from office has been nothing more than the issuing of a formal order for that purpose by some officer having or claiming, as the accused now does, to have the power, and I cannot doubt but that the offense under the statute was complete the moment the order was served on Mr. Stanton. The Senate assuredly so thought, when in their resolution of February 21, page 148, they declared in answer to Mr. Johnson's message announcing that he had removed Mr. Stanton, “that under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim." It was that order of removal that the Senate thus condemned as being contrary to the Constitution and laws of the United States, not the legal and actual removal of the Secretary, for we held that he was in office, notwithstanding the order, holding in virtue of the Constitution and of the tenure-of-office act of March 2, 1867.

I think, therefore, the House of Representatives might properly and legally have charged Mr. Johnson with having "removed" Mr. Stanton, describing the offense in the language of the statute, instead of charging him with having unlawfully issued the order with intent to violate the act and the further intent to remove Mr. Stanton, as is done in the first article.

The first article may, in my opinion, and should, be regarded as charging that the accused actually committed the offense of a removal from office of Mr. Stanton; for his order and other acts, in proof, are, in the popular mind, all that is meant by the term removal" in the statute; and I therefore regard this article as framed directly upon the statute, charging that the accused removed Mr. Stanton contrary to it.

I add that, even without the statute, I look upon the act as a plain violation of the Constitution of the United States, a violation of his oath to take care that the laws be faith

fully executed, and therefore an impeachable offense. Committed under the grave circumstances in evidence, I need go no further to find him guilty of the highest crime and misdemeanor he can commit, for it is an undisguised attempt to subvert the legal, constitutional, and popular character of our Government-one which no true friend of the Government can wink at-a step toward autocracy and absolutism-an effort to strip the Senate of all effectual power over appointments to office, and carrying with itself, if unrebuked and unpunished, imminent danger of further fundamental changes toward corrup tion and despotism. The power of impeachment alone is left to the people to ward off the peril and to vindicate the popular character of their Government. Never, in my judgment, was there, in our country, an occasion so imperatively demanding its exercise.

But if the first article be regarded only as an attempt to commit the crime mentioned in the sixth section of the act, it is obviously sustainable by the rules of law. No principle is better settled than that an attempt-not, indeed, a mere intention not evinced by any act-but any act or endeavor to accomplish and bring about the commission of an offense, is itself a misdemeanor. Professor Greenleaf, in his excellent Treatise on Evidence, (vol. 8, p. 4,) lays down the principle, derived from numerous adjudged cases, that

"The attempt to commit a crime, though the crime be but a misdemeanor, is itself a misdemeanor. And to constitute such an attempt there must be an intent that the crime shall be committed by some one, and an act done in pursuance of that intent."

This doctrine is fully sustained by the following English and American cases:

Rex. vs. Meredith, 8 C. and P., 589; Rex. vs. Higgins, 2 E., 5, 17, 21; Commonwealth vs. Harrington, 3 Pick., 26; Rex vs. Vaughan, 4 Burr., 2494; State vs. Avery, 7 Conn., 266. Many other cases might be cited affirming the same salutary doctrine. Mr. Russell, in his Treatise on Crimes, (vol. 1, pp. 45, 46,)

lays down the same doctrine, and it is of daily application in the administration of justice.

Commenting upon and vindicating it from doubts and objections, Lord Kenyon said in one of the cases cited that he regarded a denial of it as a "slander upon the law."

Did, then, Mr. Johnson cherish the intention to turn Mr. Stanton out of office contrary to the provisions of the act? In his answer he tells us that he did, and that he issued the orders in question with that intent. The other acts of his, not evidenced in writing, prove the same thing. He entertained that intention, and did those acts, tending to and designed for that sole purpose, in order to remove Mr. Stanton from his office against his will and contrary to the plain commands of the law.

There can be but one conclusion. He incurred the guilt, and under the first article I therefore pronounce him guilty, whether the article be regarded as founded directly upon the statute or as charging the common-law misdemeanor of attempting to commit the statutory offense.

The second article of the impeachment charges the accused with having issued and delivered to General Thomas the order of February 21, authorizing and empowering him to act as Secretary of War ad interim, and directing him "immediately to enter upon the discharge of the duties pertaining to that office," there being no vacancy in the office.

