Issue in the Impeachment of the President (1868)

BY MANAGER BENJAMIN FRANKLIN BUTLER AND WILLIAM MAXWELL EVARTS

THE CHIEF JUSTICE. Senators, the Chief Justice . . . will . . . direct the Secretary to read the offer to prove, and will then submit the question directly to the Senate. . . .

The chief clerk read the offer, as follows:

We offer to prove that at the meetings of the cabinet at which Mr. Stanton was present, held while the tenure-of-civil-office bill was before the President for approval, the advice of the cabinet in regard to the same was asked by the President and given by the cabinet, and thereupon the question whether Mr. Stanton and the other Secretaries who had received their appointment from Mr. Lincoln were within the restrictions upon the President’s power of removal from office created by said act was considered, and the opinion expressed that the Secretaries appointed by Mr. Lincoln were not within such restrictions. . . .

The yeas and nays were ordered, and being taken resulted—yeas 22, nays 26. . . .

So the evidence proposed to be offered was decided to be inadmissible.

Mr. EVARTS, (to the witness.) Mr. Welles, at any of the cabinet meetings held between the time of the passage of the civil-tenure act and the removal of Mr. Stanton, did the subject of the public service as affected by the operation of that act come up for the consideration of the cabinet? . . .

The WITNESS. I answer yes.

By Mr. EVARTS:

Q. Was it considered repeatedly?

A. It was on two occasions, if not more.

Q. During those considerations and discussions was the question of the importance of having some determination judicial in its character of the constitutionality of this law considered?

Mr. Manager BUTLER. Stay a moment; we object. . . .

The CHIEF JUSTICE. If the question be objected to it will be reduced to writing. . . .

The offer was handed to the desk and read, as follows:

We offer to prove that at the cabinet meetings between the passage of the tenure-of-civil-office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton, upon occasions when the condition of the public service as affected by the operation of that bill came up for the consideration and advice of the cabinet, it was considered by the President and cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained.

Mr. Manager BUTLER. Mr. President and Senators, we, of the managers, object, and we should like to have this question determined in the minds of the senators upon this principle. We understand here that the determination of the Senate is, that cabinet discussions, of whatever nature, shall not be put in as a shield to the President. That I understand, for one, to be the broad principle upon which this class of questions stand and upon which the Senate has voted; and, therefore, these attempts to get around it, to get in by detail and at retail—if I may use that expression—evidence which in its wholesale character cannot be admitted, are simply tiring out and wearing out the patience of the Senate. I should like to have it settled, once for all, if it can be, whether the cabinet consultations upon any subject are to be a shield. Upon this particular offer, however, I will leave the matter with the Senate after a single suggestion.

It is offered to show that the cabinet consulted upon the desirability of getting up a case to test the constitutionality of the law. It is either material or immaterial. It might possibly be material in one view if they mean to say that they consulted upon getting up this case in the mode and manner that it is brought here, and only in that event could it be material. Does the question mean to ask if they consulted and agreed together to bring up this case in the form in which it has been done? If they agreed upon any other proceeding it is wholly immaterial; but if they agreed upon this case, then we are in this condition of things, that they propose to justify the President’s act by the advice of his subordinates, and substitute their opinion upon the legality of his action in this case for yours.

Senators, you passed this tenure-of-office act. That might have been done by inadvertence. The President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argument upon it. The President then removed Mr. Stanton, and presented its unconstitutionality again, and presented also the question whether Mr. Stanton was within it, and you, after solemn deliberation and argument, again decided that Mr. Stanton was within its provisions so as to be protected by it, and that the law was constitutional. Then he removed Mr. Stanton on the 21st of February, and presented the same question to you again; and again, after solemn argument, you decided that Mr. Stanton was within its provisions and that the law was constitutional. Now they offer to show the discussions of the cabinet upon its constitutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions—four times upon the constitutionality of the law, and twice upon its constitutionality and upon the fact that Mr. Stanton was within it. Is that testimony to be put in here? The proposition whether it was desirable to have this constitutional question raised is the one presented. If it was any other constitutional question in any other case, then it is wholly immaterial. If it is this case, then you are trying that question, and they propose to substitute the judgment of the cabinet for the judgment of the Senate.

Mr. EVARTS. . . . Now, senators, the proposition can be very briefly submitted to you.

By decisive determinations upon certain questions of evidence arising in this cause, you have decided that, at least, what in point of time is so near to this action of the President as may fairly import to show that in his action he was governed by a desire to raise a question for judicial determination, shall be admitted. About that there can be no question that the record will confirm my statement. Now, my present inquiry is to show that within this period, thus extensively and comprehensively named for the present, in his official duty and in his consultations concerning his official duty with the heads of departments, it became apparent that the operation of this taw raised embarrassments in the public service, and rendered it important as a practical matter that the re should be a determination concerning the constitutionality of the law, and that it was desirable that upon a proper case such a determination should be had. I submit the matter to the Senate with these observations. . . .

The question being taken by yeas and nays, resulted—yeas 19, nays 30. . . .

So the Senate ruled the offer to be inadmissible.

(Washington, 1868), I, 696–700 passim.