cannot have been intended to make a rule for his case; and it is shown that it was not intended. This was plainly declared in debate by the conference committee, both in the Senate and in the House of Representatives, when the proviso was introduced and its effect explained. The meaning and effect of the proviso were then explained and understood to be that the only tenure of the Secretaries provided for by this law was a tenure to end with the term of service of the President by whom they were appointed, and as this new tenure could not include Mr. Stanton's case, it was here explicitly declared that it did not include it. . . .

I come now to the question of intent. Admitting that the President had no power under the law to issue the order to remove Mr. Stanton and appoint General Thomas Secretary for the Department of War ad interim, did he issue those orders with a manifest intent to violate the laws and "the Constitution of the United States," as charged in the articles, or did he issue them, as he says he did, with a view to have the constitutionality of the tenure-of-office act judicially decided?

It is apparent to my mind that the President thoroughly believed the tenure-of-office act to be unconstitutional and void. He was so advised by every member of his cabinet when the bill was presented to him for his approval in February, 1867. The managers on the part of the House of Representatives have put before us and made legal evidence in this case the message of the President to the Senate, dated December 12, 1867. In that message the President declared

That tenure-of-office law did not pass without notice. Like other acts it was sent to the President for approval. As is my custom, I submitted its consideration to my cabinet for their advice upon the question, whether I should approve it or not. It was a grave question of constitutional law, in which I would of course rely most upon the opinion of the Attorney General and of Mr. Stanton, who had once been Attorney General. Every member of my cabinet advised me that the proposed law was unconstitutional. All spoke without doubt or reservation, but Mr. Stanton's condemnation of the law was the most elaborate and emphatic. He referred to the

constitutional provisions, the debates in Congress - especially to the speech of Mr. Buchanan when a senator to the decisions of the Supreme Court, and to the usage from the beginning of the government through every successive administration, all concurring to establish the right of removal as vested by the Constitution in the President. To all these he added the weight of his own deliberate judgment, and advised me that it was my duty to defend the power of the President from usurpation and to veto the law. . . .

Here, then, we have the President advised by all of the members of his cabinet, including the Attorney General, whose duty it is made by law to give legal advice to him, including the Secretary for the Department of War, also an eminent lawyer and an Attorney General of the United States under a former administration, that the act of March 2, 1867, was unconstitutional and void, that the three members of the cabinet holding over from Mr. Lincoln's administration were not included within its provisions, and that it was desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained.

Now, when it is remembered that, according to Chief Justice Marshall, the act of 1789, creating the Department of War, was intentionally framed "so as to clearly imply the power of removal to be solely in the President," and that "as the bill passed into a law, it has ever been considered as a full expression of the sense of the legislature on this important part of the American Constitution;" when it is remembered that this construction has been acquiesced in and acted on by every President from Washington to Johnson, by the Supreme Court, by every Congress of the United States from the first that ever assembled under the Constitution down to the 39th; and when it is remembered that all of the President's cabinet and the most eminent counsellors within his reach advised him that the preceding Congresses, the past Presidents and statesmen, and Story and Kent and Thompson and Marshall were right in their construction of the Constitution, and the 39th Congress wrong, is it strange that he should doubt or dispute the constitutionality of the tenure-of-office act?

But all this is aside from the question whether Mr. Stanton's case is included in the provisions of that act. If it was not, as I think it clearly was not, then the question of intent is not in issue, for he did no unlawful act. If it was included, then I ask whether, in view of those facts, the President's guilty intent to do an unlawful act "shines with such a clear and certain light" as to justify, to require us to pronounce him guilty of a high constitutional crime or misdemeanor? . . .

It is not denied, I think, that the constitutional validity of this law could not be tested before the courts unless a case was made and presented to them. No such case could be made unless the President made a removal. That act of his would necessarily be the basis on which the case would rest. He is sworn to "preserve, protect, and defend the Constitution of the United States." He must defend it against all encroachments from whatever quarter. A question arose between the legislative and executive departments as to their relative powers in the matter of removals and appointments to office. That question was, Does the Constitution confer on the President the power which the tenure-of-office act seeks to take away? It was a question manifestly of construction and interpretation. The Constitution has provided a common arbiter in such cases of controversy - the Supreme Court of the United States. Before that tribunal can take jurisdiction a removal must be made. The President attempted to give the court jurisdiction in that way. For doing so he is impeached, and for the reason, as the managers say, that

He has no authority under the Constitution, or by any law, to enter into any schemes or plans for the purpose of testing the validity of the laws of the country, either judicially or otherwise.

If this be true, then if the two houses of Congress should pass by a two-thirds vote over the President's veto an act depriving the President of the right to exercise the pardoning power, and he should exercise that power nevertheless, or if he should exercise it only in a single case for the purpose of testing the constitutionality of the law, he would be guilty of

a high crime and misdemeanor and impeachable accordingly. The managers' theory establishes at once the complete supremacy of Congress over the other branches of government. I can give my assent to no such doctrine.

This was a punitive statute. It was directed against the President alone. It interfered with the prerogatives of his department as recognized from the foundation of the government. It wrested from him powers which, according to the legislative and judicial construction of 80 years, had been bestowed upon him by the Constitution itself. In my opinion it was not only proper, but it was his duty to cause the disputed question to be determined in the manner and by the tribunal established for such purposes. This government can only be preserved and the liberty of the people maintained by preserving intact the co-ordinate branches of it — legislative, executive, judicial — alike. I am no convert to any doctrine of the omnipotence of Congress. . . .

CHAPTER LXI

JUDICIAL INTERPRETATION OF THE FOURTEENTH

AMENDMENT

IN these notable cases, the Supreme Court was called upon to give an authoritative interpretation of the war amendments. Of the nationalizing tendency of the war, the Court was well aware; but it confessed to a great reluctance to obliterate the main features of the federal system. Believing that the Court had "always held with a steady and even hand the balance between State and Federal power," five of the nine judges agreed in giving a restrictive interpretation to the Fourteenth Amendment. The pertinent facts in the cases are stated in the opinion of the Court.

188. Slaughter-House Cases.1

Mr. Justice MILLER delivered the opinion of the Court:These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City LiveStock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State. . . .

The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court to review the judgment of the State court on those questions is clear and imperative.

The statute thus assailed as unconstitutional was passed March 8, 1869, and is entitled, "An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City LiveStock Landing and Slaughter-House Company."

1 Supreme Court of the United States, 1873. 16 Wallace, 36.