The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-05-02

gravest consideration, which might be adduced to
the same effect, and which ! propose to introduce
sider and that point is that IL the President had
construed this Tenure of once act as to be satisfied
that Mr.. stanton came within its provisions but
was also OF opinion that the law In that respect was
contrary TO the constitution he is not to be held re-
sponsible If therein he committed an The
Congress which, in the construction given to
Mr. stanton from the War Department. The
President IN the exercise OF his executive functions
and OF his duty to see that the laws were faithfully
executed came to the conclusion that in the execu
ton Of so much Of this executive duty as had rela-
ton to the administration Of the War Department 1t
was expedient TO place 1t In the hands OF another
person. HIS relations with Mr. Stanton were such
that ne 1elt unwilling any longer to be responsible
for his acts In the administration Of that department
or to trust him as one Of his confidential advisers
moval, denied to him by this law, was given to him
by inc constitution or, to state 1t In other er
yssCacs whether this law tos oonstuan
Now, 1t appears that his opinion upon this question
had been made up deliberately. When this same law
for his approval his opinion was formed that it was
IN violation or the constitution. He refused to ap-
prove It, and returned it to Congress with message
In which this opinion was distinctly announced. IL
passed, Notwithstanding, by constitutional majority
In both houses No one doubts that then, at least,
no one has ever vet asserted that an error In
an opinion SO formed involved him In any liability.
The exercise or that veto power exhausted all his
means of resistance to what he deemed unconsti-
tutonal act in his legislative capacity and 80 far
the law provided q rule Of action for others than
himself no other means Of resistance were left to
him. But this law was directly aimed at him and
the exercise OF the executive power vested In him by
the constitution. When, therefore, he came second
time to consider It, 1t was in the discharge OF an ex-
ecutive duty. Had he then discretion Of any
sortH Was he bound to act in merely ministerial
in his legislative '' capacity >t to prevent the
passage Of the law, was he thereby de-
prived Of his discretion in his executive
capacity, wnen he was called upon to act under 1t
1t has been said that law passed Presidents
veto by majority OF twothirds, has greater sane
ton than law passed in the ordinary way by q
mere majority. l know that there are those who
whilst they admit that as to law passed In the ord
nary mode by the concurrent acts OF the two
Houses ana the President, 1t may be questioned on
the score Of yet maintain that
law not passed by such concurrence but by the
currence Of the Executive or against his will,
is something superior to ordinary legsla-
ton, and takes the character OF o fnndamen.
tai or organic enactment But this Is q
modern heresy unsustained by the slightest reason
authority 1t is at least but legislative act. 1t
stands upon equal footing with other legislative
acts. 1t cannot be put upon higher ground or lower
ground. No distinction is allowable between the
one and the other But II it were it certainly would
seem more reasonable that such law passed by one
coordinate department would stand on lower ground
than q law passed with full concurrence Of
is the President invested with a discretion
in his executive capacityf In the exercise Of that
discretion may he compare the law with the consti-
tuition, and If In his opinion the law vests him with
power not granted bv the constitution or deprives
him Of power which the constitution does not grant,
may he refuse to execute the power given pro-
coed to exercise the power SO taken awayp We have
already cited late decision OF the Supreme Court
directly in point that presented the direct question:
whether as to the reconstruction acts passed like this
Tenure OF Civil ONCE act by vote OF twothirds in
each House, the President had, notwithstanding,
The decision maintains that he had. proceed to
show that this Is no modern doctrine. The authori-
ties which shall cite go beyond the necessities OF
this case. Some OF them go to the length of assert
ing that this executive discretion survives even after
the passage OF the law by the legislative department.
1t has been construed by the judicial department,
to act for himself in opposition to the express will Of
both the other departments. will first cite some
opinions upon this extreme position. Mr.. Stanbery
then quoted from Presidents Jefferson, Jackson,
Van Buren,, from the Federalists and from large
preme Caurt of the United States sustain his posi-
ton. Continuing he said:-Quotations from opln-
ions Of the Supreme Court maintaining that the
but strictydiscretonary, might be multiplied inde
nitey And indeed 1t is easy to show from repeated
decisions OF the same court that the heads of depart
ments, except where the performance OF speci
in no sense ministerial officers, but tina,
protected from responsibility for error In the exercise
Of the discretion Thus:-Decatur vs.. Paulding, Il
Mason Howard d. in Which latter case the cour
say =" The duty required Of the Secretary, by tn,
resolution was to be performed by him as the head
ef one OF the executive departments OF the govern
ment In the ordinary discharge Of his official duties
that In general, such duties, whether imposed by
act of Congress or by resolution, are not merely
executive department of the government
In the administration OF the various and important
Of his office. Ii continually required to ex
ercise Judgment and discretion; and that the court
could not, by mandamus, act directly upon the off,
ton in matters committed to his in the ordinary
discharge of his official duties"
will now ask your attention, Senators, to the
remaining articles and first, the four conspiracy
articles. These allcge that the President un.
lawfully conspired with Lorenzo Thomas and
others to the House of Representatives unknown,
prevent Edwin NJ. Stanton, Secretary OF War, from
holding the Office OF Secretary for the Department OF
War; contrary to the Conspiracy act Of July 81 1861
and in violation Of the constitution OF the United
States; second, to prevent and hinder the execution
e Re ae ts @s Slv
fully attempt to prevent Edwin NJ. Stanton from
holding the said once; third by force to SEIZE take
and possess the property Of the United States In
the Department OF War In the custody and charge
OF Edwin N. Stanton Secretary thereof contrary TO
the act OF JTy 81 ana 81 te
take and possess the property of the United States In
the Department Of War In the custody Of Edwin NJ.
Stanton the Secretary thereof with intent to viola te
the '.act regulating the tenure Of certain civil off,
ces.r II will be seen that these four conspiracy
counts all relate to the same subject matterthe Wal
ONCE the Secretary Of the War once and the public
property therein situated-and this Is all that
Il necessary to be said about these arti
cles, for not scntilla OF proof has been
adduced in their support. The case attempted
TO be made out under these conspiracy articles by
the Msnagers was In the first place, by the produc
ton of orders issued on the 21st Of February But
these OF themselves did not amount to evidence o
conspiracy, as they carried the idea Of no unlawful
agreement but simply stood upon the footing Of an
order given by the President to subordinate, the
Managers, In order to make some show Of q case
offered to introduce the declarations of Genera
Thomas made on the night Of the 21st and on the
22d OF February and other days, intending to show
purpose on his part To obtain possession
OF the department and the property OF the depart
ment by inlmidation aud force. Objection wal
made at the time TO the Introduction Of these decla
rations without laying foundation upon which the
President could be made liable by such declaration
Impressed with this objection, the Manager who
opened the prosecution after some consideration,
length answered inquiry OF Senator, that he ex
peced 10 follow up the proof OF the declarations by
proof connecting the President with them, Upon tha
assurance he allowed to give the declaration
| OF General Thomas In evidence. But that IL the
| last we have heard Of any supporting proof so
promised. Not scintilla Of proof has been obtained
r T~<xx. 1lxn~< wNn~