The CHIEF JUSTICE. Senators will please give their attention. The counsel for the President will proceed.
Hon Henry STANBERY, on behalf of the respondent, addressed the Senate as follows:
Mr. Chief Justice and Senators, it may seem an act of indiscretion almost amounting to temerity that in my present state of health I should attempt the great labor of this case. I feel that in my best estate I could hardly attain to the height of the great argument. Careful friends have advise me against it. My watchful physician has yielded a half reluctant consent to my request, accompanied with many a caution that I fear I shall not observe. But, Senators, an irresistible impulse hurries me forward. The flesh indeed is weak; the spirit is willing. Unseen and friendly hands seem to support me. Voices inaudible to all others, I hear, or seem to hear. They whisper words of consolation, of hope, of confidence. They say, or seem to say to me, "Feeble champion of the right, hold not back; remember that the race is not always to the swift nor the battle to the strong; remember in a just cause a single pebble from the brook was enough in the sling of the young shepherd."
Senators, in all our history as a people , never before have the three great departments of the Government been brought on the scene together for such an occasion as this. We have had party strifes in our history before. Many a time the executive and legislative departments have been in fierce and bitter antagonism. Many a time before extreme party men have advised a resort to impeachment. Even as far back as the time of Washington his grand and tranquil soul was disturbed in that noted year, 1795, when he stood in antagonism with a majority in the House of Representatives upon that famous British treaty, when, upon their demand, he refused to surrender the correspondence, impeachment by the bad men of the party was then threatened. So, too, in many a subsequent day of our party contests. Oftentimes in the remembrance of men not older than myself, oftentimes when to accomplish the purposes of the party there seemed to be this way and no other way have we heard this same advice given, "This is the remedy to follow;" but, happily for us, such bad counsels never heretofore have prevailed.
This undoubtedly is a remedy within the contemplation of the Constitution, a remedy for a great mischief. Our wise forefathers saw that a time might come, an emergency might happen when nothing but the removal of the Chief Magistrate could save the nation; but they never made it to be used for party purposes. Has the time come now? Has, after the lapse of eighty years, the time at last come when this extreme remedy of the Constitution must be applied? If so, all just men will say, amen. But if, on the contrary, bad advice has at last prevailed, if this is a step at last in the interests of party, carried by the bad advice of the worst men of the party, if at last this great and august tribunal is to be degraded to carry out a party purpose, Oh, then, there remains a day of retribution fro every man that participates in this great wrong, sure to come, nor long to be delayed . . . .
What new and unheard of conduct by a President has at last made a resort to this extreme remedy unavoidable? What presidential acts have happened so flagrant that all just men of all parties are ready to say "the time has come when the mischief has been committed; the evil is at work so enormous and so pressing that in the last year of his term of office it is not safe to await the coming action of the people? . . .
Now, first of all, it must not escape notice that these articles are founded upon the express averment that from the moment of his reinstatement on the non-concurrence of the Senate Mr. Stanton became the lawful Secretary for that Department; that, upon such order of the Senate, he at once entered into possession of the War Department and into the lawful exercise of its duties as Secretary and that up to the date of the articles of impeachment that lawful right and actual possession had remained undisturbed; that all the acts charged in these eight articles were committed during that time; that , not withstanding these acts, Stanton remains lawfully and actually in possession; and that the office has been at no time vacant.
We see, them that, according to the case made in these eight articles, the President did not succeed in getting Mr. Stanton our of office or of putting General Thomas in, either in law or in fact. We see, according to these articles, that the President did not succeed, either by force or otherwise, in preventing Mr. Stanton from holding his office or in getting possession of the public property in that Department. There has been, according to the very case made in these articles, no public mischief. The lawful officer has not been disturbed; the lawful custody of the public property and public money of the Department has not been changed. No injury has been done either to the public service or the public officer. There has been no removal of Mr. Stanton---only an abortive attempt at removal. There has been no acting Secretary put in an office vacant by death resignation, or disability---put there during the time of such actual vacancy or temporary absence. All the time of such actual vacant or temporary absence. All the time the Secretary himself has been there in the actual performance of his duties. No ad interim officer has, in law or fact, been constituted, for in law or fact there has been no interim as to the Secretary himself. There has been no moment of time in which there could be an acting Secretary or an ad interim Secretary, either in law or in fact, for it is impossible to conceive of an ad interim Secretary of War when there is no interim, that is, when the lawful Secretary is in his place and in the actual discharge of his duties.
Mark it, then, Senators, that the acts charged are high crimes and misdemeanors in these eight articles, in respect to putting Mr. Stanton out and General Thomas in, are things attempted and not things accomplished. It is in the attempt, and the unlawful interest with which it was formed, that the president is to be held responsible for. So that it comes to be a question of vital consequence in reference to this part of the case whether the high crimes and misdemeanors provided for in the tenure-of-office act and in the second section of the military appropriation act purport to punish not only the commission of the acts, but to punish as well the abortive attempt to commit them . . . .
