rarily discharged. That was the purpose of these laws. It is entirely evident that these temporary vacancies are just as liable to occur during the session of the senate as during the recess of the senate; that it is just as necessary to have a set of legislative provisions to enable the president to carry on the public service in case of these vacancies and inabilities during the session of the senate as during the recess of the senate; and, accordingly, it will be found, by looking into these laws, that they make no distinction between the sessions of the senate and the recesses of the senate in reference to these temporary authorities. "Whenever a vacancy shall occur" is the language of the law,-"whenever there shall be a death or a resignation or an absence or a sickness." The law applies when the event occurs that the law contemplates as an emergency; and the particular time when it occurs is of no consequence in itself, and is deemed by the law of no consequence. In accordance with this view, senators, has been the uniform and settled and frequent practice of the government from its very earliest date, as I am instructed we shall prove, not in any one or two or few instances, but in great numbers of instances. That has been the practical construction put upon these laws from the time when the earliest law was passed in 1792, and it has continued down to this day.

The honorable managers themselves read a list a few days since of temporary appointments during the session of the senate of heads of departments, which amounted in number, if I counted them accurately, to upwards of thirty, and, if you add to these the cases of officers below the heads of departments, the number will be found, of course, to be much increased; and, in the course of exhibiting this evidence, it will be found that, although the instances are not numerous, for they are not very likely to occur in practice, yet instances have occurred on all-fours with the one which is now before the senate, where there has been a removal or a suspension of an officer, sometimes one and sometimes the other, and the designation of a person has been made at the same time temporarily to discharge the duties of that office. The senate will see that, in practice, such things must naturally occur. Take the case, for instance, of Mr. Floyd, which I alluded to yesterday. Mr. Floyd went out of office. His chief clerk was a person believed to be in sympathy with him, and under his control. If the third section of the act of 1789 was allowed to operate, the control of the office went into the hands of that clerk. The senate was in session. The public safety did not permit the war department to be left in that predicament for one hour,

if it could be avoided, and President Buchanan sent down to the post-office department, and brought the postmaster general to the war department, and put it in his charge. There was then in this body a sufficient number of persons to look after that matter. They felt an interest in it, and consequently they passed a resolve inquiring of President Buchanan by what authority he had made an appointment of a person to take charge of the war department without their consent, without a nomination to them, and their advising and consenting to it; to which a message was sent in answer containing the facts on this subject, and showing to the senate of that day the propriety, the necessity, and the longcontinued practice under which this authority was exercised by him, and giving a schedule running through the time of General Jackson and his two immediate successors, I think, showing great numbers of ad interim appointments of this character, and to those, as I have said, we shall add a very considerable number of others. I submit, then, that there can be no ground whatever for the allegation that this ad interim appointment was a violation of the constitution of the United States. The legislation of congress is a sufficient answer to that charge.

I pass, therefore, to the next article which I wish to consider, and that is not the next in number, but the eighth; and I take it in this order because the eighth article, as I have analyzed it, differs from the second only in one particular, and therefore, taking that in connection with the second, of which I have just been speaking, it will be necessary for me to say but a very few words concerning it. It charges an attempt unlawfully to control the appropriations made by congress for the military service, and that is all there is in it except what there is in the second article. Upon that, certainly, at this stage of the case, I do not deem it necessary to make any observations. The senate will remember the offer of proof on the part of the managers designed, as was stated, to connect the president of the United States, through his private secretary, with the treasury, and thus enable him to use unlawfully appropriations made for the military service. The senate will recollect the fate of that offer, and that the evidence was not received; and therefore it seems to me quite unnecessary for me to pause to comment any further upon this eighth article.

I advance to the third article, and here the allegations are that the president appointed General Thomas; second, that he did this without the advice and consent of the senate; third, that he did it when no vacancy had happened in the recess of the senate;

fourth, that he did it when there was no vacancy at the time of the appointment; and, fifth, that he committed a high misdemeanor by thus intentionally violating the constitution of the United States. I desire to say a word or two upon each of these points. And first we deny that he ever appointed General Thomas to an office. An appointment can be made to an office only by the advice and consent of the senate, and through a commission signed by the president, and bearing the great seal of the government. That is the only mode in which an appointment can be made. The president, as I have said, may temporarily commission officers when vacancies occur during the recess of the senate. That is not an appointment. It is not so termed in the constitution. A clear distinction is drawn between the two. The president also may, under the acts of 1795 and 1863, designate persons who shall temporarily exercise the authority and perform the duties of a certain office when there is a vacancy; but that is not an appointment. The office is not filled by such a designation. Now, all which the president did was to issue a letter of authority to General Thomas, authorizing him ad interim to perform the duties of secretary of war. In no sense was this an appointment. It is said it was made without the advice and consent of the senate. Certainly it was. How can the advice and consent of the senate be obtained to an ad interim authority of this kind under any of these acts of congress? It is not an appointment that is in view. It is to supply temporarily a defect in the administrative machinery of the government. If he had gone to the senate for their advice and consent, he must have gone on a nomination made by him of General Thomas to this office, a thing he never intended to do, and never made any attempt to carry into effect. It is said no vacancy

