The Sun.
London, England, 1868-03-25 00:00:00

THE SUN, LONDON, WEDNESDAY EVENING, MARCH 25, 1868.

TRIAL OF " CAPTAIN" MACKAY.

SCENE IN COURT.

DUBLIN, March 23. -

The fate of " Captain" Mackay is already known,
but the closing scene of the trial deserves some no-
tice on account of the incidents it presented and the
moral it enforced. Before the sitting of the judges
at 10 o'clock the court-house was filled with spec-
tators, of whom a large proportion were of the gen-
tler sex. Mackay's career had enough of gallantry
and romance about it to make him a favourite of
theirs, and the fact that he was only a few months
married to a fair maiden of this our city increased
the sympathy which they felt for him. He was
brought down to the court-house in the police-van
with other prisoners, who shared with him the
cheers of a crowd which awaited their arrival. Mr.
Justice O'Hagan having taken his seat, Mackay
was at once put forward to receive sentence, and
in answer to the usual question whether he had
anything to say, proceeded to take advantage
of the privilege, which with questionable policy
is still retained among our judicial forms,
and, following the example of other convicts,
delivered to the assembly a speech from the
dock. As a specimen of Fenian eloquence it would
bear favourable comparison with other orations of
the same class, and in some respects, so far as it
illustrated the character of the speaker, it was very
superior. There was a creditable absence of in-
solence or braggadocio, such as other " captains"
who made clumsy attempts to play the hero exhi-
bited. His bearing was respectful to the Court,
and he spoke with an earnestness which seemed to
indicate that he was no selfish adventurer, but a
rash enthusiast in what he believed to be a pa-
triotic cause. He commenced by qualifying his
expression of satisfaction with the verdict by ex-
plaining that he only considered it fair and just
according to British law, but it was not in accord-
ance with his sense of right and justice. He
thanked the jury for their recommendation to
mercy, but said, with all respcet, that he felt the
utmost indifference to it, and for this reason, that
he relied entirely upon the goodness of God, and
felt condfident that He would so dispose events
that he would not remain a prisoner so long as his
lordship might be pleased to decree. He believed
from what he had seen and heard of his lordship it
would be a painful duty for him to pronounce sen-
tence, but with respect to its effect upon himself,
he observed—

" To one clinging so much to the world and its joys, to
its fond ties and pleasant associations, as I naturally do,
retirement into banishment is seldom—very seldom—wel-
come. Of that, however, Ido not complain. But to any
man whose heart glows with the warmest impulse and the
most intense love of freedom, strongly attached to kind
friends, affectionate parents, loving brothers and sisters,
and a devotedly fond and loving wife, the ,contemplation
of a long period of imprisonment must appear most ter-
rible and appalling. To me, however, viewing it from a
purely personal point, and considering the cause for which
I am about to suffer, far from being dismayed—far from
its discouraging me—it proves to me rather a source of joy
and comfort."

He admitted that his was not a desirable position,
but he repudiated the notion that there was any dis-
grace attached to it. Su far from thinking it discre-
ditable, he felt proud and glad that it afforded him
" an opportunity of proving the sincerity of those
soul-elevating principles of freedom which a good
old patriotic father instilled into his mind," and
which he still entertained " with a strong love
whose fervour and intensity are second only to the
sacred homage which we owe to God." If he was
to be deprived of the glad and joyous years which
he should have spent among loving friends, he
would not complain, but " joyfully accept God's
blessed will, feeling confident that Ile will open the
strongly-locked and barred doors of British pri-
sons." Till then it was consolation and reward
enough for him to know that he had " the fervent
prayers, the sympathy, and loving blessings of Ire-
land's truly noble and generous people," and far
more comforting to him to go back to his cheerless
cell than to live in slavish ease and luxury, " a
witness to the cruel sufferings and terrible miseries
of this down-trodden people." lle then ex-
claimed :

" Condemn me then, my Lord—condemn me to a felon's
doom. To-night I will sleep in a prison cell ; to-morrow
I will wear a convict's dress; but to me it will be a far
nobler garb than the richest dress of slavery. Coward
slaves they be who think the countless sufferings and de-
gradation of a prison life disgraces a man. I feel other-
wise. It is as impossible to subdue the soul animated with
freedom as it will be for England to crush the resolute will
of this nation, determined as it is to be free, or perish in
the attempt."

