This might have been left until the day on which he should appear, and then a request made for a day or two's relief in this regard, but it occurred to us to be much failer to the managers than the interva! we propose should be interposed at a time when it would be useful and valnable to them; also, as the proofs are not entirely printed in the proper form of evidence and the voluminous evidence on the subject of appointments, and on the practice of the government are such as to require considerable investigation in order to point out to the Senate the efficacy of what is to be proved, it is therefore our duty now to suggest and accompany it with the suggestion of the managers that until to-morrow should be given for the introduction of the argument on their part, that you would consider this statement that I have inade to you, and see whether it is not better in all respects that the matter should be now disposed of, in which the managers will concur, and consider the Providential interference with the President's counsel and his confidential friend and adviser. The suggestion is that an interval of two days should be given, and, as I understand, the managers believe that it is better that it should occur now than later.

Mr. BOUTWELL said he would express no opinion upon the request made by the learned counsel, but he desired that whatever time was given should be granted at once, as he wished to make further and a more careful examina

tion of papers than he had yet been able to do. Under the circumstances, however, he did not feel at liberty to ask the favor on his own account.

Mr. EVARTS made an additional remark that if Mr. Stanbery's expectation to be able to speak should be disappointed, it was a matter of some importance to the defense to be able properly to supply his place.

Mr. JOHNSON moved that when the Senate, sitting as a court, adjourn, it be until Thursday morning next. Several Senators-"Wednesday."

Mr. JOHNSON-I modify the motion, Mr. Chief Justice, by making it Wednesday.

Mr. DOOLITTLE suggested at twelve o'clock.
Several Senators-"No," "No."

Mr. LOGAN-I wish to make a request. Is this the proper time to do it?

Chief Justice-Yes.

Mr. LOGAN-I desire to make a request of the Senate before it adjourns. Doubtless the adjournment will proceed on the statement of the managers and the commisel. It is this, I had not presumption enough to ask leave of the Senate to speak on the issue presented to the Senate, but I ask that I may be permitted to file to-day a printed argument that I have made as part of the record, without taking up the time of the Senate, inasmuch as the evidence is all in.

Senator STEWART-I move that leave be granted.

- Chief Justice-As that would involve a change of the rule, it cannot be done if there is any objection. Senator BUCKALEW-I object.

Senator JOHNSON-May I ask the Hon. manager if the speech is now in print.

Mr. LOGAN-It is.

Senator WILSON called for the reading of the rule in question. The twenty-first rule was read.

Mr. LOGAN added that his reason for making this request to file it to-day was so that the counsel for the respondent, if they thought it worthy of it, might reply,

The Chief Justice again said that under the rule it could not be considered except by unanimous consent. Mr. BUTLER There is no objection.

Mr. DOOLITTLE-I object.

A

Mr. BUTLER Before the adjournment of the Senate, I beg to call the attention of the counsel for the respondent to one feature. It so happens that the managers, under the construction given to the rule, are to proceed first. large mass of testimony has been introduced upon the subject of removals and appointments. I am not informed whether these are special cases on which the counsel for the respondent rely. I think it may be proper for me at this time to ask them whether these are cases on which they purpose to rely as furnishing precedents for the course pursued by the President on the 21st of January.

Mr. ANTHONY-I will make a motion to lie over until to-morrow, that the twenty-first rule be so modified as to allow the honorable manager to present his views in writing.

Ordered, That the honorable manager, Mr. Logan, have leave to file his written argument to-day, and furnish a copy to each of the counsel for the respondent.

Mr. SHERMAN offered the following as an amendment:

Ordered, That the managers on the part of the House of Representatives, and the counsel for the respondent have leave to file written arguments before the oral argument

commences.

Mr. SHERMAN accepted the amendment.

Mr. BUCKALEW again objected, and the rule went

over.

Senator Johnson's motion, that when the court adjourn it be to meet on Wednesday next, was agreed to. The court then, on motion, adjourned,

PROCEEDINGS OF WEDNESDAY, APRIL 22.

The court was opened with the usual formalities at eleven o'clock A. M.

Filing of Written or Printed Arguments. The Chief Justice stated the first business in order was the consideration of the following order, offered by Senator Sumner:

Ordered, That the managers on the part of the House of Representatives have leave to file written or printed arguments before the oral argument commences.

