The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-25


doctrine eoap,aded for by the learned Meragers be
the true doctrine, that the Civil Tenuge hi IL cons.i-
tutionai and that the President has no power TO
move, except with the advice and consent Of the
senatey ihen, Senators. | asS You, how is II that
the Presidest eau he found guilty OF removing
Mr. stanton from Office, takinH the premises ~ The
honorable gentlemen TO he correct, when there was
no removal at ally That there was an attempt
to remove there is no sort of doubt;
within the Civn Tenarc bill unless yon nave q case
o. removal II Is uol case OF removal. But if their
construction be true it is II case of an attenpt 10
remove person RON office, so that IL is impossible
Tor the honorable Managers TO escape The dilemma
when the nature OF their cases places them in. On
the hrst count desire TO maintain briefly three pro-
p0sitons:-Fist, that the Tenure of Office bin h uu
constitutional and void; second that II the Civil
Tenure Of Once bill is not Unconstitutional, 1t does
not embrace such case ~ the removal o Mr.. stan
ton; ana third, II both these propositions are erro,
neous that the President acted with a iaudabie and
honest motive and rs, therefore, not guilty OF any
crime or msdemeanor. ON the first proposition, as 10
the unconstitutiOnality OF the Civil Tenure OF ONCE
bill, as IL has not been done already In behalf Of
the President, l avail myself OF the occasion 10
debate Of i7sa. although NIX Know thew are familiar,
probably 10 every Senator ! address; yet regard
these things as material and important To our line OF
defence, and at the risk OF wearylng the patience OF
the Senate, must ask the privilege OF presenting
briefly the views entertain on that subject In the
1859, ON the bill for establishing an Executive
Department OF foreign affairs, Mr.. White moved
t 10 strike Out the words ITO be removable
States" He advocated this because the Senate
had the Joint power OF appointment. His views were
sustained by Messrs. Smith, OF South Carolina; Hun
tinytOn, Sherman, Jackson, Gerry and Livermorc,
and were opposed by Messrs. Benson, Ames and
pp 47sto sosl Mr. Madison said in that debate il Was
evidently the intention OF the constitution that the
First Magistrate should be responsible for the execu-
tive departments, and that SO Tar therefore we do
not make the officers who to aid him In the duties
OF that responsible to him he Is not respon
sble to his country. Basng his argument mainly
on the constitutional provision that the executive
power shall be vested in the President, Mr.. Sedgwck
said III eXpedlency Is at all to be considered, gen.
tlemen will perceive that this man is much an in.
srument In the hands Of the President the pen is
the Instrument OF the Secretary in corresponding
egn Affairs is the mere instrument Of the President
one would suppose, on the principle Of eXpedency,
say it would be absurd in the highest degree
trary to the will Of the President, who IS respon-
proprlety and for the general interest OF the
nation. Upon that debate merely suggest that IL
states plainly the affair as it exists between the
President and Mr. Stanton, and, as this debate Oc.
Cured soon after the adoption of the constitutions
and as several gentlemen who had participated in
the formation OF the constitution, among them Mr..