The facts which had been fairly proved against him,.
he said, though crimes according to British law, were
morally, in the sight of freemen and of God, more
ennobling than disgraceful. It was no crime to
assist our fellowmen to acquire their God-given
rights, which no nation could justly deprive them
of. If devotion to Ireland and its faithful, its
h0,..-est, its kind people was a crime, he proudly
acknowledged his guilt ; if it was a disgrace he
gloried in the stiame ; aud, with all respect for the
Court, he held in thorough contempt the worst
punishment that could be inflicted upon him.
" England," he added, " will most miserably
fail if she expects by force and oppression to
stamp out, as the Times exclaimed, this glorious
longing for national life and independence which
now fills the breasts of millions of Irishmen, who
only require a little patience and the opportunity of
effecting their purpose." In this impassioned strain
he continued to address the Court. He vindicated
Fenianism from the imputation of selfishness,
declaring that very few persons, except such con-
temptible wretches as Corydon, have profited by
their connexion with it. His best friends had lost
all they ever possessed by it. He denied the truth
of the statement made by Corydon and Talbot that
the Fenians intended to divide the land of Ireland
among themselves, and said that he had the honour
of being acquainted with the great majority of the
leaders, and he " never knew one of them to have
exhibited a desire other than to have the proud
satisfaction of freeing Ireland." As for himself,
when he came to Ireland in 1865 it was to assist an
enslaved people, and he knew that the greatest
sacrifices would have to be endured before they
raised the country to the proud position described
by the national poet :

, glorious, and free,
"First flower of the earth, first gem of the sea."
Liberty, he remarked, if worth possessing, is surely
worth fighting for, and he felt that enormous sacri-
fices must be made in the struggle, of which he told
the Crown lawyers and Government of England
they had not yet seen the commencement. He was
ready to meet his fate with the approval of his own
conscience, hoping for God's forgiveness for any-
thing he might have done to displease Him, and re-
lying upon His sustaining grace to enable him to
bear any punishment, no matter how severe, so long
as it was for " glorious old Ireland." lie then en-
tered into a long explanation to show he did not
memorialise the Lord Lieutenant to be released from
custody, or violate the condition upon which he was
liberated in 1867. He charged Corydon with hav-
ing concocted a story as to his proceedings in Liver-
pool. He thanked his lordship for his fair and im-
partial conduct during the trial, observing if there
was anything not impartial in it at all, it was in his
favour and not in that of the Crown, and that be
thought was the duty of a judge, because the prisoner
is always on the weak side and the Crown has all the
power and influence that the law and a full exche-
quer can give it. Adopting the last words of
Larkin, " the martyr of Manchester," and of his
cld friend Condon, he exclaimed " God save Ire-
land ; God be with you, Irishmen and women ;
God save you ; God bless Ireland ; and God grant
me strength to bear my task for Ireland as becomes
a man. Farewell." Observing that some of the
audience evinced emotion at this period, he re-
pudiated any feeling of despair, and said he felt
" confident that there is a glorious future in store
for Ireland, and that, with a little patience, a little
organisation, and a full trust in God on the part of
the Irish people, they will be enabled to obtain it
at no distant date. He resumed his seat amid a
suppressed murmur of applause, and remained sitting
until the learned Judge came to the passage in de-
livering the sentence in which the punishment was
announced.

The learned judge sentenced the prisoner to 12-
years' penal servitude.

THE TRIAL OF 711 E PRESIDENT.