This was too plainly to be debated, a “letter of authority" to Thomas, and an obvious violation of the sixth section of the tenure-ofoffice act. No one can doubt it. The section provides that the "making, signing, sealing, countersigning, or issuing of any" "letter of authority"-not conferring the office, but"for or in respect to any such appointment or employment, shall be deemed, and is hereby, declared to be a high misdemeanor."

This was an open, deliberate, undisguised commission of the offense; and if this statute is not totally void and inoperative for unconstitutionality, mere waste paper, the accused must be found guilty under this article.

The idea, so strongly pressed upon us by the counsel for the accused, that this letter of authority, as well as the order removing Mr. Stanton, are to be treated as innocent acts, on the pretence that they were done merely to obtain the decision of the Supreme Court as to the constitutionality of the statute, is out of place on this trial Nothwithstanding such intention, if it existed, the offense was nevertheless actually committed, and the sole issue the Senate has to try is whether it was in fact knowingly committed, not whether the motives that led to it were one thing or another. To excuse or justify the intelligent commission of an offense on the ground that the motive was good would be monstrous, indeed. It would be to set aside the whole penal code at once, and permit every bad man and many good men to be judges in their own case. Society could not exist under such a puerile and capricious system. Besides, this motive, which the evidence places rather in the light of an afterthought than a ruling design accompanying and coeval with his resolution to remove Mr. Stanton, was properly to be addressed to the House of Representatives in order to prevent the finding of the impeachment. It was, if of any weight at all, matter of mitigation and excuse for committing the offense, and naturally addressed itself to the discretion of that body upon the question whether upon the whole it was worth while to bring him to trial; for surely it has no tendency to prove that he did not knowingly and willfully commit the offense. We cannot, therefore, sitting in our judicial capacity and acting on our oath to decide "according to law," give this pretense any weight in determining the issue.

The House had the constitutional right to bring the accused before us for trial. We are to try him according to the law and the evi. dence which the law makes applicable; and the House and the people in whose behalf they come before us have a right to demand of us

that he shall be so tried; and our own oath makes it equally imperative upon us.

The third article charges that Mr. Johnson issued the order to General Thomas without authority of law while the Senate was in session, no vacancy having happened during the recess of the Senate, with intent to violate the Constitution of the United States.

This article distinctly raises the question whether, while the Senate is in session and not in recess, the President can lawfully under the Constitution appoint to an office without the advice and consent of the Senate.

I have already shown that under the naked Constitution he cannot do this, and that the attempt is a violation of his oath.

But the tenure-of-office act forbids it. by declaring in the first section that an officer appointed by and with the advice and consent of the Senate "shall be entitled to hold his office until a successor shall have been in like manner appointed and duly qualified.”

This provision of course renders Thomas's appointment unlawful, for there cannot be two incumbents lawfully in possession of the office of Secretary of War at the same time.

But it is sufficient under this article to say that the Constitution itself prohibited this appointment of Thomas, for the President could not make it during the session of the Senate without their advice and consent. It was a willful attempt to usurp the powers of the Senate, and therefore a gross violation of a high public duty attached to him by his oath of office, and a high crime tending toward and designed to accomplish a fundamental and dangerous revolution of the Gevernment in this respect.

The design here was to pass the office absolutely into the hands of Thomas for him to hold for an indefinite period of time, and independently, and to enable him to exercise all its functions as freely as if he had held a formal commission with the consent of the Senate; and the useless Latin phrase ad interim imparts to the act no qualification, and imposes no restraint on his powers. Under the then existing circumstances no temporary appointment could be made. There was no law whatever that provided for it. Mr. Stanton was not absent, but present in the office; he was not disabled by sickness, but was in full health; he had not resigned, but had refused to do so; he was not dead but alive. And it is impossible to see what magic significance was attached or could be attached to the words ad interim. If the appointment made Thomas Secretary of War, as the accused claims, then his tenure was at the President's pleasure, and he needed no confirmation, and was to hold until turned out by him; no law forbade it, and the Constitution, as construed by Mr. Johnson, allowed it.

I cannot, therefore, hesitate to find him guilty under the third article.