Senator VICKERS offered an amendment proposing to allow such of the managers as are not authorized to speak to file written or printed arguments, or make oral addresses, and the counsel for the President to alternate with them in so doing,

Mr. CURTIS-Mr. Chief Justice:-It may have some bearing upon the decision of this proposition if I state what I am now authorized to state, that of the counsel for the President, Mr. Stanbery's indisposition is such that it will be impracticable for him to take any further part in the proceedings.

The substitute was agreed to by the following vote:YEAS-Messrs. Buckalew, Cragin, Davis, Doolittle, Edmunds, Fessenden, Frelinghuysen, Grimes, Hendricks, Johnson, McCreery, Morrill (Me.), Morton, Norton, Patterson (N. H.). Patterson (Tenn.), Saulsbury, Sprague, Tipton, Trumbull, Van Winkle, Vickers, Willey, Wilson and Yates-25.

NAYS. Messrs. Cameron, Cattell, Chandler, Conness, Corbett, Drake, Ferry, Henderson. Howard, Howe, Morgan, Morrill (Vt.). Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer and Williams-20.

The question recurring on the order as amended, it was lost by the following vote:

YEAS.-Messrs. Buckalew, Cragin, Davis, Doolittle, Fowler, Hendricks, Johnson, McCreery, Morton, Norton, Patterson (N. II.), Patterson (Tenn.), Saulsbury, Sumner, Tipton, Trumbull, Van Winkle, Vickers, Willey, Wilson and Yates-20.

NAYS.-Messrs. Cameron, Cattell, Chandler. Conness, Corbett, Drake, Edmunds, Ferry, Fessenden, Frelinghuysen, Grimes, Henderson, Howard, Howe, Morgan, Morrill (Me.), Morrill (Vt.), Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Thayer and Williams-26.

Mr. STEVENS---Mr. President, I desire to make an inquiry, and that is, whether there is any impropriety in the managers publishing short arguments? After the motion made here on Saturday, some few of us, I among the rest, commenced to write out a short argument, which I expect to finish by to-night, which, if the first order had passed, I should have filed. I do not know that there is any impropriety in it except that it will not go into the proceedings. I do not like to do anything improper, and hence I make the inquiry.

Senator FERRY-Mr. President, I would inquire whether it would be in order to move the original order, on which we have taken no vote.

The Chief Justice-It would not, as the Chief Justice understands the matter has been disposed of. The reading of the order submitted by Senator Stewart some days ago, was called for, and it was read, as follows:

That one of the managers on the part of the House be permitted to file his printed argument before the adjournment to-day, and that after an oral opening by a manager, and the reply of one of the President's counsel, shall have the privilege of filing a written or of making an oral address, to be followed by the closing speech of one of the President's tounsel, and the final reply of a manager, under the existing rule. The Chief Justice said it could be considered by unanimous consent.

Senator Conness' amendment was rejected by the following vote.

YEAS-Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ferrv, Henderson. Howard, Morrill (Vt.), Patterson (N. H.), Pomeroy, Ramsey, Sherman, Stewart, Sumner, Thayer. Tipton, Willey, Williams, Wilson and Yates-24.

NAYS Messrs. Anthony, Bayard, Buckalew, Davis, Dixon, Doolittle, Edmunds, Fessenden, Fowler, Frelinghuysen, Grimes, Hendricks, Howe, Johnson, McCreery, Morgan, Morton, Norton, Patterson (Tenn.), Ross, Saulsburv, Sprague, Trumbull, Van Winkle and Vickers-25.

The question recurred on the order offered by Sena-. tor Stewart, and

On motion of Senator JOHNSON, it was amended by striking out the word "one" in the first line and inserting two."

Mr. Manager WILLIAMS suggested that the order would leave the matter enbstantially as it stood before, as but one of the managers was prepared with a printed argument. If it was amended so as to allow them to file written or printed arguments, it would be satisfactory.

On motion of Senator SHERMAN, the order was so modified.

Senator GRIMES inquired how it was possible for the counsel for the respondent, if the printed or written arguments were filed to-day, to examine them Eo as to reply to-morrow morning.

Senator HOWARD-It is not necessary.

Mr. CORBETT moved to strike out the word "another" and insert the word "two" before the words "of the President's counsel."

Mr. EVARTS-Mr. Chief Justice and Senators:Will you allow me to say one word on this question? As the rule now stands, two of the President's counsel are permitted to make oral arguments. By the amendment, without the modification of inserting "two" instead of "another," we understand that three of the President's counsel will be enabled to make oral arguments to the Senate. That is as many as under the circumstances could wish, or be enabled to do so.