The composition of the Court organized for the
trial of ANDREW JOHNSON, President of the United
States, is much discussed. People freely ask, Will
it condemn the PRESIDENT? And generally this is
answered by counting up the Republican Senators,
and pitting them against those of the Democratic
side. There can be no question about the fact that
party spirit will have its influence ; indeed a con-
trolling influence. But the people are very unjust to
the Senators, as a body, who calculate that they would
vote on these criminal charges as they would vote
on a mere party question.. Being a legislative body,
accustomed to follow party leaders, and accustomed
to yield to the influence of party pressure, it would
be absurd to suppose that they would be wholly
free from party bias, knowing that the failure to
convict and depose the PRESIDENT must end dis-
astrously to the Republican party. There are 53
Senators, of whom, if all vote, 36 will be required
to convict ; therefore if 18 Senators can be found
to pronounce Mr. JOHNSON innocent the trial breaks
down, and he will return in triumph to the
White House. Not quite four-fifths of the Sena-
tors are Republicans, and if they voted on a
strictly party basis the conviction would be
secured. But although we do not hold the
strong faith of the Spectator that a Repub-
lican Senator would no more vote against ANDREW
JOHNSON, biassed by political motives, than that
Lord CAIRNS would rule against a Liberal suitor,
and give his estate to a Tory, yet we believe that the
question will in some degree be decided on its merits.
The debate on the rules of procedure was calm,
deliberate, and affording evidence of a just spirit.
These rules give the defendant every chance. Even
in the House, in electing the managers, two good,
sound lawyers were chosen, Mr. WILSON, of lowa,
and Mr. BINGHAM, of Ohio, the latter obtaining
most votes of the seven, though to the present time
opposed to Impeachment, and Mr. STEVENS, its
pertinacious and powerful advocate, obtaining the
fewest. The extraordinary pluck of THADDEUS
STEVENS has excited much admiration, even among
those disgusted with his violent partisan character. He
is acting on the verge of the grave, and with a physical
strength scarcely sufficient to enable him to stand.
Yet he has been the ruling spirit in the proceedings.
No doubt the representative thinks he is engaged in
the performance of a sacred duty. But it is painful
when one placed in so solemn a position de-
claims with more regard to effect than to truth.
"Never before," he cried, " was so great a male-
factor so gently treated as ANDREW JOHN-
SON. His corruption of others was a crime
more heinous than that which had brought many
ancients to the block ; to which he was prompted
by the same motives that made the angels fall."
All the other managers are lawyers. Mr. LOGAN,
in addition to his reputation (not much) as a
jurist, is distinguished for his services as a soldier,
both in the Mexican and in the Civil Wars. So far
for the Court and the managers of the prosecution.
The main charges amount in effect to the attempt
of removing Mr. STANTON from the War Depart-
ment through General THomas, appointed to act
ad interim. The other is in the inducement
offered to General E3IORY to violate the Act,
March 2, 1867, by which military orders are directed
to be sent for execution to the General of the Army.
The two last articles afterwards added are repro-
ductions of the old Impeachment subject. It is clear
that the question of the infringement of the law
must hinge on the order which broke the Tenure-of-
Office Act. General EMORY'S testimony has been
published, as well as that of Colonel GEORGE W.
WALLACE, and the country is astonished at the
weakness displayed. So apparent is this, that the
House is generally condemned for retaining such a
charge, and it has done much to cool down the
people on the question of Impeachment. This
miserable article, so feebly supported ; the frantic
declamation of many of the Representatives when
the subject first came up ; the insane publications
by.the Tribune from its Washington correspondent,
which, by-the-bye, jest week furnished matter for
an article to the Satunkoli Review, all tended to
" choke off" the people. Mr. JOHNSON is regarded
as a nuisance, but the mass believe ?n the honesty of
his intentions, and the people insist upon his being
fairly tried. He desires, if the report be true,
to meet the issues broadly and fairly. Few
are admitted to tlie Executive mansion, as he
is absorbed in the preparations for his trial,
being closeted for hours with STANBERRY and
BLACK, to whom he has given instructions
to the effect. The points on which he is pre-
sumed to rely are that he has not violated the
law, as the Act only deprives him of the power of
removing those he has himself appointed, and that
if he has violated it he has not done so with guilty
intent. The answer to the first will perhaps be
found in the law itself, for that must decide Mr.
JOHNSON'S position. Is not Mr. JOHNSON Mr. LIN-
COLN'S substitute—not his successor—performing
the duties for the remainder of the term for which
the bullet of the assassin incapacitated the legally
elected PRESIDENT ? The second point raises the
question, How a President is to test the validity
of a law. On this point the New York Nation
says :

