either with a view to favor the present Executive, or for the purpose of subjecting the only head of a depart-" ment who had the confidence of Congress to his arbitrary will, is as unreasonable and improbable as it is at variance with the truth of the fact and with the obvious general purposes of the act.

For the President of the United States to say, however, now, after having voluntarily retained Mr. Stanton for more than two years of his administration, that he was there only by sufferance, or as a mere movable, or heirloom, or incumbrance that had passed to him with the estate, and not by virtue of his own special appointment, if not "paltering with the people in a double sense," has very much the appearance of a not very respectable quibble. The unlearned man who reads the proviso-as they for whose perusal it is intended will read it-and who is not accustomed to handle the metaphysic scissors of the professional casuists who are able to divide a hair 'twixt west and northwest side," while he admits the ingenuity of the advocate, will stand amazed, if he does not scorn the officer who would stoop to the use of such a subterfuge.

Assuming, however, for the sake of argument, that the technical sense is to prevail, what is to be its effect? Why, only to make the law-giver enact a very unreasonable and impossible thing, by providing in words of the future tense, that the commission of the officer shall expire nearly two years before the pas sage of the law, which is a construction that the general rule of law forbids! To test this let us substitute for the general denominational phrases of "Secretary of War, of State, and of the Navy," the names of Messrs. Seward, Stanton, and Welles, and for that of the President who appointed them the name of Lincoln, and the clause will read: Provided, That Messrs. Seward, Stanton, and Welles, shall hold their offices respectively for and during the term of Abraham Lincoln, and for one month thereafter." The effect will then be toput you in the position of having enacted not only an absurdity, but an impossibility. But on this there are at least two rules of interpretation that start up

in the way of the solution. The first is that it is not respectful to the legislature to presume that it ever intended to enact an absurdity, if the case is susceptible of any other construction; and the second that

Acts of Parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences manifestry contradictory to common reason, they are, with regard to these collateral consequences, void. (1 Blackstone's Commentaries, 91.)

If the effect of the proviso, however, upon something analogous to the doctrine of cy pres, or, in other words, of getting as near to its meaning as possible, was to determine the office at the time of the passage of the law, then, on the other hand, the retention of the officer by the President for five months afterward, and through an intervening Congress, without a commission or even a nomination, was a breach of the law, and therefore a misdemeanor in itself; which he could hardly plead, and would scarcely ask you to affirm against the general presumption of the faithful performance of official duty for the purpose of sheltering him from the consequences of still another violation of the law.

Assuming again, however, that, as is claimed by the defence, the case of Mr. Stanton does not fall within the proviso, what then is the result? Is it the predicament of a casus omissus altogether? Is he to be hung up, like Mahomet's coffin, between the body of the act and the proviso, the latter nullifying the former on the pretext of an exception, and then repudiating the exception itself as to the particular case; or is the obvious and indisputable purpose of providing for all cases whatever, to be carried out by falling back on the general enacting clause which would make him irremovable by the President alone, and leaving him outside of the provision as to tenure, which was the sole object of the exception? There is nothing in the saving clause which is at all inconsistent with what goes before. The provision that takes every officer out of the power of the President is not departed from in that clause. All it enacts is that the tenure shall be a determinate one in cases that fall within it. If Mr. Stanton was appointed by President Johnson within the meaning of the proviso, he holds, of course, until the expiration of his term. If not, he holds subject to removal like other officers under the enacting clause. It has been so often asserted publicly as to have become a generally accredited truth, that the special purpose of the act was to protect him. I do not affirm this, and do not consider it necessary that I should, or important to the case whether he favored the passage of the law or not. It will be hardly pretended, however, by anybody, that he was intended to be excluded entirely from its operation.

Nor is the case helped by the reference to the fourth section of the act, which provides that nothing therein contained shall be construed to extend the term of any officer the duration of which is limited by law. The office in question was one of those of which the tenure was indefinite. The construction insisted

on by me does not extend it. The only effect is to take away the power of removal from the President alone and restore it to the parties by whom the Constitution intended that it should be exercised.

Assuming, then, that the case of Mr. Stanton is within the law, the next question is as to the validity of the law itself. And here we are met, for the first time in our history as a nation, by the assertion, on the part of the President, of the illimitable and uncontrollable power under the Constitution, in accordance, as he insists, with the judicial opinion, the professional sentiment, and the settled practice under the government of removing at any and all times all executive officers whatever, without responsibility to anybody, and as included therein the equally uncontrollable power of suspending them indefinitely and supplying their places from time to time by appointments made by himself ad interim. If there be any case where the claim has heretofore extended, even in theory, beyond the mere power to create a vacancy by removal during the recess of the Senate, I do not know it. If there be any wherein the power to suspend

indefinitely, which goes even beyond this, has been asserted, it is equally new to me. This truly regal pretension has been fitly reserved for the first President who has ever claimed the imperial prerogative of founding governments by proclamation, of taxing without a Congress, of disposing of the public property by millions at his own will, and of exercising a dispensing power over the laws. It is but a logical sequence of what he has been already permitted to do with absolute impunity and almost without complaint. If he could be tolerated thus far, why not consummate the work which was to render him supreme, and crown his victory over the legislative power by setting this body aside as an advisory council, and claiming himself to be the rightful interpreter of the laws? The defence made here is a defiance, a challenge to the Senate and the nation, that must be met and answered just now in such a way as shall determine which, if any, is to be the master. If the claim asserted is to be maintained by your decision, all that will remain for you will be only the formal abdication of your high trust as part of the appointing power, because there will be then absolutely nothing left of it that is worth preserving.

But let us see what there is in the Constitution to warrant these extravagant pretensions, or to prevent the passage of a law to restore the practice of this government to the true theory of that instrument.

I do not propose to weary you with a protracted examination of this question. I could not add to what I have already said on the same subject in the discussion in the House of the bill relating to removals from office in December, 1866, to which I would have ventured to invite your attention, if the same point had not been so fully elaborated here. You have already passed upon it in the enactment of the present law by a vote so decisive and overwhelming, and there is so little objection on the part of the counsel for the President to the validity of that law, that I may content myself with condensing the arguments on both sides into a few general propositions which will comprehend their capital features.

The case may be stated, as I think, analytically and synoptically thus:

The first great fact to be observed is, that while the Constitution enumerates sundry offices, and provides the manner of appointment in those cases, as well as in "all others to be created by law," it prescribes no tenure except that of good behavior in the case of the judges, and is entirely silent on the subject of removal by any other process than that of impeachment.

From this the inferences are:

1. That the tenure of good behavior, being substantially equivalent to that for life, the office must in all other cases be determinable at the will of some department of the government, unless limited by law; which is, however, but another name for the will of the law-maker himself. And this is settled by authority.

2. That the power of removal at will, being an implied one only, is to be confined to those cases where the tenure is not ascertained by law; the right of removal in any other form than by the process of impeachment depending entirely on the hypothesis of a will of which the essential condition always is that it is free to act without reason and without responsibility.

3. That the power of removal, being implied as a necessity of state to secure the dependence of the officer on the government, is not to be extended by construction so as to take him out of the control of the legislature, and make him dependent on the will of the Executive.

The next point is that the President is by the terms of the Constitution to "nominate, and by and with the advice and consent of the Senate appoint," to all offices, and that without this concurrence he appoints to none except when authorized by Congress. And this may be described as the rule of the Con

stitution.