At the suggestion of Mr. Trumbull, Senator CORBETT withdrew his amendment.

Mr. STEVENS-Mr. President, this would embarrass the managers very much. Would it not do so that the managers and counsel of the President may file written or printed arguments between this time and the meeting of the court to-morrow? That would relieve us from the difficulty.

Senator CONNESS, at the instance, he said, of one of the managers, moved to amend by striking out the words, "before the adjournment to-day," and inserting, "before noon to-morrow. Agreed to.

Senator HENDERSON offered the following substitute-Provided, That all the managers not delivering oral arguments, may be permitted to file written arguments at any time before the 24th instant, and the counsel for the President not making oral arguments may file written arguments at any time before eleven o'clock on Monday, the 27th instant.

Senator THAYER moved to lay the whole subject on the table. Rejected. Yeas, 13; nays, 37.

Mr. NELSON, of the President's counsel, said he had felt an irresistible repugnance to say anything to the Senate on this subject. He was averse to addressing an unwilling audience-the Senate having indicated by ruie that they were unwilling to allow any further argument thereof. The President's counsel's, by consent of the rest, had assumed the direction of the case, and to them had been committed the task of arguing it. As the probabilities were now, however, it was not likely that Mr. Stanbery would be able to make the final argument, and he (Mr. Nelson) would ask permission to address the Senate on the side of the President.

He thought the rule should be so enlarged as to allow the privilege to all of the President's counsel who chose to exercise it. Under the circumstances, they had not prepared written arguments, and it was too late now to do so. He was prepared from memoranda, however, to make an oral argument, and hoped he would be allowed to do so. He had lived too long to be animated by any spirit of idle vanity in making this request. He was aware that sometimes more was gained by silence than by speech. He was satisfied that the President desired that the case should be argued by all the counsel, and he had no objections that the same privileges should be extended to all the managers. In the case of the impeachment of Judge Chase, six managers and five counsel were heard. He trusted that in such a momentous case, no limit would be placed on the argument.

Senator HOWARD inquired whether the proper construction of the amendment of the Senator from Missouri (Mr. Henderson), would not leave the door open and repeal the twenty-first rule; in short, whether it would not allow all the counsel on the part of the accused and all the managers, should they see fit, to make oral arguments on the final summing up.

Senator CONNESS proposed, in order to make it entirely clear, to insert in the amendment the words, "subject to the twenty-first rule."

The proposition was agreed to..

Senator TRUMBULL moved the following as a substitute:

Ordered, That as many managers and of counsel for the President as desire to do so be permitted to file arguments or to address the Senate orally.

The substitute was agreed to. Yeas, 29; nays, 20, as follows:

YEAS.-Messrs. Anthony, Buckalew, Conkling, Cragin, Davis, Doolittle, Edmunds, Ferry, Fessenden, Fowler. Grimes, Henderson, Hendricks, Johnson. McCreery, Morrill (Me.), Norton, Patterson (N. H.), Patterson (Tenn.), Ramsey, Saulsbury, Sherman, Sprague, Tipton, Trumbull, Van Winkle, Vickers, Willey and Yates-29.

NAYS.-Messrs. Cameron, Cattell, Chandler, Conness, Corbett, Dixon, Drake, Frelinghuysen, Harlan, Howard. Howe, Morgan, Morrill (Vt.), Morton, Pomeroy, Koss, Stewart, Sumner, Thayer, and Williams-201

Senator BUCKALEW moved to amend the substitute by adding to it the following words:-"But the concluding oral argument shall be made by one manager, as provided by the twenty-first rule."'

Various other amendments were offered and voted down, and finally, after nearly two hours spent in attempts to settle the question, the substitute offered by Senator Trumbull, as amended on motion of Senator Buckalew was adopted instead of the original order. Mr. Manager BOUTWELL, then, at ten minutes before one o'clock, proceeded to make his argument

to the Senate.

Manager Boutwell's Argument.

Mr. President, Senators:-The importance of this occasion is due to the unexampled circumstance that the Chief Magistrate of the principal republic of the world is on trial upon the charge that he is guilty of high crines and misdemeanors in office. The solemnity of this occasion is due to the circumstance that this trial is a new test of our public national virtue and also of the strength and vigor of popular government. The trial of a great criminal is not an extraordinary event-even when followed by conviction and the severest penalty known to the laws. This respondent is not to be deprived of life, liberty, or property. The object of this proceeding is not the puuishment of the offender but the safety of the State. As the daily life of the wise and just magistrate is an example for good, cheering, encouraging, and strengthening all others. so the trial and conviction of a dishonest or an unfaithful officer is a warning to all men, especially to such as occupy places of public trust.

