Year: 1868

the charges made against the President is
worthy of perusal and is worth at least as
much to the prosecution as to the defense.


The first point argued by Mr. Stanbery is
that the Tenure of Office act does not forbid
attempts to remove an officer, but only his ac-
tual REMOVAL that Mr. Stanton never was re-
moved in fact, having steadily held the office
in spite of all efforts to remove him; that to
claim that he was removed IN ldW is to concede
that the order of removal was valid i'll law,
and therefore wholly innocent. That if he was
neither removed in fact nor in law the Presi-
dents acts amount to mere attempt to COM
nit crime and not to the crime itself


This ingenious argument reminds one of the
casuistry by which the ancient philosophers
undertook to persuade Zeno the Stole that
there could be no motion. A body, said they,
must always move either in the place where it
is, or in the place where it is not. 1t cannot
move in the place where it is, and until it
moves it cannot get into the place where 1t is
not Hence motion is impossible. The answer
of ZenO was to get up and walk The answer
of the Senate should he a verdict of guilty.
The sOphstry lies in the assumption that If
the Presidents order worked a removal in law,
it must have been valid in law. e., that an
order made in violation of law can have no
legal consequence without being itself legal.
1t has legal consequence and effect by virtue
of its being illegal, viz: legal effect to render
the President impeachable for disobeying the
act. Had the order itself been legal, its legal
effect would have been TO remove Stanton.
The order being illegal, its legal effect
is to subject the President to removal The
act of removal was complete in law as a crime
when the order of removal was issued The
President had done all it was in his power to
do. The resistance to his crime by another
party cannot divest him of his guilt More
over, the attempt to commit crime Is under
all circumstances either q crime or \ msdc-
meanor. 1t is never all innocent act. The
President, being equally impeaclable for crimes
as for attempts to commit crime, the distinc
ton, if any exists, has no bearing on the result.


Mr.. Stanbery attempts to show that the Pres-
dents acts, if crimes at all, are only technical.
not substantial are violations of legal forms,
not of eternal justice. There is as much "eter
:" nal justice in the legal forms which prevent
President from becoming "a monarch, in
anything the human mind is capable of COM


pretending The counsel further attempts to
show that there was n design on the part of
the trainers of the Tenuro-of-Ofce act,
the first clause of which makes
all officers removable only with the consent Of
the Senate, to make certain exceptions TO this
rule in the second clause. He does not succeed
in showing that this design was not fulfilled
For under the first clause an officer could
never be removed without consent of the
Senate. Under the second clause, the officers
therein named could be removed by Il Presi-
dent alone after the first month of the term
succeeding that of the President by whom they
were appointed. He assumes, without author


ity, in the language of the Tenure Of Office
act, that Congress intended TO give the Presi-
dent the right to remove those Secretaries
whom President Lincoln had appointed, and


to prevent him from removing those whom
Andrew Johnson had appointed. If Congress
had any such intent its members were singu-
larly ignorant of it. For it was universally
known at the passage of the act that the only


members of Johnsons Cabinet whom Congress
had any confidence in, or desire to retain, were
those whom President Lincoln had appointed.


The Senate cannot too severely rebuke and
condemn the rebeliious doctrine constantly re-
iterated by the Presidents counsel that the
Presidents right to cOnstrue the Constitution
for himself means that he has the right after
a law is passed which he deems uncOnstitu-
tional to disobey, defy, or resist it. The Presi-
dents right to cOnstrue the Constitution for
himself as put forth by Jackson, Madison, and
other statesmen, contained no such seditious
heresy. For the right was always stated to be
as independent of the judicial as it was of
the legislative branch Of the Government.
If, therefore, it survived after the Legislature
had ovenued it, it would survive equally after
the Supreme Court had Ovenuled it. But this
would DC to place the President above the
control of either Courts or Congress. The
true and only sense in which Madison, jack
son. and others claimed that each department
of the Government had power to cOnstrue the
Constitution for itself, had limits. 1t justified
the President in vetoing BILL but it did not
authorize him to nullify decision of the Su-
preme Court, nor law of Congress-


1t is easy to sec that any other construction
of the Presidents powers would make him an
absolute despot. But even giving the doctrine |
its broadest Interpretation, it contains no relief
for the President. For his alleged right to con-
strue the Constitution for himself so as to |
Justify him in disObeying the law, must, ac-
cording to the doctrine itself, i'll way inter- |
fere with the absolute right of Congress so to |
construe the Constitution for themselves, as TO
justify them in impeaching and removing him
for his dsobedence Jefferson vindicates the
ultimate supremacy of Congress in the sell
tence quoted 10y Mr.. Stanbery, and in gen
"eral that branch which is to act ultimately |
" and without appeal on any law, is the right
" full expositor of the validity of the law un-
" controlled by the opinions Of the other CO
" ordinate autlorities.p


Mr.. Stanbery argues at great length that n
ln,r ,rhich vinlafns thn C,nnrtitntinn IL rnil |