the tenure-of-civil-office act; that Thomas's declarations are no evidence of the conspiracy, as shown in Roscoe, 414, 417. Mr. Starkie says that mere detached declarations and confessions of persons not defendants, not made in the prosecution of the objects of the conspiracy, are not evidence even to prove the existence of a conspiracy. In reference to the eighth article, which charges that the President committed and was guilty of a high misdemeanor in issuing and delivering to Thomas a letter of authority with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War," contrary to the act regulating the tenure of certain civil offices, without the consent of the Senate, while the Senate was in session, and there being no vacancy, the answer admits the issu-|| ance of the letter of authority, but denies any unlawful intent; insists that there was a vacancy, and that his object was to bring the question to a decision before the Supreme Court. Upon this article, I remark: 1. There is no provision in the tenure-of-civil-office act against 76 an intent unlawfully to control the disbursements of the moneys appropriated for the military service and the Department of War," and no offense can be lawfully imputed of such an intention. 2. Under the constitutional provision that the President shall "take care that the laws be faithfully executed," the President may make and repeal Army rules and regulations as to pay for extra service, there being no legislation on the subject, and he may lawfully exercise a general supervision and control over the acts of the Secretary and other subordinates as to the disbursement of moneys, as was determined by the Supreme Court of the United States in the case of the United States vs. Eliason, 16 Peters, 291; 14 Curtis, 304. and that that would be a sufficient protection to him. The ninth article takes us into a somewhat different field; and I believe when we get there we part for a season at least with Mr. Stanton. The ninth article charges the President with instructing Brevet Major General Emory that a part of the act passed March 2, 1867, entitled "An act making appropriations," &c., and especially the second section thereof, directing that all orders from the President shall be issued through the General of the Army, which had been promulgated by general orders for the government of the Army of the United States, was unconstitutional, with intent to induce Emory, as commander of the department of Washington, to violate the provisions of said act, and to obey the orders of the President, and also with intent to violate the act regulating the tenure of civil offices, and to prevent Stanton from holding the office of Secretary of War. The answer to this ninth article sets out, in substance, the note of the 22d of February, requesting Emory to call, the object being to be advised as to the military changes made in the department of Washington which had not been brought to the respondent's notice. Emory called respondent's attention to the second section of the appropriation act. Respondent said it was not constitutional. The conversation is stated, and you have seen that there is no substantial difference, as I understand it, between the conversation as set out in the President's answer and the conversation as stated by General Emory himself. The President says that he did not order or request Emory to disobey any law; that he merely expressed an opinion that the law was in conflict with the Constitution; and General Emory sustains that to all intents and purposes, for, when the subject was introduced, General Emory interrupted the President, and called his attention to this appropriation act. I have to say in reference to this ninth article, that the Constitution, article two, section two, with which you are all familiar, provides that "the President shall be Commander-in-Chief of the Army and Navy of the United States and of the militia of the several States when called into the actual service of the United States." The object of this provision, without turning to the cases and taking up your time in reading them, as is stated in 1 Kent, 283; 8 Eliot's Debates, 103; Story on the Constitution, sections 1491, 1492; and 5 Marshall's Life of Washington, pages 583 to 588, was to give the exercise of power to a single hand. In Captain Meigs's case Mr. Attorney General Black-and I presume from the eulogy passed upon Mr. Attorney Gen 3. The President's powers, as declared by the Supreme Court of the United States, time and again, are such as we maintain that no offense can be predicated of these acts. Without citing all the decisions, I refer to the case of Wilcox vs. Jackson, 13 Peters, 498, where it is said that the President acts in many cases through the heads of Departments, and the Secretary of War, having directed a section of land to be reserved for military purposes, the court presumed it to have been done by direction of the President, and held it to be by law his act; which, by the way, if I deemed it necessary, would be a very good authority te comment upon, in answer to the argument of the honorable Managers, that no implication results.in favor of the powers which are conferred upon the President under the Constitu-eral Black by the honorable Manager yesterday, tion. There is a case where, to all intents and purposes, the Supreme Court enforced the doctrine of implication in his favor, and held that it would be presumed that the Secretary had acted by direction of the President himself, his opinion now, at any rate, ought to be a very authoritative opinion-in 9 Opinions, 468, says: "As Commander-in-Chief of the Army, it is your right to decide, according to your judgment, what officer shall perform any