Year: 1868




and that the duty OF preparing message setting
forth the objections to the cOnsttuti0naity OF the
bill was devoved upon Mr.. Seward and Mr. stanton,
President and Cabinet up to the time OF sending in
the message by the President.


Manager WILSON rose to speak, when


Senator JOHNSON submitted the following question
TO the counsel Of the President in writing- DO the
counsel understand that the Managers deny
that the statement made by the President in
his message OF December l2, 1867 in evidence
as given by the Managers, at page As, No OF
the official report OF the trial, that the members Of
the cabinet gave the opinion last stated as to the
Tenure of ONCE act and evidence offered TO COR
roborate their statements or for what purpose is it
offeredT''


Senator HOWARD submitted the following question
to the Presidents counsel-"Do the counsel for the
accused not consider that the validity Of the Tenure
OF ONCE bill was purely question of law to be de-
termined In this trial by the Senate; and If so, do
they consider that the opinions Of Cabinet officers
touching that question are competent evidence by
which the Judgment Of the Senate ought to be in
fuencedS"


Senator EDMUNDs asked whether the argument on
the part Of the Managers might not be continued
while the counsel were considering the questonsY


The CHIEF JUSTICE replied in the affirmative.


Mr.. CURTIS said they would prefer that course.


Mdudger NlLsON rose anu sulu:-As tNis question
confronts one of the most important questions in
volved In this case wish to present the views OF
the Managers respecting 1t with such care and exact
ness as may be able to command The respondent
now offers to prove, doubtless as a foundation for
other Cabinet advice of more recent date, that he
was advised by the members Of his Cabinet that the
act Of Congress- upon which rest several Of the arti
cleS to which he had made answer, to wit: IAN act
regulating the tenure of ceraiu civil officers passed
q
therefore void That he was so advised he has alleged
In his answer. Whether he was so advised or not we
hold to be immaeral to this case and irrelevant to
the issue joined. The House OF Representatives were
be entrapped in the preparation of this repli
cation by any such cunning device, nor by the kim
dred one whereby the respondent aflirms that he
was not bound TO execute the act because he be-
lieved to be unconstitutional Inc replication says
very averment in the said several answers either
OF them, which denies or traverses the acts intens,
crimes misdeneanOrs charged against the said
Andrew Johnson In the said articles Of impeach-
ment, or either of them, and for replication to the
said answer do say that the said Andrew Johnson,
President OF the United States, is guilty of the high
crimes and misdemeanors mentioned in the said az
tcles, &c There is acceptance here of the issue
rendered by the respondent and in support OF which
we object. The advice which he may have formed
touching the constitutonality of the said act
be allowed to shield him from the consequences of
his criminal acts, nor can his mistaken view OF the
constitution relative to his right TO require the opn
ion OF the heads of the several executive departments
upon certain questions aid his efforts escape from
the just demands of violated law. In his answer to
the first articles he alleges-"Tlat this respon-
dent had in pursuance of the constitution
required the opinion Of each principal officer Of the
Executive departments upon this question of consti
tutiona executive power ana duty, and had been
advised by each OF them, incu1ing the said Stanton,
Secretary for the Department OF War; that under
the constitution OF the United States this power Of
removal was lodged by the constitution in the Pres
dent Of the United States, and that consequently it
could be lawfully exercised by him, and the Congress
could not deprive him thereof" The respondent
found no provision in the constitution authorizing
him TO pursue any such course. The constitution
says, "the President may require the opinion in writ
ing Of the principal In each OF the executive depart
their respective Offices" article 2, section ~ Not
of his office not OF the legislative department, nor
OF the judicial department. But when did he require
the opinions and receive the advice under cover Of
which he now seeks to escapey His answer informs
Us that this all transpred prior to his veto Of the
Upon these unwritten opinions and that advice he
based his veto Of said bill and fashionei the charac
ter OF his message. He communicated his objections
TO Congress; they were overruled by both houses
and the bill was enacted into law in manner and
form as BY the % m ne does mot mot
been sf each rofr Sf ne savs ezaS ~ a asS @ 'SS S
so he would have achieved q result Of no
possible benefit to himself but dangerous
to his admirers; for II win be borne in mind That the
WS one LoeSzo s and with other 10
the House OF Representatives unknown" He might
have disclosed that these-unknown persons were the
members OF his Cabinet. This disclosure might have
placed them in jeopardy without diminishing the
peril which attends upon his own predicament. 1t
is not difficult to see that the line of defence to
which we have directed the present objection in
wolves the great question OF this case. IL tends to
matters more weighiy than mere resolution OF the
technical offences which float on the surface OF this
prosecution. Whoever attempts to measure the
magnitude Of the case by the comparatively insig-
nificant acts which constitute the technical crimes
and misdemeanors with which the respondent stands
charged will attain result far short OF It's true
character and be rewarded with "a most beggarly
appreciation Of the immensely OF its real proportions.
Far above and below and beyond these mere techni-
cal Offences grave as they undoubtedly are, the
great question which you are to settle Is TO be found
1t envelopes the whole case aud everything pertain
ing thereto 1t is the great circle which bounds the
sphere composed OF the multitude OF questions and
issues presented for your determination. The re-
spondent is arraigned for violation of and refusal
Cabinet advised him that certain bill presented for
his approval was in violation OF the constitution;
that he accepted their advice ana vetoed the bill,
and upon that and such additional advice as they
may have given him claims the right TO resist and
defy the provisions Of the bill, Notwithstanding
s bs0 nases 9 his s IN other e
words, he claims substantially that he may
determine for himself. what laws he will
disregard and refuse to enforce. In support Of this
claim he offers the testimony which for the time be-
ing Is excluded by the objection under discussion.
II am correct IA this, then was not mistaken when


asserted that this objection cOnronts OF the most
important questions involved IN this case. IL may
be said that this testimony Is offered merely TO dis
prove the intent alleged and charged In the articles,
but 1t goes beyond this and reaches the main ques
ton as will clearly appear to the mind OF any one
who will read with care the answer to the first
article. The testimony is improper for any purpose
and in every view OF the case. The constitution of
the United States article q section l, provides that
''the executive power shall be vested In
President Of the United States OF America"
The person at present exercising the func-
tons OF the executive Office is the respondent,
who stands at your bar to-day, charged with high
crimes aud msdemeanors m office. Before he en-
tered upon the discharge OF the duties devolving
upon him as President he took and subscribed the
constutonally prescribed oath Of Office, in words
foows:-'I do solemnly swear that that will faith
fully execute the Oillce oil President Of the United
States and will TO the best Of my ability preserve,
protect and defend the constitution of the United
States" This oath every part Of the constitu
tlon Imposes the duty OF observing every section and
clause thereof and includes the distribution of
powers therein made. The powers embraced and
distributed are legislative, executive and judicial.
or the first the constitution declares that .a legs-
lafye movers herein granted shall yesrcd m "A