The issues of record between the House of Representaand Andrew Johnson, President of the United States, are technical and limited. We have met the issues, and, as we believe, maintained the cause of the House of Representatives by evidence, direct, clear and conclusive. Those issues require you to ascertain and declare whether Andrew Johnson, President of the United States, is guilty of high crimes and misdemeanors as set forth in the several articles of impeachment exhibited against him, and espe cially whether he has violated the laws or the Constitution of the country in the attempt which he made on the 21st of February last, to remove Edwin M. Stanton from the office of Secretary for the Department of War, and to appoint Lorenzo Thomas Secretary of War ad interim.

These are the issues disclosed by the record. They appear in the statement to be limited in their nature and character; but your final action thereon involves and settles questions of public policy of greater magnitude than any considered in the political or judicial proceedings of the country since the adoption of the Constitution.

Mr. Johnson attempts to defend his conduct in the matter of the removal of Mr. Stanton by an assertion of "the power at any and all times of removing from office all executive officers for cause to be judged of by the President alone."

This claim manifestly extends to the officers of the army and of the navy, of the civil and the diplomatic service. In this claim he assumes and demands for himself and for all his successors absolute control over the vast and yearly increasing patronage of this government. This claim has never been before asserted, and surely it has never been sanctioned; nor is there a law or usage which furnishes any ground for justification, even the least.

Heretofore the Senate has always been consulted in regard to appointments, and during the sessions of the Senate it has always been consulted in regard to removals from office. The claim now made, if sanctioned, strips the Senate of all practical power in the premises, and leaves the patronage of office, the revenues and expenditures of the country in the hands of the President alone. Who does

not see that the powers of the Senate to act upon and confirm a nomination is a barren power, as a means of protecting the public interests, if the person so confirmed may be renoved from his office at once of vithout the advice and

consent of the Senate? If this claim shall be conceded the Pre-ident is clothed with power to remove every person who refuses to become his instrument.

find a specific authority in the Constitution or laws. By the Constitution he is Commander-in-Chief of the army and navy; but it is for Congress to decide, in the first place, whether there shall be an army or navy, and the President must command the army or navy as it is created by Congress, and subject, as is every other officer of the army, to such rules and egulations as Congress may from time to time establish.

The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices." but the executive offices themselves are created by Congress, and the duties of each officer are prescribed

The House of Representatives has brought Andrew Johngon. President of the United States, to the bar of this august tribunal, and has here charged him with high crimes and misdemeanors in office. He meets the charge by denying and assailing the ancient, undoubted, constitutional powers of the Senate. Thi- is the grave, national, historical, constitutional issue. When you decide the issues of record. which appear narrow and technical, you decide these greater issues also.

The managers on the part of the House of Representatives, as time and their abilities may permit, intend to deal with their criminal and with these, his crimes, and al-o to examine the constitutional powers of the President and of the senate. I shall first invite your attention, Senatore, to the last-mentioned topics.

It is necessary, in this discussion, to consider the character of the government, and especially the distribution of powers and the limitations placed by the Constitution upon the executive, judicial, and legislative departments.

The tenth amendment to the Constitution provides that "the powers not del gated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This provision is not to be so construed as to defeat the objects for which the Constitution itself was established; and it follows, necessarily, that the three dapartments of the government possess sufficient power, collectively, to accom lish those objects.

It will be seen from an examination of the grants of power made to the several departments of the government that there is a difference in the phraseology employed, and that the legislative branch alone is intrusted with discretionary authority. The first section of the first article provides that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

The first section of the second article provides that "the executive power shall be vested in a President of the United States of America;" and the first section of the third article provides that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." The words "herein granted." as used in the first section of the first article of the Constitution, are of themselves words of limitation upon the legislative powers of Congress, confining those powers within the authority expressed in the Constitution. The absence of those words in the provisions relating to the executive and judicial departments do not, as might at first be supposed, justify the inference that unlimited authority is conferred upon those departments. An examination of the Constitution shows that the executive and judicial departments have no inherent vigor by which, under the Constitution, they are enabled to perform the functions delegated to th m, while the legislative department, in noticable contrast, is clothed with authority to make all laws which shall be necessary and proper for carrying into execution the forogoing powers, and all other powers vested by this Constitution in the government of the United Statts, or any department or officer thereof."