The fourth, fifth, sixth, and seventh articles charge substantially but one offense-that of conspiring with Thomas unlawfully to prevent Mr. Stanton from remaining in the office of Secretary of War and exercising its functions, and unlawfully to seize and get possession of the property of the United States in the office.

I think this corrupt and unlawful agreement between Mr. Johnson and Thomas is fully made out by the evidence. The averment of the means by which the object was to be accomplished, whether by force, fraud, or intimidation, is not material. It is the agreement entered into between them to do the unlawful act, to accomplish the forbidden end, that constitutes the crime. And it is not easy to see how this agreement could be more clearly proved. The delivery of the letter of authority to Thomas, and his acceptance of the same; the delivery to him of the order remov ing Mr. Stanton and the delivery thereof by Thomas to Mr. Stanton; the demand made by Thomas for possession; Mr. Stanton's peremptory refusal and order to Thomas to depart; his written order to Thomas forbidding him to issue any orders as Secretary of War; the

report of this demand and refusal and prohibitory order made by Thomas to Mr. Johnson, and the deliberate direction given by the latter after hearing this report from Thomas to "go and take charge of the office and perform its duties-all which things happened on the 21st of February-and the second and menacing demand for the office by Thomas on the next day, all show, as clearly as human conduct can show, that just such an agreement was entered into by the accused and Thomas.

And it is made perfectly clear by the evidence that, but for the resolute firmness of Mr. Stanton, that agreement would have been carried into complete performance, and all the public property belonging to the office seized and possessed by Thomas, a mere intruder. I therefore find the accused guilty under the fourth, fifth, sixth, and seventh articles of the impeachment.

The eighth article differs from the second and third only in the averment that the order appointing Thomas was issued "with intent unlawfully to control the disbursements of moneys appropriated for the military service and for the Department of War."

I think such an intention fully made out by the proofs. General Thomas himself swears in his direct examination (page 414) that when the accused appointed him he remarked that he (Mr. Johnson) was "determined to support the Constitution and laws." This was a very gratuitous, idle remark, unless it implied a design to do something unusual, some dash against the legislation of Congress, which he so much disliked, and was, of course, uttered with reference to the tenure-of-office act, which was the only means by which Mr. Stanton kept the place he then designed to give to Thomas. He was resolved to "support," &c., against this act, and the declaration was an invitation to Thomas to aid him in trampling on that statute.

On his cross-examination (page 432) General Thomas swears the President said in this interview, "I shall uphold the Constitution and the laws, and I expect you to do the same;" and adds. "I said, certainly, I would do it, and would obey his orders."

This, he says, was, as he supposes, "very. natural, speaking to his commander-in-chief."

I think not. To my mind, this strange colloquy, which could not have taken place but in pursuance of Johnson's unlawful and audacious design, a design well understood by Thomas, evinces unmistakably, on the part of Thomas, the supple and reckless spirit of a dependent and flatterer, ready and willing to obey the slightest signal of the hand that feeds him. It is an assurance to Johnson that he is his tool, and will obey his wishes in all things. Contrast this low sycophaney with the manly and soldierly demeanor of General Emory when he repelled the suggestion of Mr. Johnson that he should accept orders from him directly, and that the requirement of the act of 1863 to send them through the General of the Army was unconstitutional and contrary to the terms of his commission! The contrast is indeed striking. Thomas is already debauched and bows pliantly to the will of a master! and had he got possession of the War Office, no one can doubt for a moment that he would have disbursed the moneys of the Department in obedience to Johnson's orders. Of course, the employment of such a person would effectually subject the public moneys to the will of the employer; and there seems to be no other reason or motive for employing him except to give such control to the accused. He is not so ignorant as not to have foreseen, from all he heard and observed at that critical moment, that a military force would have to be employed and paid in order to carry out his design of ejecting Mr. Stanton and getting control of his office; and he claimed the right to control it in all respects. Such a provision naturally and necessarily suggested to his designing mind the acquisition of money to pay the expenses of the tremendous experiment he meditated; and I cannot doubt that the emi

ployment of Thomas, willing as he was to obey Mr. Johnson's orders, had in direct object the control of those moneys. I therefore find him guilty under the eighth article.

