Year: 1868

The argument of Mr.. Boutwell, is elaborate
and effective. 1t covers the multiplicity of
small points raised by the Presidents counsel,
and vet clearly lifts into the foreground the
vital issues in the case, to which all the others
| are collateral-the removal of Stanton and the
appointment of Thomas. He opens with a
clear statement of the relation which Congress
sustains to all other departments OF the Gov
ernment. The Constitution gives the National
Legislature inherent supremacy over the
courts and the President, by authorizing 1t
"to make all laws which shall be necessary
{" and proper for carrying into execution" not
merely its own powersy but " all other powers
vested by the Constitution in the Govern
ment of the United States, or any department
" or officer thereof" This single clause ends all
claims to equality or rivalry between the three
! departments of the Government, since no de-
partment or officer can have any constitutional
| function or power which is not thereby placed
under the control of Congress. Whatever
powers of appointment OF removal might be
| given to the President by other clauses of the
| Constitution, are here brought under the legis-
lative control of Congress. Whether the power
of removal is an Executive power, or is Incl


dental to the power to appoint, in either case
Congress must decide by laws in what man
ner the President should carry it into execu-
ton. In pursuance of this comprehensive grant
of power to Congress, they have passed the
Tenure-of- Office law Having enacted it, the
President must obey it. His functions are not
legislative. Though his signature to an act Is
sought in the first instance, he is no essential
part of the law-making power. If a bill pass
by twO-thirds vote over his veto, it becomes
law Hence, while the legislative power in
Great Britain is vested in King Lords, and
| Commons, our Constitution declares that
"all legislative powers are vested in
Congress- alone, instead of in Congress and
the President. Still less are his functions ju-
| dicial, for the Constitution vests the whole
judicial power in a Supreme Court, and in such
| inferior courts as Congress shall establish, and
| in the Senate sitting for the trial of impeach-
ments. The Presidents functions are neither
| to make the laws or to adjudge their constitu-
tionality, but simply to obey them. Since the
President had no authority to pass upon the
constitutiOnalty of an act, the Senate is not
called on to decide whether he construed it
correctly, and hence is not called on to con-
slider the question of its constitutionaity. If it
|
| the President to test whether a law is uncon-
stitutional except by disobeying it, it is equally
true that if he disObeys it there is no way to
prove and vindicate its constitutiOnality ex-
cept to impeach and remove him for his DISC
bedience.


| Since the President Intentionally disobeyed
the law, such intentional disobedience involves
all the criminal intent of which the nature of
| the case admits. He cannot evade the risk he
assumed by pleading that he thought the law
ought to be broken. This adds only insult to
defiance If he can annul one law, he can
annul all. He can cOnstrue the Courts and Con-
gress to be unconstitutional bodies, and so
defy all attempts to curb his despotic usur-
pations. This is absolute monarchy Surely
our fathers, fresh from their struggle for lib
erty, and jealous against every insidious ap-
prOach of despOtism, did not intend to make
the President the absolute dictator which john
son suppOses him to be. Were there any merit in
the plea that the President violated the law in
order to test its consttutionality, this cannot
avail He has shown no desire to bring the ques-
tion before the Courts. A quo ,CarrantO can issue
for this purpose only on his application, and he
has not sought it. In the proceedings against
Gen. Thomas the question might have been
tested. But they were dismissed on his own
motion. The Presidents sole aim, as indicated
by his acts, has been to get possession OF the
War Department, not to test the constitution
ality of the law.


No power of removal is given to the Presi-
dent by the Constitution. The only power of
removal mentioned therein is the power Of
Congress to remove the President, and others,
by impeachment. But as the removal of an
officer has always been effected by the appoint
ment of a successor, the appointment was re-
garded as the official act the removal as the
incidental consequence. The Senate in con-
| senting to the appointment of the nominee,
tacitly assented to the removal of the last in
cumbent. But Andrew johnson, for the first
time in our history, claims to exercise an inde-
pendent power to remove, without appointing
any successor, and of course without asking
the consent of the Senate. The usurpation is
at war with all precedent, as well as in viola