And here, Senators, before I proceed to consider these articles in detail, seems to me the proper time to bring your attention to another consideration, which I deem of very great moment. What is the subject-matter which constitutes these high crimes and misdemeanors? Under what legislation does it happen that the President of the United States is brought under all this penal liability? What are these high crimes and misdemeanors? Has he committed treason or bribery? Has he appropriated the public funds or the public property unlawfully to his own use? Has he committed any crime of violence against any person, public officer or private individual? Is he charged with any act which amounts to the crimen falsi or was done causa lucri? Nothing of the sort. These alleged high crimes and misdemeanors are all founded upon mere forms of executive administration. For the violation, they say, of the rules laid down by the legislative department to regulate the conduct of the executive department in the manner of administration of executive functions belonging to that department . . . .
Now, when President Johnson was invested with his office, he found Mr. Stanton holding the office of Secretary of War. He had been appointed by Mr. Lincoln during his first term, and was holding in the second month of Mr. Lincoln's second term under the old appointment. Mr. Stanton was neither appointed by Mr. Lincoln or Mr. Johnson for that second term; so that we are relieved from all question whether the fractional term, counting from the accession of Mr. Johnson, is to be called the unexpired term of Mr. Lincoln, or the proper term of Mr. Johnson, and whether, if he had been appointed or reappointed by Mr. Lincoln during his second term, he might not have claimed that he was entitled, as against Mr. Johnson, to hold on o its end. Mr. Stanton never had any tenure of office under the tenure-of-office act for the current presidential term, never having been appointed for that term by either Mr. Lincoln or Mr. Johnson. He, therefore, does not come within the category of those members of Mr. Johnson's Cabinet who have been appointed by Mr. Johnson . . . .
But, Senators, if you should be ot opinion that the tenure-of-office act protected Mr. Stanton, and that the attempt to remove him was equivalent to a removal, we next maintain---
First, That the President had a right to construe the law for himself, and if, in the exercise of that right, he committed an error of construction, and acted under that error, he is not to be held responsible.
Second, If he had so construed the law as to be of opinion that Mr. Stanton was intended to be protected by it against his power of removal, and was also of opinion that the law in that respect was contrary to the Constitution, he is not to be held responsible if he therein committed an error . . . .
The President is not a ministerial office. His function is not merely to execute laws, but to construe them as well. The Constitution makes this too clear for question. It does not, it is true, vest him with judicial power, which always implies the exercise of discretion. It vests him with the executive poser, but, nevertheless, with a discretion as the mode of its execution. The Constitution contemplates that, in the exercise of that executive power, he may be involved in doubt and perplexity as to the manner of its exercise, and, therefore, gives him the privilege of resorting to his Cabinet officers for advice. The Constitution binds him by an oath not only faithfully to execute his office, not merely to carry into execution laws of Congress, but also, to the best of his ability, to preserve, protect, and defend the Constitution itself. The great trust implies the exercise of a large discretion. . . .
When, therefore, this tenure-of-office act came to be considered by the President in reference to his purpose to remove Mr. Stanton from office, he had a right and it was his duty to decide for himself whether the proposed removal of Mr. Stanton was, or was not forbidden by the act. As yet that act had received no construction by the judicial department, nor had the president any authority to send the act to the Supreme Court, and require the judgment of that court upon its true meaning. The Constitution gave him no right to resort to the judges for advice. He could not settle his doubts, if he entertained doubts, by asking any other opinions than those of the heads of Departments. . . .
The question then recurs, is the President invested with a discretion in his executive capacity? In the exercise of that discretion may he compare the law with the Constitution, and if, in his opinion, the law vests him with a power not granted by the Constitution, or deprives him of a power which the Constitution does grant, may he refuse to execute the power so given, or proceed to execute the power so taken away? We have already cited a late decision of the Supreme Court directly in point. That presented the direct question whether, as to the reconstruction acts, passed like this tenure-of-civil-office act, by a vote two thirds in each House, the President had, notwithstanding, in reference to those laws, an executive discretion. The decision maintains that he had.
I now proceed to show that this is no modern doctrine. The authorities which I shall cite go beyond the necessities of this case. Some of them do to the length of asserting that this executive discretion survives even after the passage of the law by the legislative department, it has been construed by the judicial department, and in that extreme case, leave the President at last to act for himself in opposition to the express will of both the other departments. I will first cite some opinions upon this extreme position.
Mr. Jefferson says:
"The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches.". . . .
President Jackson, in his veto message upon the bank bill, uses this language:
"If the opinion of the Supreme Court covered the whole ground of this act it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the court must each for itself be guided by its own opinion of the Constitution." . . . .