As to the ninth article, I do not think the proof sufficiently clear to justify me in saying that the accused pronounced the act of 1863, requiring him to transmit all orders through the General of the Army, unconstitutional, "with intent thereby to induce said Emory, in his official capacity as commander of the department of Washington, to violate the provisions of said act, and to take and receive, act upon and obey," the orders of Mr. Johnson not thus transmitted. The conduct of Mr. Johnson toward General Emory was highly censurable; but I do not think that particular intention is fully made out. The evidence raises a suspicion that such may have been the case, but is consistent with the supposition of the absence of such an intention, and the doubt must go to the benefit of the accused.

As to the tenth article, the evidence is conclusive that the accused made the popular harangues therein set forth. The essence of the charge is, that these discourses were "intended to set aside the rightful authority and powers of Congress, and to bring the Congress of the United States into disgrace, ridicule, hatred, contempt, and reproach, and to destroy the regard and respect of all the people of the United States for their authority."

Mr. Johnson was the lawful President of the United States; one of his sworn duties was to "take care that the laws be faithfully executed." The Thirty-Ninth Congress was a lawful Congress, as much so as any that ever sat. They were elected by exactly the same constituency who elected Mr. Johnson Vice President in 1864. Under their legislation the rebellion was put down, and Mr. Johnson himself, as military governor of Tennessee, had aided actively in carrying it out, and had had the benefit of the joint resolution of February, 1865, excluding from the count of electoral votes for President and Vice President those cast in certain of the States in rebellion. It did not, therefore, lie in his mouth to deny, directly or indirectly, that the Thirty-Ninth Congress was a valid, constitutional Congress. None but such as contended that the Government was broken up by the secession and rebellion of the eleven Statesthat is, none but a traitor could consistently and decently make such a declaration. And yet he says, in his 18th of August speech, (referred to in the first specification,) made in the Executive Mansion, and addressed to the honorable Senator from Maryland [Mr. JOHNSON] and others, and without rebuke or reply from that learned Senator, "We have seen hanging upon the verge of the Government, as it were, a body called, or which assumes to be, the Congress of the United States, while, in fact, it is a Congress of only a part of the States;" plainly intimating that that Congres had no power to pass laws for the govern ment of the rebel States, and were, in fact and in law, incompetent to legislate for the whole country; a doctrine that openly encouraged sedition and disobedience to the laws in at least those States, if not in all others-the laws which he alone, of all the people of the United States, was expressly bound by oath and the Constitution to see "faithfully executed."

Suppose a judge of a State court, charged with administering the laws, should go about among the people and tell them thus openly in public speech that the legislation of the State was no legislation-that their laws were all void, and that the citizens were not under obligation to obey them-would not the power of impeachment be at once brought to bear upon him? And why? Because, entertaining such opinions, he desecrates his office, and is therefore UNFIT longer to remain in it. Did we not sustain the impeachment against Judge Humphreys, of Tennessee, for that which was the exact equivalent of this charge, namely, inculcating in a public speech the right of secession from the Union and of rebellion?

What did he say, but that the Government of the United States was in law no Government for the seceded States? He had committed no act of treason, and the only proof was that he had thus spoken. And we convicted and removed him because he had thus spoken.

The second and third specifications contain like matter. The vulgar harangues therein recited are in denial of the legal constitutional validity of the statutes passed by the ThirtyNinth Congress, and tend directly to excite sedition and insubordination to, and disobedience of, those laws, the speaker being himself specially and solely charged by the Constitution with the official duty of taking care that those laws shall be “faithfully executed." He assumes a position in direct antagonism to his oath and his duty. He himself was setting the example of disobedience to the laws, and encouraging others to imitate his wicked example. Does the law impose no responsibility for wanton conduct like this? May a public magistrate deny, contemn, and deride the duties of his office with impunity? His counsel say yes. I say no. Society must be protected by law; and in order that that protection may exist the laws must be respected by those charged with their execution, not aspersed and trampled upon.

No question of the "freedom of speech" arises here. It is not because he speaks scoffingly and contemptuously of Congress as a body; not because he dissents from their legislation merely and expresses that dissent; not because he utters against them the false and malicious calumny that the New Orleans riot, which he calls "another rebellion," "had its origin in the radical Congress;" not because he descends to the low business of lying about and scandalizing them, that the House has preferred this article against him, but because he inculcates the idea that their statutes are no laws, and not to be respected by the people as laws, and because he openly threatens (in his St. Louis speech) to "kick them out; to kick them out just as fast as he can," thus distinctly conveying the threat to use revolutionary violence against that Congress and to disperse them. It was an open threat to commit treason. And yet his counsel tell us that it was innocent and harmless.