" As a general rule, the PRESIDENT may not
exercise an independent judgment, and determine
whether a statute regularly passed by Congress is
valid before he proceeds to execute it, or to take
care that it be faithfully executed. This opinion
has certainly been maintained by most American
statesmen and publicists, although its correctness
has been denied by political writers of no small re-
putation and ability. The arguments in support of
the negative are substantially two. It is said that
the PRESIDENT must only execute the laws, and not
those legislative acts which have a legal semblance
merely, but are void ; that an unconstitutional sta-
tute is no more a law than if it had never received
the assent of the Legislature ; and that no power is
given to execute this nullity. It is also said that
the oath taken by the PRESIDENT imposes upon him
a personal and most weighty responsibility ; that he
is bound by it to be guided by his own judgment,
by his own conviction of what is lawful, and not by
the convictions and judgments of others. These
arguments either prove too much or they beg the
question. All important officers, State or national,
are required to take an oath to support the Consti-
tution. The PRESIDENT'S oath is but an amplifica-
tion of this. The solemn promise in detail to pre-
serve, protect, and defend the Constitution' does
not imply more than the equally solemn promise to
' support' it; the conscience is bound by the one no
more than by the other. If, then, the PRESIDENT
obtains from his oath any authority to judge of the
validity of a statute, the same is shared with him
by every legislative, judicial, and executive officer
of the States and of the nation. Reduce such a
principle to practice, and absolute anarchy would
be the immediate result. And when it is said that
the PRESIDENT is only bound to execute laws and
not void statutes, this is assuming the very point in
dispute. The whole question is, Are certain laws
valid or void ? and giving him power to decide is
to make him the sole dispenser of statutes, to clothe
him with an absolute veto after his qualified nega-
tive has been overruled, to place him above Con-
gress and the courts. The whole theory and plan
of the Government demand, therefore, the adoption
and strict observance of the general doctrine stated
at the outset, and the ready acquiescence in it by all
officers of the executive department from the lowest
subordinate up to the chief magistrate."
The Nation proceeds to discuss the nature of
the PRESIDENT'S powers as a whole, classifying the
various functions into three groups. The First are
those unconnected with legislation, conferred by
the Constitution, which exist and might be carried
into operation if Congress should blot out all its
laws, or should attempt to limit and restrain the
PRESIDENT from calling tlfetn into action. The
Second are those derived from statutes of Congress,
in which may be ranged the functions of Com-
mander-in-Chief, the pardoning power, and the ap-
pointing power. The PRESIDENT'S capacity as Com-
mander-in-Chief remains dormant until Congress
has raised an army or navy ; his appointing power
cannot be exercised until C.mgress has created the
offices to be filled, and here may be placed, if it
belongs to him, his power of removal. The Third
contains those Executive functions and attributes
which depend upon prior laws of Congress, and
over this the Legislature has complete control.
It passes laws that must be executed. It may
leave a large discretion to or take away
all discretion from the PRESIDENT. It may,
and generally does entrust the actual execution to
subordinate officers, with instructions plain and

positive, so that the only duty of the PRESIDENT is
to take care that the law shall be faithfully exe-
cuted. Not only, says the .Natlon, has the PItESI-
DENT no authority to exercise an independent judg-
ment upon the validity of statutes which set in
motion his attributes of this class, and to refuse to
execute them, but he has no authority to test that
validity in any manner. The means of testing
must come from another source. The law is to be
executed by himself or some subordinate ; in either
case it must be executed. It is a mooted question
whether the Constitution confers upon the PRESI-
DENT the power to remove from office. If it be-
longs to him, it cannot be limited or restrained by
direct legislation. The Tenure-of-Office Act inter-
feres with this power, and the only method by
which the law can be tested is for the PRESIDENT to
violate it, and remove without consultingthe Senate.
No one in this can have any legal right invaded
but the PRESIDENT, and if he remains passive the
law must stand ; nor can the PRESIDENT bring the
question to a judicial determination by any legal
proceeding, such as a writ of quo warrant°,
as the officer, if left undisturbed, will have a
complete answer to the writ by proving his original
appointment, and the fact that he has not been
removed. Therefore, as the preliminary step, he
must remove the officer, and violate the statute
Unless the power of Congress over the Executive
functions is absolute, and its decision upon the Con-
stitution final, we cannot escape the conclusion that
in these instances the PRESIDENT must, to bring the
validity of a statute to the test, intentionally dis-
regard its commands. But he does so at his own
risk ; and the action of Congress against him is then
a question of policy, or of abstract justice, rather than
of positivelaw. Judging from theelaborate argument
of the .Nation we have attempted briefly to summa-
rize, we presume its able writer considers that the
PRESIDENT can successfully defend himself against
having violated the paw with guilty intent. Now
that the froth and foam of impeachment has sub-
sided, men are engaged in discussing calmly the
" high crimes and misdemeanours," and the case of
Congress the more it is looked into the weaker it
appears. But, if the Republican party fail, the im-
pression is that it will be ruined; nearly four-fifths
of the Senate are Republican, the strength of the
political current is far greater in the States than in
England, the party pressure stronger, and if the
Senate can acquit Mr. JOHNSON it will be the
greatest act of political virtue ever witnessed in a
egislative body.—Anglo-American Times.

