Year: 1868

him that he had empowered General
InOmas to act as Secretary dd interim. The
order to General Thomas empowered him
to enter on the duties of the Office and re-


celve from Mr.. Stanton the public proper
ty IN ms charge. There is no evidence
that the President contemplated the use of
force, threats or intimidation, still less that


he authorized General Thomas to use any.
do not regard the declarations of General
Thomas, as explained by himself, as hav-


ing any tendency even to fix on the Presi-
dent any purpose beyond what the orders
on their face import. Believing as l do
that the orders of the President for the


removal of Mr.. Stanton and the des-


ignation of General Thomas to act ad in


terim were legal orders, it is manifestly


impossible for me to attach to them any


idea of criminal conspiracy. If those or
ders had not been in my judgment lawful


/ should not have come to the conclusion


upon the evidence that any actual intent to
do an unlawful act was proved. The ei2 hth


article does not require any particular no.
tice after what have said of the first, Sec


cond and third articles, because the only


additional matter contained in it is the allie


CATION of an intent to unlawfully control
the appropriations made by Congress for
the military service by unlawfully remoy-


ing Mr.. Stanton from the Office of Secretary
for the Department OF War. In my opinion
no evidence whatever tending to prove this
intent has been given. The Managers Of
fered some evidence which they supposed
might have some tendency to prove this al
legation, but it appeared to the Senate that
the supposed means could not under any
circumstances be adequate to the supposed
end, and the evidence was rejected. Hold
ing that the order tor the removal of Mr..
Stanton was not an infraction of the law


of course this article is, in my opinion,
wholly unsupported. / find no evidence
sufficient to support the ninth article.
The President, as Commander lin Chief
of the army, had right TO be informed of
any arrangements OF the military service
concerning which he thought proper to in
quire. His attention was called by one of
his secretaries to some unusual orders. He
sent to General Emory to make inquiry
concerning them. In the course of the
conversation General Emory himself in
troduced the subject, which is the gist of
the ninth article, and / find in what the
President said to him nothing which he
might not naturally say in response to Gen
eral Emory's inquiries and remarks, with
out the criminal intent charged in this
ninth article. l come now to the question
of intent, admitting that the President had
no power under the law to remove Mr..
Stanton and appoint General Thomas Sec
retarY for the Department OF War dd in
terinl. Did he issue these orders with a
manifest intent to violate the laws and the
Constitution of the United States, as charg-
ed in the article; or did he issue them, as
he says he did, with view to have the
Constitutionality of the tenure of office act
judicially decided? 1t Is apparent to my
mind that the President thoroughly be-
lieved the tenure of office act to be uncon-
stitutional and void. He was so advised
by every member of his Cabinet when the
bill was presented to him for his approval
in February, 1867. The Managers on the
part of the House of Representatives
have put before us, and made legal
evidence in this case, the message of the
President to the Senate dated December u
1867. In that message the President de-
clared '.that the Tenure of Office law did
not pass without notice. Like other acts il
was sent to the President for approval. As
is my custom l submitted its consideration
to my Cabinet for their advice upon the
question whether l should approve it OIL
not. II was grave question of constitu


tional law, in which l would of course rely
most upon the opinion of the Attorney
General and of Mr.. Stanton, who had once
been Attorney General. Every member o.


my Cabinet advised me that the law was
Unconstitutional. All spoke without doubt
or reservation, but Mr.. Stanton's condem.
nation of the law was the most elaborate
and emphatic. He referred to the constitu.
tional provisions, the debate in Congress
especially, to the speech of Mr.. Buchanan
when a Senator, to the decisions of the Su.
preme Court, and to the usage from the be-


ginning of the government through every
successive administration, all concurrine
to establish the right OF removal a.
vested by the Constitution in the Pres
ident. To all these he added the
weight OF his own deliberate Judgment
and advised me that it was my duty to de-
fend the power of the President from usur.
patton and to veto the law" The counse
| for the respondent not only offered to prov,
q Statpmant n
| by the members of the Cabinet, but they
| rendered in addition thereto the proof tina
| the duty of preparing message settin!
| forth the objections to the cOnstitutionality
! of the bill vas devolved on Mr.. Seward ant
| Mr.. Stanton. They also offered to prov


that the meetings of the Cabinet at whicl
| Mr.. Stanton was present, held while tn


tenure OF Office bill was before the Presi
| dent for approval, the advice of the Cabi
net in regard to the same was asked by tn


President and given by the Cabinet, an
| thereupOn the question whether Mr.. Stan


ton and other Secretaries who had receive


their appointments from Mr.. Lincoln wer


within the restrictions upon the President
| power of removal from Office created b.


said act was considered, and the opinio


expressed that the Secretaries appointe


by Mr.. Lincoln were within such restric


tions; and that at the Cabinet meeting be


tween the passage of the tenure of CIV


Office bill and the order of the 2lst of Feb
i ruary. 1868, for the removal OF Mr.. Stan


ton, upon occasions when the conditio
l of the public service, as affected by th
operation of that bill, came up for the con
sideration and advice of the Cabinet it ws
considered hy the President and Cabint
that proper regard to the public serviC
made it desirable that upon some prope


case judicial determination on the cor


sttutionality of the law should be oh


tained. This evidence was, in my opinion


clearly admissible, as cumulative of Or


explain or disprove the message of th
President, which narrates substantially tn


same facts and which the Managers hav


introduced and make a part of their cast
but it was rejected as incompetent test


timony by vote of the Senate. l believ
that decision was erroneous, and lnasmuc


as there is no tribunal to revise the errol
OF this, and it is impossible to order


new trial of this case, l deem it proper


regard these offers to prove as having bee


proved. We have, in addition to this test
mony as to the extent of the President, th
evidence of General Sherman. The Presi
I dent desired to appoint General Sherma
Secretary dd interim for the Department {
i War, and rendered to him the office. Th


complications in which the Office was the


involved was talked over between then
General Sherman says that the subject


using force to eject Mr.. Stanton from th
4 office was only mentioned by the Presideu


to repel the idea. When General Sherma


asked him why the lawyers could ne


make up case and have the COZ


fiicting questions decided by tn


courts, his reply was, "That


was found impossible,or a case could not b


made up. But" said he, "if we can brin


the case to the courts it would not stan


half an hour" Here then, we have til


President, advised by all the members {


his Cabinet, including the Attorney Gen


eral, whose DUTY it is made by law to Civ


legal advice to him, including the Secrets


ry tor the Department of War, also an en-


inent lawyer and an Attorney General {
T the United States under former admins
tratlon, that the act of March q, 1867, wa