particular duty, and as the supreme Exccutive Magistrate you have the power of appointment. Congress could not, if it would, take away from the President, or in any wise diminish the authority conferred on him by the Constitution." Mr. Story, in his Commentaries, volume three, section fourteen hundred and eighty-five, quoting from the Federalist, No. 74, says that Of all the cases and concerns of Government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision are indispensable to success; and these can scarcely exist except when a single magistrate is intrusted exclusively with the power.' In section fourteen hundred and eighty-six, he says: "The power of the President, too, might well be deemed safe, since he could not of himself declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belong to Congress." Chancellor Kent, in his Commentaries, page 282, says: 66 The command and application of the public force to execute law, maintain peace, and resist foreign invasion, are powers so obviously of an executive nature and require the exercise of qualities so characteristical of this department that they have always been exclusively appropriated to it in every wellorganized Government upon the earth.” He shows the absurdity of Hume's plan of giving the direction of the army and navy to one hundred Senators; of Milton's, of giving the whole executive and legislative power to a single permanent council of senators; and Locke's, to a small oligarchical assembly. In the case of the United States vs. Eliason, already cited, (16 Peters, 291,) it is said: "The President has unquestioned power to establish rules for the government of the Army, and the Secretary of War is his regular organ to administer the military establishment of the nation, and rules and orders promulgated through him must be received as the acts of the Executive, and as such are binding on all within the sphere of his authority." I have not brought in newspapers here, Senators, and I do not intend to bring them in, because the facts that I am about to state are so fresh in your recollection. Without going into any minutiæ of detail, it is enough for me to say, in general terms, that on the manifestation of this unfortunate difference, for, no matter who is right or who is wrong about it, it is an unfortunate thing that there is a difference of opinion between the Chief Executive of the nation and the Congress, or or any part of the Congress, of the United States; it is a matter to be regretted that such a difference of opinion exists among you; but when this correspondence occurred, when these resolutions were offered in the Senate and in the House, if my memory does not fail me, and I do not think it possible it can in the short interval of time that has elapsed, there was telegram upon telegram, offer upon offer, made on the one side to Congress to support them, and on the other side to support the President. The Grand Army of the Republic-the "G. A. R."-seemed to be figuring upon a large scale, and if there had not been the exercise of a very great prudence on the part of Congress and very great prudence on the part of the President of the United States himself we should have had this country enveloped in the flames of civil war. I hope, Senators, no matter what opinion you may entertain upon that subject; no matter who you may think was the strongest-and God forbid that the country should ever have any occasion to test who has the greatest military power at its command, the Congress of the United States or the President of the United States-I say, without entering upon such a question as that, which we all ought to view with horror, do give to the President of the United States the poor credit of believing that he has some friends in this country, that there are persons in the different States who would have been willing to rally around him. If an unfortunate military contest had occurred in the country, how it would have resulted the Great Being above us only knows. All that I claim for the President of the United States is that whether he had few or many forces at his command, your President, as I told you upon the first day I came here, has manifested a degree of patriotic forbearance for which the worst enemy he has on the face of the earth ought to give him credit. If he was a tyrant, if he was a usurper, if he had the spirit of a Cæsar or of a Napoleon, if his object was to wrest the liberties of this coun Senators, I maintain that there is no proof here to show, in the first place, that there was any unlawful or improper conversation between the President and General Emory. Mr. Manager BUTLER, with that fertility of invention which he has so eminently displayed at every stage of this proceeding, argues that it was either to bring about a civil war by resisting a law of Congress by force, or to recognize a Congress composed of rebels and northern sympathizers, that this conversation was had. Now, let us look to the circumstances under which the conversation took place. Mark you, an angry correspondence with General Grant had occurred from the 25th of January to the 11th of February, 1868. The President had charged, or intimated, at least, in the course of that correspondence, that he regarded Gentry, your President could very easily have eral Grant as manifesting a spirit of insubordination. The removal of Mr. Stanton took place on the 21st of February. The Senate's resolution of the 21st of February, disapproving of the removal of Stanton, was sent to the President and the President sent a formal protest or message in response on the 24th of February. I sounded the tocsin of war, and he could have had some kind of a force, great or small, perhaps to rally around