By virtue of this provision the Constitution devolves upon Congress the duty of providing by legislation for the full execution, not only of the powers vested in Congress, but also of providing by legislation for the execu tion of those powers which, by the Constitution are vested in the executive and judicial departments. The legislative department has original power derived from the Con stitution, by which it can set and keep itself in motion as a branch of the government, while the executive and judicial departments have no self-executing constitutional capacity, but are constantly dependent upon the legislative department. Nor does it follow, as might upon slight attention be assumed, that the executive power given to the President is an unlimited power, or that it answers or corresponds to the powers which have been or may be exercised by the executive of any other government. The President of the United States is not endowed by the Contitution with the executive power which was possessed by Henry VIII or Queen Elizabeth, or by any ruler in any other country or time, but only with the power expressly granted to him by the Constitution, and with such other Powers as have been conferred upon him by Congress, for the purpose of carrying into effect the powers which are granted to the President by the Constitution. Hence it may be asserted that whenever the President attempts to exercise any power, he must, if his right be questioned,

tion and to keep it in motion is lodged exclusively in Congress, under the provisions of the Constitution.

By our system of government the sovereignty is in the people of the United States, and that sovereignty is fully expressed in the preamble to the Constitution. By the Constitution the people have vested discretionary powerlimited, it is true-in the Congress of the United States, while they have denied to the executive and judicial departments all discretionary or implied power whatever.

The mature and extent of the powers conferred by the Constitution upon Congress have been clearly and fully set forth by the Supreme Court. (McCulloch vs. the State of Maryland, 4th Wheaton, pp. 409 and 420.) The court, in speaking of the power of Congress, says: "The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." Again, they say: "We admit, as all must admit, that the powers of the government are limited, and that these limits are not to be transcended; but we think the sound construc tion of the Con-tituion must allow to the National Legisla ture that discretion, with respect to the means by which the power it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.

If the thing be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, and consistent with the letter and spirit of the Constitution, are constitutional."

It is also worthy of remark, in this connection, that the article which confers legislative powers upon the Congress of the United States declares that all legislative powers herein granted, that is, granted in the Constitution, shall be vested in the Congress of the United States; while in the section relating to the powers of the President it is declared that the executive power shall be vested in a President of the United States of America. The inference from this distinction is in harmony with what has been previously stated. "The executive power" spoken of is that which is conferred upon the President by the Consti tution, and is limited by the terms of the Constitution, and it must be exercised in the manuer prescribed by the Constitution. The words used are to be interpreted according to their ordinary meaning.

It is also worthy of remark that the Constitution, in terms, denies to Congress various legislative powers speci fied. It denies also to the United States various powers, and various powers enuinerated are likewise denied to the States. There is but one denial of power to the President, and that is a limitation of an express power granted. The single instance of a denial of power to the President is in that provision of the Constitution wherein he is authorized to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." As the powers granted to the President are specified, and as he takes nothing by implication or inference, there was no occasion to enumerate or recite powers not delegated to him. As the Constitution clothes Congress with powers of legislation which are ample for all the ne cessities of national life, wherein there is opportunity for the exercise of a wide discretion, it was necessary to specify such powers as are prohibited to Congress. The powers of Congress are ascertained by considering as well what is prohibited and what is granted; while the powers of the Executive are to be ascertained clearly and fully by what is granted. Where there is nothing left to inference, implication, or discretion, there is no necessity for clauses or provisions of inhibition. In the single case of the grant of the full power of pardon to the Presi dent, a power unlimited in its very nature, the denial of the power to pardon in case of impeachment became necessary. This example fully illustrates and establishes the position to which I now ask your assent. If this view be correct it follows necessarily, as has been before stated, that the President, acting under the Constitution, can exercise those powers only which are specifically conferred upon him, and can take nothing by construction, by im plication, or by what is sometimes termed the necessity of the case.

But in every government there should be in its Constitution capacity to adapt the administration of affairs to the changing conditions of national life. In the Govern ment of the United States this capacity is found in Con gress, in virtue of the provision already quoted, by which Congress is authorized to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (i. e., the powers given to Congress), and all other powers vested by this Cousticntion in the Govern ment of the United States, or in any department or officer thereof."