THE HUSH CHURCH.

- o --~

There is nothing like positive knowledge
and clearness of ideas before venturing to speak
upon any subject. If untoward circumstances
should compel a man into the discussion of a
matter to which for years he had been habit-
ually indifferent, then, in spite of the per-
fection of ready tact, in spite of every graceful
subtlety of oratorical art, he would succeed
only in amusing both friends and enemies. So
has' it happened with Mr. Disraeli. He has
spoken eloquently and at great length upon
a vital question—a question which this gene-
ration intends to see answered for once and
all—a question involving to the fullest extent
the claim of our character to honour and jus-
tice. But it has been " words "—nothing
more. A delicate artifice of this sort may,
indeed, have been successful in throwing the
political Poloniuses off the true scent ; but
the people of this country must be dealt with
differently. With them the Irish Church ques-
tion is one of plain, particular facts, not to be
disposed of by the cleverest powers of gene-
ralization. Englishmen are beginning to realize
this truth, that Ireland is a large fertile island,
with a population, let us say, of five millions,
and bound to this country by no other power
than that of conquest. They know that it took
300 years to complete the subjugation of this
people, and that at different times, from the
twelfth century to the present day, they have
risen up against the English domination. They
remember to have read that, in one way or the
other, by the Kilkenny Parliament of 1367, by
the lieutenancy of Strafford and Cromwell,
by the severe measures of the reign of Anne,
by the injustice of 1727 (when the elective
franchise was wholly taken away from them),
the Irish people have been incessantly kept in
an attitude of hostility to this country. But
men with anything worth calling judgment,
and with the least knowledge of human nature,
will at once admit that in this case of Ireland
there is one injustice, one outrage, which has
been the moving spirit of every discontent.
The galling chain that has eaten deepest into
the flesh and rankled there, is that which has
bound an abhorrent people to an alien and
heretical Church. That a sensitive, deeply
religious, and Catholic nation should, for three
centuries, have been outraged by the insolent
presence and domineering rule of a sect of Pro-
testants never numbering more than 800,000,
and should still find statesmen labouring to
prevent them from casting this incubus into
the depths of the sea, suggests ideas worthy
the consideration of the philosopher. Mr.
Disraeli speaks of philosophers, but he is not
particularly gifted with the philosophy of plain
speaking. By confounding the words " estab-
lished " and " national," and then adroitly
changing from Irish to English ground, he
strove to throw dust into the eyes that watched
him. Having asked permission of the House
" to make an observation or two on the Irish
Church," he at once turned his thought and
argument to England, told us that we are an
exceedingly religious people, asserted that as
such " we must be always in favour of en-
dowments." The question was pre-eminently
an Irish one, it terminated thoroughly Anglo-
Saxon. But the fact of the new Premier
taking, or appearing to take, the least interest
in a religious question at all, is worth remem-
bering. We should have imagined that the
whole power of his intellect ranged the other
way. Great, however, has been our mistake.
He is for a Church, a national and an en-
dowed Church. In his opinion, it is the en-
dowment that gives " the corporate character
to the religious principles that influence men."
By the word Church he means " any body of
Ilreligious men who have an organization," for
such "steadies faith." At last we have the truth
spoken out, and by the highest man in the land
—the truth, at all events, as regards the
Church of his adoption. For what is the Pro-
testant Establishment? It is merely a secular
principle, wholly dependent upon the secular
arm—it is a convenient category in which
many differences are classed—a mere terri-
torial thing, bounded by the Atlantic, the
German Ocean, and the Baltic. Anywhere a
national Church, not the Church of the nation,
is a contradiction in terms—in Ireland a
national Church other than the Catholic
Church must always be a national insult.
The doctrines of that Church which sent St.
Patrick to the Irish shores have been always,
and still are, the cherished faith of the whole
people ; and all the State endowment and
political support of the most godless empire
in the world bestowed elsewhere will never
change this fact. Moreover, any such endo sv
meat and support is a mere wicked use of
power upholding an impious usurpation. The
hon. member for Birmingham, speaking of the
.. grievances of Ireland, said—" My remedy is
prepared and prompt. Disendow the Church,
and the whole thing is settled." We almost
agree with his conclusion, and we do agree
wholly with his proposition. It points in the
straightest direction—it aims primarily at the
destruction of that evil which is the crowning
misery of the sister kingdom ; and, if carried
into effect, would fill men's breasts with the
brightest hopes that other and lesser grievances
would by degrees also disappear. Mr. Disraeli
must not be allowed to run away with the idea
(if, indeed, he ever entertained such) that he
has defined, in any allowable sense, what is
meant by the word Church. To say that it
is a society to spread or to protect Christianity,
implies that the latter is not the Church. To
assert that " all bodies of religious men that
have an organization," or who wish to be con-
sidered as Christian, form separately part of,
or taken toAher make --up the Church of
, Christ, is to admit that disunion and schism

