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the Senate, partly or in whole. This, Mr. Butler affirmed, was the real question at issue before the Senate and the American people. He said.

"Has the President, under the Constitution, the more than royal prerogative at will to remove from office, or to suspend from office, all executive officers of the United States, either civil, military or naval, and to fill the vacancies, without any restraint whatever, or possibility of restraint, by the Senate or by Congress, through laws duly enacted? The House of Representatives, in behalf of the people, join issue by affirming that the exercise of such powers is a high misdemeanor in office. If the affirmative is maintained by the respondent, then, so far as the first eight articles are concernedunless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime-the respondent must go, and ought to go, quit and free."

This point as to the legal right of the President to make removals from office, which constitutes the real burden of the articles of impeachment, was argued at length. Mr. Butler assumed that the Senate, by whom, in conjunction with the House, the Tenure-of-Office Act had been passed over the veto of the President, would maintain the law to be constitutional. The turning point was whether the special case of the removal of Mr. Stanton came within the provisions of this law. This rested upon the proviso of that law, that

"The Secretaries shall hold their office during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

The extended argument upon this point, made by Mr. Butler, was to the effect that Mr. Stanton having been appointed by Mr. Lincoln, whose term of office reached to the 4th of March, 1869, that of Mr. Stanton existed until a month later, unless he was previously removed by the concurrent action of the President and Senate. The point of the argument is, that Mr. Johnson is merely serving out the balance of the term of Mr. Lincoln, cut short by his assassination, so that the Cabinet officers appointed by Mr. Lincoln held their places, by this very proviso, during that term and for a month thereafter; for, he argued, if Mr. Johnson was not merely serving out the balance of Mr. Lincoln's term, then he is entitled to the office of President for four full years, that being the period for which a President is elected. If, continues the argument, Mr. Stanton's commission was vacated by the Tenure-of-Office Act, it ceased on the 4th of April, 1865; or, if the act had no retroactive effect, still, if Mr. Stanton held office merely under his commission from Mr. Lincoln, then his functions would have ceased upon the passage of the bill, March 2, 1867; and, consequently, Mr. Johnson, in "employing" him after that date as Secretary of War, was guilty of a high misdemeanor, which would give ground for a new article of impeachment.

After justifying the course of Mr. Stanton in holding on to the secretaryship in opposition to the wish.of the President, on the ground that "to desert it now would be to imitate the treachery of his accidental chief," Mr. Butler proceeded to discuss the reasons assigned by the President in his answer to the articles of impeachmen for the attempt to remove Mr. Stanton. These, in substance, were, that the President believed the Tenure-of-Office Act was unconstitutional, and, therefore, void and of no effect, and that he had the right to remove him and appoint another person in his place. Mr. Butler urged that, in all of these proceedings, the President professed to act upon the assumption that the act was valid, and that his action was in accordance with its provisions. He then went on to charge that the appointment of General Thomas as Secretary of War ad interim, was a separate violation of law. By the act of February 20, 1863, which repealed all previous laws inconsistent with it, the President was authorized, in case of the "death, resignation, absence from the seat of Government, or sickness of the head of an executive department," or in any other case where these officers could not perform their respective duties, to appoint the head of any other executive department to fulfill the duties of the office "until a successor be appointed, or until such absence or disability shall cease." Now, urged Mr. Butler, at the time of the appointment of General Thomas as Secretary of War ad interim, Mr. Stanton "had neither died nor resigned, was not sick nor absent," and, consequently, General Thomas, not being the head of a department, but only of a bureau of one of them, was not eligible to this appointment, and that, therefore, his appointment was illegal and void.

The ninth article of impeachment, wherein the President is charged with endeavoring to induce General Emory to take orders directly from himself, is dealt with in a rather slight manner. Mr. Butler says, "If the transaction set forth in this article stood alone, we might well admit that doubts might arise as to the sufficiency of the proof;" but, he adds, the surroundings are so pointed and significant as to leave no doubt in the mind of an impartial man as to the intents and purposes of the President"-these intents being, according to Mr. Butler, "to induce General Emory to take orders directly from himself, and thus to hinder the execution of the Civil Tenure Act, and to prevent Mr. Stanton from holding his office of Secretary of War."

As to the tenth article of impeachment, based upon various speeches of the President, Mr. Butler undertook to show that the reports of these speeches, as given in the article, were substantially correct; and accepted the issue made thereupon as to whether they are "decent and becoming the President of the United States, and do not tend to bring the office into ridicule and disgrace."

After having commented upon the eleventh and closing article, which charges the President with having denied the authority of

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the Thirty-ninth Congress, except so far as its acts were approved by him, Mr. Butler summed up the purport of the articles of impeachment in these words:

"The acts set out in the first eight articles are but the culmination of a series of wrongs, malfeasances, and usurpations committed by the respondent, and, therefore, need to be examined in the light of his precedent and concomitant acts to grasp their scope and design. The last three articles presented show the perversity and malignity with which he acted, so that the man as he is known may be clearly spread upon record, to be seen and known of all men hereafter. We have presented the facts in the constitutional manner; we have brought the criminal to your bar, and demand judgment for his so great crimes."

The remainder of Monday, and a portion of the following day, were devoted to the presentation of documentary evidence as to the proceedings involved in the order for the removal of Mr. Stanton and the appointment of General Thomas. The prosecution then introduced witnesses to testify to the interviews between Mr. Stanton and General Thomas. They then brought forward a witness to show that General Thomas had avowed his determination to take forcible possession of the War Office. To this Mr. Stanbery, for the defense, objected. The Chief Justice decided the testimony to be admissible. Thereupon Senator Drake took exception to the ruling, on the ground that this question should be decided by the Senatenot by the presiding officer. The Chief Justice averred that, in his judgment, it was his duty to decide, in the first instance, upon any question of evidence, and then, if any Senator desired, to submit the decision to the Senate. Upon this objection and appeal arose the first conflict in the Senate as to the powers of its presiding officer. Mr. Butler argued at length in favor of the exception. Alhough, in this case, the decision was in favor of the prosecution, le objected to the power of the presiding officer to make it. This point was argued at length by the managers for the impeachment, who denied the right of the Chief Justice to make such decision. It was then moved that the Senate retire for private consultation on this point. There was a tie vote-25 ayes and 25 nays. The Chief Justice gave his casting vote in favor of the motion for consultation. The Senate, by a vote of 31 to 19, sustained the Chief Justice, deciding that "the presiding officer may rule on all questions of evidence and on incidental questions, which decision will stand as the judgment of the Senate for decision, or he may, at his option in the first instance, submit any such question to a vote of the members of the Senate." In the further progress of the trial the Chief Justice, in most important cases, submitted the question directly to the Senate, without himself giving any decision. Next morning (April 1) Mr. Sumner offered a resolution to the effect that the Chief Justice, in giving a casting vote, "acted without authority of the Constitution of the United States." This was negatived by

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