It is made the duty of the President, "from time to time, to give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.”

United States." One of the provisions of that Conetitation is, that the President shall take care that the laws be faithfully executed." In this injunction there are no qualifying words. It is made his duty to take care that the laws, the laws, be faithfully executed. A law is well defined to be "a rule laid, eet, or established by the lawmaking power of the country." It is of such rules that the Constitution speaks in this injunction to the President; and in obedience to that injunction, and with reference to his duty under his oath to take care that the laws be faithfully executed, he can enter into no inquiry as to whether those laws are expedient, or constitutional, or otherwise. And inasmuch as it is not possible for him, under the Constitution, to enter lawfully uto such inquiry, it is alike in possible for him to plead or to prove that, having entered into such inquiry, which was in itself unlawful, he was governed by a good motive in the result which he reached, and in his action thereupon. Having no right to inquire whether the laws were expedient or constitutional, or otherwise, if he did so inquire, and if upon such inquiry he came to the conclusion that, for any reason, he would not execute the law, according to the terms of the law, then he wilfully violates his oath of office and the Constitution of the United ⚫ States. The necessary, the inevitable presumption in law is, that he acted under the influence of bad motives in so doing, and no evidence can be introduced controlling or coloring in any degree this necessary presumption of the law.

Having, therefore, no right to entertain any motive contrary to his constitutional obligation to execute the laws, he cannot plead his motive. Inasmuch as he can neither plead nor prove his motive, the presumption of the law must remain that in violating his oath of office and the Constitution of the United States he was influenced by a bad motive. The magistrate who wilfully breaks the laws, in violation of his oath to execute them, insuits and outrages the common sense and the common nature of his countrymen when he asserts that their laws are so bad that they deserve to be broken. This is the language of a defiant usurper, of a man who has surrendered himself to the counsel and control of the enemies of his country.

If a President, believing a law to be unconstitutional, may refuse to execute it, then your laws for the reconstruction of the Southern States, your laws for the collection of the internal revenue, your laws for the collection of custom house duties are dependent, for their execution, upon the individual opinion of the President as to whether they are constitutional or not; and if these laws are so de'peudent, all other laws are equally dependent upon the opinion of the Executive. Hence it follows, that whatever the legislation of Congress may be, the laws of the country are to be executed only so far as the President believes them to be constitutional. The respondent avers that his sole object in violating the Tenure of Office act was to obtain the opinion of the Supreme Court upon the question of the constitutionality of that law. In other words, he deliberately violated the law, which was in him a crime. for the purpose of ascertaining judicially whether the law could be violated with impunity or not. At that very time, he had resting upon him the obligations of a citizen to obey the laws, and the higher and more solemn obligation, imposed by the Constitution upon the first magistrate of the country, to execute the laws. If a private citizen violates a law, he does so at his peril. If the President, or Vice President, or any other civil officer, violates a law, his peril is that he may be impeached by the House of Representatives and convicted by the Senate. This is precisely the responsibility which the respondent has incurred; and it would be no relief to him for his wilfull violation of the law, in the circumstances in which he is now placed, if the court itself had pronounced the same to be unconstitutional. But it is not easy to comprehend the audacity, the criminal character of a proceeding by which the President of the United States attempts systematically to undermine the government itself by drawing purposely into controversy, in the courts and elsewhere, the validity of the laws en acted by the constituted authorities of the country, who, as much as himself, are individually under an obligation to obey the Constitution in all their publie acts. With the same reason, and for the same object, he might violate the Reconstruction laws, Tax lawe, Tariff acts, or the Neutra ilty laws of the country; and thus, in a single day of his official life, raise questions which could not be disposed of for years in the courts of the country. The evidence discloses the fact that he has taken no step for the purpose of testing the constitutionality of the law. He suspended numerous officers under, or if not under, at least, as he himself admits, in conformity with the Tenure of Office law, showing that it was not his sole object to test its constitutionality. He has had opportunity to make application through the Attorney-General for a writ of quo warranto, which would have tested the validity of the law in the courts. This writ is the writ of the government, and it can never be granted upon the application of a private person. The President never attempted to test the law in the courts. Since his attempted removal of Mr. Stanton on the 21st of February last, he might have instituted proceedings by a writ of quo warranto, and by this time have obtained, probably, a judicial opinion covering all the points of the case. But he shrinks from the test he says he sought. Thus is the pretext of the President fully exposed. The evidence shows that he never designed to test his rights in the courts. His object was to seize the offices of the government for purposes of corruption, and by their influence to enable him to reconstruet the Union in the interest of the rebellious States. In short, he resorted to this usurpation as an efficient and necessary

means of usurping all power, and of restoring the gov erument to rebel hands.