Madison, one Of the ablest writer's who ever wrote
on this subject, not even excepting Alexander Hail-
ton also took part in the debate, must give 1t the
highest consideration. And il there be anything in
the doctrine Of the law, which Is applied to every
other case that when decision of legal question is
made that decision should stand, and If there be
anything in the doctrine OF stare deciss maintain
Senator'S an opinion which. so far as know, has
neither been contrOverted ut any time except during
the time OF Andrew Jackson, and an opinion which
has stood for nearly eighty years. Is not authority
then can conceive of nothing that is sufficient to be
taken as precedent. II, according to the Engligh
law, man protected In his real estate after sixty
years. possession, and IT, as in my own State, seven
years adverse possession gives good title, why may
we not argue, and argue with propriey, before the
American Senate that when this question settled
eighty years ago, and when the decision has
never been controverted until the present time en-
cept on the occasion to which have referred, |
do maintain, Senators. US earnestly as am capable
OF maintaining any proposition, that that decision is
an authoritative conclusion, and Is principle bind
ing and obligatory this Senate and that you must
follow it, on The same principle that Judges are i'm
the habit OF following judicial determinations in
reference 10 the rights Of property, which have been
long iesced ill., and have become principles 0fIaw
Mr Nelson proceeded 10 argue this point at length
and referring To the erect Of the Supreme Court
DECISIONS sad:-Uness have misread The constitu-
ton or the United States there Is provision there
declaring that the decision Of the Supreme Court of
the United States shall be final and conclusive and
the constitution assumed that there was certain
state or things IN existence ut the time they made it,
they assumed that the history Of English jurispru-
dence would be known 10 The American Senators:
In other words, they assumed that there was and
would continue TO be certain amount OF knowledge
and information IN the world. IL was therefore
necessary for them 10 put In the constitution Thar the
decision made by The supreme Court Of the United
States would he binding. They knew That the prac-
tice had been for years 10 regard decision by
judicial tribunal in case carefully considered.
and especially where II had stood for any length OF
not safe, in the administration OF The law, to depart
Now, the argument thai make is thai while the
stitution of the United States does mol specify that
the decisions OF the judges shall have all the binding
force OF authority in the land any more than IL does
In reference to the opinions of the Attorney General
yet any fair construction any fair legal intent
ment, argue that under the act of 1.S9 the opinions
Of tue Attorney General may he regarded 10y the
President and by all others who have do with thai
opinion, as IL valid authority and should be SUI
dclent to justify his action in any given case
that may be covered by that opinion. The act OF Sep
tember "a, 17S9 provides that there shall Ice appoint
ed an Attorney General OF the United States whose
duty it shall be to prosecute and conduct an eases In
the supreme Court in which the United states are
and to give his opinion Of questions Of
law when required by the President Of the United
departments touching matters connected with their
departments Take the two provisions to-
President may call these officers for advice ana IN
formation, and the provision In the act OF l79s that he
may call on the Attorney General for advice ami
opinions. Then | maintain, Senator'S that when |
opinions have been given in cases. as appears |
with the one under consideration, these opinions are
In the nature OF judicial opinions and are perfect
shield and protection 10 the President II ne can
bring his acts in those particular cases within the
spirit and meaning of them. Mr.. Nelson referred 10
the opinions OF Attorney General Writ Attorney Gen
era Berry, Attorney General Legare Attorney Gene-
al Nelson, Attorney General Critenden and Attorney
affinity with the question Of the power Of removal
and appointments In reference 30 Mr.. speed he said
that that gentleman stood very high ia quarters
Of the United states, and his opinion entitled 10
much weight in those quarters.
Senator CosKLISG asked whether the opinion of |
Mr. speed was published In the volumes OF opinion.
NJ the Attorney Generalss
Mr.. NELSON said u was not, but that he had GER
ifed copy of H. He proceeded TO read an extract |
rom the OPINION AS follows.
It his duty meaning the presdent) TO do an that
he to do when occasion requires the
hoty. To do less such occasion woald he ,yoa
sodicate his high Office. The constitution IL the supreme
ava Inv superior and paramount Other. Vi any /
aw be repugnant to the constitution, IL IL void.
This, said Mr.. Nelson bears only the Civil Tenure |
bill, but u Is square up To all the questions which
gentlemen on the other side have argued IN connec-
ion with IL. Here. said he, is advice given 10 the |
President by man on whose Judgment he had 4
light to rely for he IL known to you thar the Pre.i-
lent Of the United States is not himself lawyer: he
never studied the legal profession, and claim
DR. prelenti0n 60 know anything about u. In the |
discharge OF his duties he has right 10 consult the
eRl advisers who are given to guide and
iirect him on questions of law by the coDstitr-
ion Of the country, and by the act OF 1859
md when ne finds an opinion on file In his Office
InI nj