happened in the recess. That I have already considered. Temporary appointments are not limited to the temporary supply of vacancies happening in the recess of the senate, as I have already endeavored to show. It is said there was no vacancy at the time the act was done. That is begging the question. If Mr. Stanton's case was not within the tenure-of-office act,-if, as I have so often repeated, he held under the act of 1789, and at the pleasure of the president,-the moment he received that order which General Thomas carried to him there was a vacancy in point of law, however he may have refused to perform his duty, and prevented a vacancy from occurring in point of fact.

But the senate will perceive these two letters were to be delivered to General Thomas at the same time. One of them is an

order to Mr. Stanton to vacate the office; the other is a direction to General Thomas to take possession when Mr. Stanton obeys the order thus given. Now. may not the president of the United States issue a letter of authority in contemplation that a vacancy is about to occur? Is he bound to take a technical view of this subject, and have the order creating the vacancy first sent and delivered, and then sit down at his table and sign the letter of authority afterwards? If he expects a vacancy, if he has done an act which, in his judgment, is sufficient to create a vacancy, may he not, in contemplation that that vacancy is to happen, sign the necessary paper to give the temporary authority to carry on the duties of the office? Last of all, it is said he committed a high misdemeanor by intentionally violating the constitution of the United States when he gave General Thomas this letter of authority. If I have been successful in the argument I have already addressed to you, you will be of opinion that, in point of fact, there was no violation of the constitution of the United States by delivering this letter of authority, because the constitution of the United States makes no provision on the subject of these temporary authorities, and the law of congress has made provision equally applicable to the recess of the senate and to its session. Here, also, I beg leave to remind the senate that, if Mr. Stanton's case does not fall within the tenure-of-office act, if the order which the president gave to him to vacate the office was a lawful order, and one which he was bound to obey, everything which is contained in this article, as well as in the preceding articles, fails. It is impossible, I submit, for the honorable managers to construct a case of an intention on the part of the president to violate the constitution of the United States out of anything which he did in reference to the appointment of General Thomas, provided the order to Mr. Stanton was a lawful order, and Mr. Stanton was bound to obey it.

I advance, now, senators, to a different class of articles, and they may properly enough, I suppose, be called the "conspiracy articles," because they rest upon charges of conspiracy between the president and General Thomas. There are four of them,— the fourth, fifth, sixth, and seventh in number as they stand. The fourth and the sixth are framed under the act of July 31, 1861, which is found in 12 Statutes at Large, page 284. The fifth and seventh are framed under no act of congress. They allege an unlawful conspiracy, but they refer to no law by which the acts charged are made unlawful. The acts charged are called unlawful, but there is no law referred to and no case made by

the articles within any law of the United States that is known to the president's counsel. I shall treat these articles, therefore, the fourth and sixth together, and the fifth and seventh together, because I think they belong in that order. In the first place, let me consider the fourth and sixth, which charge a conspiracy within this act which I have just mentioned. It is necessary for me to read the substance of this law in order that you may see whether it can have any possible application to this case. It was passed on the 31st of July, 1861, as a war measure, and is entitled "An act to define and punish certain conspiracies." It provides:

"That, if two or more persons within any state or territory of the United States shall conspire together to overthrow or to put down or to destroy by force the government of the United States, or to levy war against the United States, or 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."

These are the descriptions of the offenses. The fourth and sixth articles contain allegations that the president and General Thomas conspired together, by force, intimidation, and threats, to prevent Mr. Stanton from continuing to hold the office of secretary for the department of war, and also that they conspired together by force to obtain possession of property belonging to the United States. These are the two articles which I suppose are designed to be drawn under this act, and these are the allegations which are intended to bring the articles within it. Now, it does seem to me that the attempt to wrest this law to any bearing whatsoever upon this prosecution is one of the extraordinary things which the case contains. In the first place, so far from having been designed to apply to the president of the United States, or to any act he might do in the course of the execution of what he believed to be his duty, it does not apply to any man or any thing within the District of Columbia at all. "If two or more persons within any state or territory of the United States." Not within the District of Columbia. This is a highly penal law, and an indictment found in the very words of this act charging things to have been done in the District of Columbia, and returned into the proper court of this District, I will undertake to say, would not bear a general demurrer because there is locality given to those things made penal by this act of congress. It is