him. But, instead of doing that, he comes here through his counsel before the Senate of the United States; and although he and his counsel, or at least I as one of them-I do not undertake to speak for the other gentlemen-honestly believe that under the Constitution of the United States organizing the Senate and the House of Representatives, the House of Representatives as at present constituted, with fifty Representatives from ten of the southern States absent, has no power to present articles of impeachment; and although he believes, as I do most conscientiously, that the Senate, as at present constituted, with twenty Senators absent from this Chamber who have a right to be here, has no power to try this impeachment, he makes no objection to your proceeding to try him. I shall not argue the question I have just suggested, for, in view of the almost unanimous vote against the resolution of Senator DAVIS, I think it would be an idle consumption of time to do so. I only advert to it so that I may place upon record this fact. I say that, although the President and one, at least, of his counsel entertained this opinion, and doubt whether the House of Representatives, as organized, has the right to present the charges, or the Senate, as organized, has the right to try them under the Constitution, which says that "no State shall be deprived of its equal suffrage in the Senate," yet the President, instead of resorting to war, the President, instead of resorting to any of those acts of arbitrary tyranny and oppression which are resorted to by the ambitious man such as he is described to be, has come here; and while he states the objection, through me, at least, as one of his counsel, yet, in a peaceable manner, in a quiet manner, he submits this question, as well as all others, to be judged by the Senate of the United States in its present organization. And will you not at least give him credit for some degree of forbearance? When gentlemen talk of his being a tyrant and a usurper, when they talk of his object and purpose in sending for General Emory, Senators, do they prove any improper design upon his part? None on the face of the earth. In this state of things, when the whole country was agitated and excited; when men's minds were aroused everywhere in the unfortunate division of parties in the United States to such an extent that they were offering troops on the one hand to sustain Congress and troops on the other hand to sustain the President, and when the General of the Army and the President had differed in their opinions, I maintain that the very fact that the President has done nothing of a military character shows that he had no intention to do the acts which are imputed to him. But when he saw these dispatches, when he knew that there was a difference between General Grant and himself, when he knew that there were persons sending dispatches through the newspapers, Governors, it was said, and leading men in the various States, as to how they would stand up to the Congress of the United States in this controversy, it was natural, right, proper, within the legitimate scope of the powers conferred upon him by the Constitution, that he should send for this officer, that he should inquire what was the meaning of these new troops that were brought into the city of Washington. He had a right to do it, and the fact that he did do it is no evidence of any unlawful intention or design upon his part; but it proves that he was endeavoring to understand, as it was his duty to understand as the Commander-inChief of the Army of the United States, what was the meaning of the introduction of these forces. How did he know but that General Grant in the progress of this quarrel might attempt to assume the powers of a military dictator? How did he know but that General Grant might be endeavoring to envelop, to surround him by troops, and to have him arrested? Had he not a right to send for an officer? Had he not a right to inquire into the introduction of these military forces here? When he found that it was only a trivial force, when he found that there was no particular design on the part of anybody to violate the Constitution of the United States, his inquiry stopped; no effort was made upon his part to gather an Army or to rally a force to go to war with the Congress of the United States, but he retains counsel, comes here by his counsel, and in a peaceful manner submits himself to the judgment of the American Senate. I said it to you on the first day that his counsel appeared here, that the history of the whole world does not furnish anything in moral sublimity and grandeur surpassing the trial in which you are now engaged. I said then, and I repeat it now, that I was delighted and rejoiced to see that this unfortunate controversy was taking this turn. I regretted that any such controversy had originated, regretted that there was any such unhappy difference of opinion between the Congress of the United States and the President; but in view of these red-hot dispatches that were pouring in upon both sides from every quarter of the United States, I did felicitate my country and I felicitated you upon the thought that the President of the United States had come here through his counsel and that he was willing to abide the arbitrament of the American Senate, the sworn men of the Constitution, the judges of your own constitutional powers. You judge as any other court judges that undertakes to determine the question of its jurisdiction. Let you judge for yourselves whether you have the constitutional power to try him. He comes before you in this peaceable and quiet mode; and I maintain, Senators, that he is not justly chargeable with the imputations that are made