The New York herald., 1868-05-15
OPINION OF SENATOR WILLIAMS.

WASHINGTON, May a. 1868
Mr.. WILLIAMS, Of oregon, said in the secret ses-
sion -
Mr.. PREsIDENr-Deeply impressed with sense OF
my responsibility and duty in the case now before
the Senate shall vote for the conviction OF the Pres
ident upon the first three aticles Of impeachment,
upon the ground that the removal OF Secretary STAN
ton and the appointment Of Adutant General
Thomas charged in said articles were In violation
OF the constitution Of the United States. To decide
otherwise would be to say that the President has the
absoluts anu unlimited power at all times and under
all circumstances to remove from ana ap-
point to ONCE; and that so much OF
the constitution as provides that the Presi-
dent ''shall nominate and by and with the ad-
vice and consent Of the Senate appoint" is Of no
effect. Nothing would be necessary to annihilate all
participation by the Senate in appointments except
to call the appointee in Of removal ocer ad
tnterim-that s an office Ito hold until 1t suit the
purpose Of the President to send nomination to the
Senate to which 1t is willing to agree. Untring and
exhaustive researches on behalf OF the President do
not show and venture to assert that not one single
instance can be found In the history Of the govern
ment where head Of a department has been re-
was in session without the advice and con.
sent Of that body. Nothing is clearer to my
mind than that power OF the President over the
Senate Ia one thing and his power during the recess
of the Senate is another and different thing. When
the constitution says that the President may nn up
ali vacancies that may happen during recess Of the
Senate, 1t certainly confers upon him power which
he does not possess and cannot exercise while the
made during the recess of the Senate, 1t has been
argued that vacancies made In this way have hap
pened. therefore they could be filled temporarily by
one inference upon another, to include the session
as as well as s., the recess, and 50 to abrogats
the Executive Executive with w absolute and Id despotc aIc
power. am very certain that the practice
OF removals and IL
the recess OF the Senate, and in my Judgment 1t Is
not only total departure from the precedent, but
sections which applies exclusively to recess apply
also and equally to session OF the Senate Congress,
Il It should try could not delegate any such power
to the President. Congress may vest the appoint
ment Of certain inferior officers In the President
alone IN the courts Of law in the heads Of depart
ments; but Congress can no more vest the power
In the President OF removing and appoint
ing head OF department without the advice Of the
Senate than 1t can vest the in the President to
make Treaty without the concurrence OF the Senate
Mr. Williams held that the practice Of the govern
ment was not inconsistent with this vew and
al interim appointments had been made they
were not the result OF removals from Office
After arguing at length to prove that the President
violated the law he referred to the claim that the
President had the right to test the constitutionay OF
a law, and while on this subject said d:-Whatever
may be the correct of this question 1t must be
admitted that If the President violates penal law OF
Congress he does so at his peril. When impeached
for such an act if the Senate upon the trial hold the
law TO be unconstitutional and void, he must,
OF course, be acquitted But II the Senate
hold the law to be constitutional and valid
it, must necessarily convict. Any public
officer or private citizen may test the validity of a
criminal statute by its violatOn but In so doing he
undertakes to suffer its penalties IL upon It's trial. 1t
is upheld and enforced by judicial authority. To
allow any person not acting judically, when ar
ragned for crime to plead in bar Of prosecution his
mistaken opinion Of the Justice or validity of the law
would he to deliver land VIZ
questions only as to this law before the Senate;
one is, Is It constitutiona2 and the other Is, Has
1t been violated by the Presidents Mr.. Webster said
In one OF his great speeches, that the regulation OF
the tenure of Office is exercise of egi lltive
not at all restrained or limited by anything contained
III the constitution, except as to judicial ofcers and
am very sure that the Senate, after having three
times decided by more than twO-thirds vote OF the
members present at each time that the Tenure OF
once act ID constitutional, Will now regard thai
any as Of s e Of Has % e
denies that the body Of the first section, which pro-
vides that every person appointed to office by and
with the advice and consent OF the Senate shall hold
until his successor Is In like appointed and
qualified, embraces the Secretary or War; but an at
tempt is made to constrge the Proviso to the section
lection Of that act. To maintain this con-
structon reliance Is simply placed upon some
remarks Of Senator Sherman In connection
with the bill. presume on this account, 1t may be
proper for to say that ] introduced the original
bill and had the honor be chairman OF the COM
mittee of conference by whom this proviso was re-
ported. When the bill passed the Senats the heads
OF departments were expressly excepted, but the
House Of Representatives amended II by striking out
that exception and the conference committee agreed
to the House amendment, with modification as TO
the protection of the law There was no suggestion
or intfmatiOn In the committee that the act did not
apply to Mr.. Johnson's Cabinet; and the only
purpose OF the prOvso was to put a limitation
upon the holding OF Cabinet Offices and that
In Its fair construction great stress has been
put upon the words 'except as herein otherwise
bnt 10 fact
Is that these words in the bill before the provso
was attached, and refer to the fourth section and
instead Of being an exception the proviso
is mere qualification OF the general words OF the
section. do not see how It is possible To conclude
that Mr. Stanton Is not protected by the body OF the
section or provisO. Mr.. Williams argued at length
that Mr.. Stanton was entitled to the protection Of
the act, and recapuated all the events that trans
pired from the time OF his first suspension and the
od interim appointment Of General Grant to the
attempt To remove him on the 2lst OF February.
Mr.. Williams insisted that the Senate by refusing
TO agree with his suspension on the first occasion
and by its vote after his attempted removal had itself
decided that Mr.. stanton came within the meaning
OF the law. The President himself, by his Official
acts, had recognized this position. Continuing Mr..
Williams said-The President cannot hold and treat
Mr. Stanton as his Secretary OF War for two or three
years and then, when questioned for illegal act
upon or through such Secretary, deny his Official
character and relations II he was the Presidents
Secretary Of War for executive purposes he such
Secretary OF War for the purposes OF Congress
Much discussion has taken place In this case to
the intent of the President There is nothing Of this
Department from f. NJ Stanton TO some other
person OF his choice without the consent and
in defiance OF the viii Of the Senate This Is OBJ
vious and undeniable, and every Senator must be-
lieve It. The pretext that all his proceedings for the
removal OF Mr.. Stanton and the appointment Of |
Mr.. Thomas was to get law suit Is o shallow and 1
subterfuge. One question made Is, the /
President has not removed Mr.. Stanton. Mr.. STAN
ton was either removed or he was not II ne was
not removed, then the appointment Of Thomas was |
clear violation of the sixth section Of the Tenure OF
ONCE act, for 1t an appointment to fl vacancy
Assuming that the Tenure OF ONCE act Is valid and
applicable to Mr. Stanton, then the President could
not remove him. Suppose Mr.. Stanton, to avoid |
connict under the orders OF the 2st OF February had
given possession OF the War ONCE TO Mr.. Thomas. He
would still have been Secretary OF War; because those
orders were illegal and void What the Tenure Of |
Ofce law intended to prohibit ana punish was action /
Df the President TO removals and appointments /
without consent OF the Senate, though, OF course
such action being In contraventon OF the law, would
have force. great effort has been made TO show
hat the removal OF Mr.. Stanton and the appoint |
nent of Mr.. Thomas were Insignificant acts. They |
night possibly he 80 regarded II there were harmony
md peace In this country. Congress has passed /
avs Tor the reconstruction Of the States lately IN
thaaof fal with in hal i,,rts