Year: 1868




olares after the fact that he only vio.
lated either or both in order to have
the question Of the construction Of
the Constitution in the one case, or Of
the validity Of the statute in the
other, decided at some future day 10
the Supreme Court.


The counsel for the defense rMr.
Curtis in his opening argument at
tempts TO gain say this statement that
tho President asserts any such power.
He says he has no idea of his duty
but again BE says, Impeachment
Record, p. 3O2, } that


"When the question arises whether
particular Inv has cut off a power
coufded 20 him by the people, aud be
alone can canse judicial decision to
como between the two branches of
the Government, 10 say which Of them
is right, and after due delibcration he
settles down upon the opinion that
such is the character Of the law-it
remains to be decided by you whether
there is any violation of his duty
when he takes the neodful steps to
raise that question aud have it peace
fully decided"


What is to hinder him from saying
that every law cuts OF a power con.
6ded to him by the peopleH What
is there to justify any man in saying
that it he can thus decide in respect
Of ono law that he may not so decide
Of every law, that it cuts OF a power
conddcd to him by the people ?


A careful consideration of tho
articles Of impeachment and Of the
answers thereto of the President can.
not fail to satisfy any oandid, intelli-
gent man that this is the Presidents $
position before the Senate and eoun.
try. What article Of the impeaoh-
ment has he dscided1 What ofense
laid to his charge that is not openly
confessed by his answer or clearly es.
tablished by the testimony in the
case What senator doubts, or can
doubt, that on the 2lst of February,
1868, while the Senate was in session,
the President issued his order for the
removal Of Edwin NJ. Stanton, from
the Office Of Secretary for the Depart.
ment Of War, and this without the
advice and consent Of tho Senate. Is
not this confessed in the answer? Is
it not established by the written order
of the President himself2 If this act
af tho President is not warranted by
the Constitution, but is in clear vio-
lation Of its express latter, and also
Of ihs law Of 1867, is not the Presi-
deaf guilty, as charged in the hrst
article, of = high misdemeanor in
office 1t was said on the trial Of
Judge Peck BY Mr.. Buchanan, and
not questioned by the counsel for the
accused or by tho Senate, that by a
violation in Office Of the Constitution
or Of the laws Of the laud is inpeacha-
bic, aud this whether the violation be
by abuse or usurpation Of authority.
(Peck's trial, 427.) For the pur-
poses Of this case l think it capable
Of the cIearest demonstration that
this is the rule which ought to govern
its decision. II is conceded that n
partial exception might be found to
this rule in the case Of judicial Off
GERS, but the opinion is ventured that
no other exception can be found.
The reason Of the exception must be
apparent, and is well expressed by
Kent that


Judicial exercise Of power is i'm &.
posed upon the courts, and they must
decide and act according to their
judgment, and therefore the law will
protect them. - Yates rs. Lansing, 5
Johnson's Reports, 29l.


Is il not clear that Judge could
hardly be charged with usurpation,
who, in his Office, acting within his
jurisdiction, should judicially decide
legislative enactment null aud void?
Aud is it not equally clear that a
mere executive officer of the United
States, clothed with no judicial au .
thority, and bound by his authority
to take care that the laws be faithful
ly executed, who should thus decide
or attempt to set aside as null and
void law Of the United States,
would be guilty of usurpation? To
change the judicial officer ia the case
supposed it would be necessary to
aver and prove that he acted corrupt
lly. To charge the executive officer,
in the case supposed, no such aver
ment would be necessary; for the
reason that he had no colorado au-
thority for his malfeasance, aud his
act of usurpation would be a crime
for the consequences of which he must
answer, and from which he could not
escape upon the prete1t that he was
guilty only Of an error Of judgment,
or that he usurped authority 10 igno.
rance alike Of the obligation Of his
oath and the requirement. of the Con
stitution.


Sedgwick says:


"Good faith is no excuse for the
violation Of statutes. Ignorance of
the law cannot be set up in defence,
and this rule holds good in civil as
we'll as in criminal cases. ."-Sedgwick
on Stat. aud Const. Law, p. 100.


1t has been said by the counsel for
the accused that in the event that the
Congress should enact = law in clear
violation of the express provisions of
the Constitution, as, for example, a
law declaring that the President
should not be Commander in. Chief
of the Army and Navy, that he
might properly take means to bring
the question before the courts for de-
cision.


While it is very clear that specific
powers are vested in the President
which Congress cannot rightfully
take away, it is equally clear that
there is no excuse for any man, under
ary pretence whatever, setting up for