No crminal was eyer arraigned who offerad a more un satisfactory excuse for his crimes. The President had no right to do what he says he designed to du, and the ey dence shows that he never has attempted to do what he now assigns as his purpose when he trampled the laws of the country under his feet.

These considerations have prepared the way in some de gree, I trust, for an examination of the provisions of the Constitution relating to the appointment of ambassadors and other peblic ministers and consul, judges of the Supreme Court, and other officers of the United States, for whose ap pointment provision is made in the second section of the second article of the Constitution. It is there declared that the President "shall nominate." and, by and with the con sent of the Senate, shall appoint ambassadors and other puble ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appoint ments are not herein provided for and which shall be estab lished by law." The phrase, "are not herein otherwise pro vided for," isu nderstood to refer to Senators, who, under the Constitution, in case of vacancy, and may be ppaointed by the governors of the several States, and to those appoin ments which might be confided by law to the courts or the heads of departments. It is essential to notice the fact that neither in this provision of the Constitution nor in any other is power given to the President to remove any officer. The only power of removal specified in the Constitution is that of the Senate, by its verdict of guilty, to remove the Prest dent, Vice President, or other civil officer who may be im peached by the House of Representatives and presented to the Senate for trial.

Upon the premises already laid down it is clear that the power of removal from office is not vested in the President alone, but only in the President by and with the advice and consent of the Senate. Applying the provision of the Constitution already cited to the condition of affairs exist ing at the time the government was organized, we find that the course pursued by the first Congress and by the first President was the inevitable result of the operation of this provision of the organic law. In the first instance Eeveral executive departments were established by acts of Congress. and in those departments offices of various grades were created. The conduct of foreign affairs re quired the appointment of ambassadors, ministers and con suls, and consequently those necessary offices were estab lished by law. The President in conformity with this pro vision of the Constitution, made nominations to the Sen ate of persons to fill the various offices so established. These nominations were considered and acted upon by the Senate, and when confirmed by the Senate the persons so nominated were appointed and autho ized by commissions under the hand of the President to enter upon the discharge of their respective duties. In the nature of the case it was not possible for the Prest dent, during a session of the Senate, to assign to duty in any of the offices so created by any person who had not been by him nominated to the Senate, and by that body confirmed, and there is no evidence that any such attempt was made. The persons thus nominated and confirmed were in their offices under the Constitution and by virtue of the concurrent action of the President and the Senate. There is not to be found in the Constit tion any provision contemplating the removal of such persons from office. But inasmuch az it is essential to the proper administration of affairs that there should be a power of removal, and inasmuch as the power of noming tion and confirmation vested in the President and in the Senate is a continuing power, not exhausted either by a Bingle exercise or by a repeated exercise in reference to a particular office, it follows legitimately and properly that the President might at any time nominate to the Senate a person to fill a particular office, and the Senate, in the exercise of its constitutional power, could confirm that nomination, that the person so nominated and confirmed would have a right to take and enjoy the office to which he had so appointed, and thus to dispossess the previous inumbent. It is apparent that no removal can be made unless the President takes the initiative, and hence the ex pression "removal by the President."

As by a common and universally recognized principle of construction, the most recent statute is obligatory and con trolling wherever it contravenes a previous statute, so a recent commission, issued under an appointment made by and with the advice and consent of the Senate, supersedes a previous appointment although made in the same man ner. It is thus apparent that there is, under and by virtue of the clause of the Constitution quoted, no power of fo moval vested either in the President or in the Senate, or in both of them together as an independent power; but it is rather a consequence of the power of appoinment. And a the power of appointment is not vested in the President. but only the right to make a nomination, which becomes an appointment only when the nomination has been co firmed by the Senate, the power of removing a publi officer cannot be deemed an executive power solely within the meaning of this provision of the Constitution.

This view of the subject is in harmony with the opinion expressed in the seventy-sixth number of the Federal After stating with great force the objections whic exist to the "exercise of the power of appointing to office by an assembly of men," the writer proceeds to say:

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made in this respect by the con vention. They centend that the President ought solely to have been authorized to make the appointments under the Federal Government. But it is easy to show that every