Whether these views are sound or not is not now the question. It happens that as to this tenure-of-civil-office law, it has never been held by the Supreme Court to be constitutional. But, if it had been otherwise, if this law had been pronounced constitutional by a solemn decision of the Supreme Court of the United States, what ground would there be for holding the President guilty for a high misdemeanor in forming an opinion sanction by the authority of his predecessors. . . .
Next, as to the tenth article, relative to the speeches made at the Executive Mansion, at Cleveland, and at St. Louis, in the months of August and September, 1866. It is in the name of all of the people of the United States that you, Senators, are, in this article, called upon to hold the President of the United States criminally responsible, even to the loss of his office, for speaking, as the article has it, with a loud voice to assemblages of American citizens, what is called scandalous matter touching the Thirty-Ninth Congress of the United States . . . .
It passes comprehension that such an article as this tenth article as this tenth article should be gravely presented in the name of the American people for words spoken to them by one of their servants, the President, against another of their servants, the President, against another of their servants, the Congress of the United States. If there is any one precious right which our people value as a jewel beyond price it is the right of free speech with the corresponding right of a free press. Muzzle the one or gag the other, and we are back again to the rimes when there was no such body in the State as the people. . . .
And now, Senators, I have done with the law and the facts of the case. There remains for me, however, a duty yet to be performed---one of solemn import and obligation--- a duty to my client, to my former chief, to my friend, There may be those among you, Senators, who cannot find a case of guilt against the President. There may be those among you who, not satisfied that a case for impeachment has yet arisen, are fearful of the consequences of an acquittal. You may entertain vague apprehensions that, flushed with the success of an acquittal, the President will proceed to acts of violence and revolution. Senators, you do not know or understand the man. I cannot say that you willfully misunderstand him; for I, to, though never an extreme party man, have felt more than once, in the hear of party conflicts, the same bitter and uncomprehending spirit that may now animate you. The time has been when I looked upon General Jackson as the most dangerous of tyrants. Time has been when, day after day, I expected to see him inaugurate a revolution; and yet, after his administration was crowned with success and sustained by the people, I lived to see him gracefully surrender his great powers to the hands that conferred them, and , under the softening influences of time, I came to regard him, not as a tyrant, but as one of the most honest and patriotic of men.
Now, listen for a moment to one who, perhaps, understands Andrew Johnson better than most of you; for his opportunities have been greater. When, nearly two years ago, he called me from the pursuits of professional life to take a seat in his Cabinet, I answered the call under under a sense of public duty. I came here almost a stranger to him and to every member of the Cabinet except Mr. Stanton. We had been friends for many years. Senators, need I tell you that all my tendencies are conservative? You, Mr. Chief Justice; who have known me for a third of a century, can bear me witness. Law, not arms, is my profession. From the moment that I was honored with a seat in the Cabinet of Mr. Johnson not a step was taken that did not come under my observation, not a word was said that escaped my attention. I regarded him closely in Cabinet, and in still more private and confidential conversation. I saw him often tempted with bad advice. I knew that evil counselors were more than once around him. I observed him with the most intense anxiety. But never, in word, in dead, in thought, in action, did I discover in that man anything but loyalty to the Constitution and the laws. He stood firm as a rock against all temptation to abuse his own powers or to exercise those which were not conferred upon him. Steadfast and self reliant in the midst of all difficulty, when dangers threatened, when temptations were strong, he looked only to the Constitution of his country and to the people.
Yes, Senators, I have seen that man tried as few have been tried. I have seen his confidence abused. I have seen him endure, day after day, provocations such as few men have ever been called upon to meet. No man could have met them with more sublime patience. Sooner or late, however, I knew the explosion must come. And when it did come my only wonder was that it had been so long delayed. Yes, Senators, with all his faults, the President has been more sinned against than sinning. Fear not, then, to acquit him. The Constitution of the country is as sage in his hands from violence as it was in the hands of Washington. But if, Senators, you condemn him. if you strip him of the robes of his office, if you degrade him to the utmost stretch of your power, mark the prophecy? The strong arms of the people will be about him/ They will find a way to raise him from any depths to which you may consign him, and we shall live to see him redeemed, and to hear the majestic voice of the people, "Well done, faithful servant, you shall have your reward!"
But if, Senators,
as I cannot believe, but as has been boldly said with almost official sanction,
your votes have been canvassed and the doom of the President is sealed,
then let that judgment not be pronounced in this Senate Chamber; not here,
where our Camillus in the hour of our greatest peril, single-handed, met
and baffled the enemies of the Republic; not here, where he stood faithful
among the faithless; not here, where he fought the good fight for the Union
and the Constitution; not in this Chamber, whose walls echo with that clarion
voice that, in the days of our greatest danger, carried hope and comfort
to many a desponding heart, strong as an army with banners. No, not
here. Seek out rather the darkest and gloomiest chamber in the subterranean
recesses of this Capitol, where the cheerful light of day never enters.
There erect the altar and immolate the victim.