against him, and that his conduct is a full answer to the entire argument that has been made by the gentlemen upon the other side. They may impute motives; they may say just as much as they please about the conversation with General Emory or anybody else; the | President has brought no force here; he has not attempted in any manner whatever to over- speech, and to tolerate the licentiousness of the press, than it is to impose such restrictions as are imposed in other countries. Public opinion, as a general rule, will regulate and control the indecency of speech, and it will regulate and control the licentiousness of the press. If public opinion does not do it as a general rule, in a great many cases the arm of the law is long enough and it is strong enough to apply any corrective that may be necessary. But the American people love to exercise the freedom of speech; and let it be known and remembered always that great as the powers of Congress may be, great as the powers of the President of the United States are, there is in a technical sense, a body of men who have ever been admitted by all politicians and public men The tenth article charges the President with making intemperate, scandalous, and inflammatory harangues and uttering loud threats and bitter menaces against Congress and the laws of the United States, which are particu-in the United States to be the sovereigns, the larly indecent and unbecoming in the Chief Magistrate of the United States, and have brought the high office of President into contempt, ridicule, and disgrace. The charge is that he did this and was guilty of a high misdemeanor in office; and the article specifies three speeches-one at the Executive Mansion, one at Cleveland, and one at St. Louis. A great deal of testimony has been taken about those speeches. I might make an argument as to whether they are faithful representations of what the President said or not. I shall not weary your patience after having delayed you so long with any argument upon that point. The answer says that the first amendment of the Constitution provides that "Congress shall make no law abridging the freedom of speech or of the press. "Freedom" is defined to be personal and private; "liberty" to be public. We say, therefore, that this is a personal right in the President as a citizen. I say further that his speeches were not official, like his communications to Congress, but were private and personal and in answer to the call of his fellow-citizens. masters of both; that is, the people; they are the common constituents of Congress and of the President. Members of Congress have the right to speak and to talk with perfect freedom of the conduct of the President, and, as we maintain, the President in turn has the right to. " 66 carry the war into Africa," and to speak about Congress whenever he is assailed; and if he does this in his private intercourse with the citizens of the United States, not in official intercourse, he has just the same right to do it that any other citizen has in our Government; and whenever you destroy the right of the President of the United States to defend himself against charges that may be made against him either in Congress or out of Congress, then you put the President at the feet of Congress and you destroy that independence which was intended by the Constitution to be secured to each of the coördinate departments of the Government in their appropriate sphere. It was intended that the legislative department should be independent here and within the circle of its appropriate duties; that the judicial department should be, in like manner, independent in the exercise of the functions and powers properly and appropriately belonging to it, and that the President of the United States, as to all executive matters, should be equally independent, both of the judiciary and of the Congress of the United States; and to hold otherwise is to enable Congress, as we insist, to monopolize all the powers of the Constitution and to become ultimately a despotism such as never was contemplated by the fathers. Ten years ago it would have struck the American people with astonishment that such a charge should be preferred against the President of the United States. Almost from my boyhood down to the commencement of the war I have heard politicians talking time and again about what was known as the old sedition law; and if there ever was anything that stunk in the nostrils of the American people it was what was called the sedition law, the object of which was to prevent the publication of matter Now, Senators, I do not intend to go mithat might affect the President or the Govern-nutely into this question, for I desire to close ment of the United States. We in this country like to exercise the freedom of speech. Our fathers guarantied it to us in the Constitution, and, like the liberty of the press, which is also another cherished right dear to every American citizen, we like to have the largest liberty in the exercise of the right. The American people have been accustomed to it ever since they were a nation; and it is a great deal better to tolerate even impropriety and indecency of my remarks this evening, if you will have the patience to hear me to a close, and I shall try to close them at as early a period as I can. I do not intend to go minutely into the discussion of this question; but I have to say in regard to the President of the United States just as I said in regard to the House of Representatives: he is a mortal man; he is made of flesh and blood. The President of the United States has temper, passion, just like any other man. When things are said about him in Congress or anywhere else, pray let us know why it is that he