and individual choice can liave no effect upon
unity. We define the Church to be Chris-
tianity organized, with certain notes and attri-
butes always the same and always permanent ;
and that any body of men external to this com-
plete changeless organization is outside the
Church of Christ, and is no part of it. We feel
quite sure that Mr. Disraeli would s+nile at this
old-fashioned definition of truth ; but, as a
statesman, he is bound to remember that the
Irish people for whom he would legislate hold
to this very definition most sacredly. They
do not admit the possibility of the co-exist-
ence as one Church of absolutely separated
Churches. They regard the " principle of par-
ticular national Churches in the modern sense
of the territorialists as a heresy that would dis-
solve unity, destroy Catholicity, restore Jewish
exclusiveness, or rather paganism." Had he
realized something of this view; Mr. Disraeli
would be able to understand a little what that
indignation is which the Catholic millions of
Ireland feel at the forced presence in the midst
of them of such an institution as the Church
Establishment. With his present ideas all
the eloquence of the Premier will be but empty
words. We would address to him the language
of old Shylock :
Till thou eanst rail the seal from off my bond
Thou but offend'st thy lungs to speak so loud.

-----Ve stand here for law.
Answer—Shall we have it ?

THE PRESIDENTS DEFENCE.

(Continued from a late number.)

In a matter of such grave consequence I was not
disposed to rest on my own opinions, though forti-
fied by my constitutional advisers. I have therefore
sought to bring the question at as early a day as pos-
sible before the Supreme Court of the United States
for final and authoritative decision. In respect to so
much of the resolution as relates to the designation
of an officer to act as Secretary of War, ad interim,
I have only to say that I have exercised this
power under the provisions of the first sec-
tion of the Act of February 3, 1795, which, so
far as they are applicable to the vacancy caused
by removals, I understand to be still in force. The
legislation upon the subject of ad interim appoint-
ments in the Executive d,partments, stands, as to
the War Office; as follows : The section of the Act
of August 7, 1789, made a provision for a vacancy
in the very case of a removal of the head of the
War Department, and upon such a vacancy gives
the charge and custody of the records, books, and
papers to the Chief Clerk. Next, by the Act of
May 8, 1792, section eighth, it is provided that in
case of a vacancy occasioned by death, absence
from the seat of government, or of sickness, of the
head of the Wa.r Department, the President may
authorise a person to perform the duties of the
office until a successor is appointed, or the disability
is removed. The Act, it will be observed, does not
provide for a case of vacancy caused by removal.
Then, by the first section of the. Act of February
3, 1795, it is provided that in case of any vacancy,
the President may appoint a person to perform the
duties while the vacancy exists. These Acts are
followed by that of February 20, 1863, by the first
section of which provision is again made for a va-
cancy caused by death, resignation, absence from
the seat of Government or sickness of the head of
any Executive department; and upon the occurrence
of such a vacancy power is given to the President
to authorize the head of any other Executive depart-
ment, or other officer iu either of said departments,
whose appointment is vested in the President at his
discretion, to perform the duties of the said respec-
tive offices, until a successor be appointed, or until
such absence by inability or sickness shall cease;
provided that no one vacancy shall be supplied in the
manner aforesaid for a longer term than six mouths.
This law, with some modifications, re-enacts the Act
of 1792, and provides, as did that Act, for the sort
of vacancies to be filled, but like the Act of 1792, it
makes no provision for a vacancy occasioned by re-
moval. It has reference altogether to vacancies
arising from other causes, according to my construc-