may not defend himself. I believe it was the 31st of January, 1866, but I may be mistaken in the date, when the venerable leader, as he is called, of the House of Representatives, who had opposed the President's nomination at Baltimore, and who, if I am not mistaken in the history of the country, had insisted there that the President was out of the United States, who never did favor him under any circumstances whatever, spoke in the House of Representatives of Charles I. This was a few days before the President made one of the speeches that he has made in the course of this controversy. The President made a speech at the Executive Mansion on the 22d of February, 1866, in which he alluded to that, and in which he treated it as a sort of invitation to assassination. That imputation, so far as I know, was never noticed by the venerable Manager in the House of Representatives at all. Other members of Congress assailed him. You had the right to do it, a perfect right to do it, in the exercise of that freedom of speech and of that power of deliberation that belonged to you, a perfect right to say anything you pleased of the President of the United States. But when these things were said by members of Congress, when they were published and circulated all over the land, spread broadcast in the newspapers, what is there in the Constitution, what is there in the position of the President of the United States, that ties his hands and prevents him from exercising the ordinary right of self-defense that belongs to any other citizen of the land? I admit that the President of the United States in a communication made officially to Congress ought to observe proper decorum, that he ought to observe that amenity of expression, if I may use such a phrase, as should be employed in the intercourse between one department of the Government and another; but I maintain that when Andrew Johnson makes a tour from Washington city to Chicago and Cleveland and St. Louis and Cincinnati, and returns to the city of Washington, he is nothing but a private citizen. To be sure, he is President of the United States; but nothing in the Constitution, nothing in the laws of the land, undertakes to regulate his movements under such circumstances. He goes as a private citizen; and when he goes, if he is called out to make a speech as he was called out to make it by the people, and he chooses to answer the call, and if some severe philippics have been uttered against him by members of Congress, and he chooses to answer them; if members of Congress have insisted in the strongest sort of terms on their right to hold this doctrine or that doctrine or the other doctrine, why may not the President of the United States answer these things in the same way, appealing as he does to the people, who are the common constituents of both? Who would deny to any Senator or any Representative the right when he goes home, or when he goes anywhere else within the limits of the magnificent territory that now constitutes the United States of America-who would have the assurance and the presumption to deny the power of any one of you, either in what is ordinarily called a stump speech or in any other mode of communication, to assail the conduct of the President of the United States? Why, Senators, this very thing of the freedom of discussion, although in heated political contests it is often carried to an improper extent, is the very life and salvation of the Republic. | This thing of having parties in our land, although party spirit seems to have culminated in some of those dangers which were apprehended by Washington in his Farewell Address, and having parties a little more equally divided than they have been within the last three or four years in the United States, is essential to the preservation of the liberty of the American citizen. When parties are nearly equally balanced they watch each other, and they are sedulously cautious in regard to anything that may violate the Constitution of the United States. I will not, as I have said, go minutely into the testimony on this matter; but I believe it has been proved, in regard to every one of those occasions, that it was an occasion sought not by the President, but.by others. It is fresh in your recollection that when Mr. Senator JOHNSON and others called upon the President at the Executive Mansion they called upon him in their character of citizens, and he replied to them as he had a right to reply to them. When he went to Cleveland the proof shows that he did not desire to do anything more than to make a brief salutation to the people and leave them, but he was urged by his friends to do more; and I think it very likely, Senators, from my knowledge-and I am appealing to your own knowledge of the manner in which things are done in our country-I think it very likely, from the circumstances which are detailed here in evidence, and especially from the report of the speech itself, that there was a mob there at Cleveland, ready cut and dried, and prepared to insult and to assail the President of the United States in the manner they did do and to prevent him, if possible, from being heard. So, when they gave him provocation, he replied just as any other man would do and just as any other man had the right to do; and if he did make use of strong expressions in regard to the Congress of the United States, his expressions were not stronger than he had the right to use. Without discussing the question who was right or who was wrong, and insisting as I do upon the freedom of speech, I maintain this. So when he went to St. Louis he was again urged by his friends, according to the testimony, to go out and address the people. He had no desire to do so; he was urged |