tion of the Act of 1863. While it impliedly repeals
the Act of 1792, regulating vacancies therein de-
scribed, it has no bearing whatever upon so much
of the Act of 1795 as applies to a vacancy caused
by removal. Thy Act of 1795, therefore, furnishes
the rule for a vacancy, occasioned by removal. One
of the vacancies is expressly referred to in the Act
of August 7, 1789, creating a department of war.
Certainly there is no express repeal, by the Act of
1863, of the Act of 1795. The repeal, if there is
any, is by implication, and can only be admitted, so
far as there is a clear inconsistency between the two
Acts. The Act of 1795 is inconsistent with that of
1863 as to a vacancy occasioned by death, resigna-
tion, absence, or sickness, but not at all inconsistent
as to vacancy caused by removal. It is assuredly
proper that the President should have the same
power to fill temporarily a vacancy occasioned by
removal, as he has to supply a place made vacant
by death, or the expiration of a term. If, for in-
stance, the incumbent of an office should be found
wholly unfit to exercise the functions, and the pub.
lie service should require his immediate expul-
sion, a remedy should exist, and be at once
applied, and time allowed to the President to
select and appoint a successor, as is permitted
him, in case a vacancy is caused by death,
or the termination of an official term. The neces-
sity, therefore, for an ad interim appointment is just
as great, and indeed may be greater, in cases of
removal, than in any others. Before it be held,
therefore, that the power given by the Act of 1795,
in cases of removal, is abrogated by succeeding
legislation,an express repeal ought to appear, as so
wholesome a power should certainly not be taken
away by loose implications. It may be, however,
that in this, as in other cases of implied repeal,
doubts may arise. It is confessedly one of the
subtle and debatable questions which arise in the
construction of statutes. If, upon such a question,
I have fallen into an erroneous construction, I sub-
mit whether it should be characterized as a violation
of official duty and of law. I have deemed it proper
in vindication of the course which I have considered
it my duty to take to place before the Senate the
reasons upon which I have based my action. Al-
though I have been advised by every member of
my Cabinet that the whole Tenure-of-Office Act is
unconstitutional, and therefore void ; and although
I have expressly concurred in that opinion in the
veto message which I had the honour to submit to
Congress, when I returned the Bill for reconsidera-
tion, I have refrained from making a removal of any
officer contrary to the provisions of the law,
and have only exercised that power in the case
of Mr. Stanton, which, in my judgment, did
not come within its provisions. I have en-
deavoured to proceed with the greatest circum-
spection, and have tried, only in an extreme
and exceptional case, carefully to follow the course
which I have marked out for myself as a general
rule, faithfully to execute all laws, though passed
over my objections, on the score of constitutionality.
In the present instance I have appealed, or sought
to appeal, to that final arbiter fixed by tke Consti-
tution for the determination of all such questions.
To this course I have been impelled by the solemn
obligations which rest upon me to sustain inviolate
the powers of the high office committed to my hands.
Whatever be the consequences; merely personal to
myself, I could not allow them to prevail against a
public duty, so clear to my own mind, and so im-
perative.. If what was possible had been certain,
and I had been fully advised, when I removed sir.
Stanton, that in thus defending the trust committed
to my hands, my own removal was sure to follow, I
could not have hesitated. Actuated by public con-
siderations of the highest character, I earnestly pro-
test against the resolution of the Senate, which
charges me, in what I have done, with a violation
of the Constitution and laws of the United States.
(Signed) ANDREW JOHNSON.

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