To my mind the tenth article charges one of the gravest offenses contained in the impeachment. The feelings of the whole country were shocked and disgusted by the lawless speeches of this bully President. Men and women all over the land hung their heads in shame, and the wise and reflecting saw in him a coarse, designing, and dangerous tyrant.

I vote him guilty under the tenth article, and under each of the three specifications.

As to the eleventh article, it charges in substance that he attempted to prevent the execution of the tenure-of-office act, by unlawfully devising means to prevent Mr. Stanton from resuming the functions of his office, and to prevent the execution of the said clause in the appropriation act of 1867, and the reconstruction act of March 2, 1867.

In finding him guilty under this whole article I only consult his official record, his official history, and the other facts clearly in proof. His whole policy has been that the reconstruction act was both improper and unconstitu tional, and he has detested the Thirty-Ninth and Fortieth Congresses, because they have been of an opposite opinion. This trouble has grown out of his determination to govern the rebel States by his executive decrees in defiance of the wishes of the people of the United States expressed through the legislation of Congress; in other words, to be himself the ruling power in this regard. This is usurpation and tyranny, and I think it ought to be thus met and branded. Our position as the first free nation of the world demands it at our hands; and whatever may chance to be the result of this trial, whatever may be the future fortunes of those who are now sitting in judgment, I can desire no better authenticated claim to the free and enlightened approval of

futare ages than that I gave my vote against him on this article; nor do I think myself capable of any act that would shed greater honor on my posterity than thus to endeavor to vindicate for them and their posterity the rights of a free and independent people governing themselves within the limits of their own free Constitution.

OPINION OF

HON. JAMES W. PATTERSON,

We have been brought to a new illustration and test of our institutions. The responsibility of the Chief Magistrate to the people and their power to remove him from his place, if faithless and treacherous to his high trusts, are on trial in the Senate. If before civil order is restored and the animosities of war allayed the temper of forty millions of people shall be self-controlled; if the currents of business are uninterrupted and society discharges its ordinary functions without disorder, as the case passes to its final issue of conviction or acquittal, it will not only prove the capacity of the people for self-government, but will reassure the strength and stability of the Republic. It will be a triumph of popular institutions which must unsettle the foundations of arbitrary power, and hasten the establishment of free governments.

The first of the articles exhibited by the House of Representatives against the Presi dent of the United States, charges a violation of the Constitution of the United States, and of an act regulating the tenure of certain civil offices, passed March 2, 1867, in the issuance of "" an order, in writing, for the removal of Edwin M. Stanton from the office of Secretary for the Department of War."

It is alleged that this was done contrary to the provisions of the Constitution, and with the intent to violate the act above named, and was, therefore, a high misdemeanor, for which he should be removed from office.

First, was it a violation of the Constitution? An unlimited power of removal from office cannot, I think, belong to the President by force of the Constitution. There certainly is no word in that instrument which confers any such authority directly. It says "the executive power shall be vested in a President of the United States of America," but that power is limited by the letter of the Constitution, and by direct grants of power to other departments of the Government. If the Executive possesses the right of removal in the case of officers appointed by the coördinate action of himself and the Senate, it must be by implication.

The Constitution says the President "shall nominate, and, by and with the advice and consent of the Senate, appoint," &c. Now, the right to remove cannot be drawn from the right to nominate, and if it comes from the right to appoint, then it exists conjointly in the Presi

dent and Senate.

There is an objection to this doctrine, how ever, more fundamental. We cannot by inference lodge in the President a power which would enable him to destroy another power vested expressly in the legislative branch of the Government. The Constitution coördinates the Senate with the President in the appointment of the higher officials. Hamilton, in speaking of this, says:

"It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the Administration."

But it will be readily seen that if the President has the right to remove and make "ad interim" appointments at pleasure, the coördinate function of the Senate in appointments may become a nullity, and the purpose of the Constitution be defeated. It destroys at one blow this great safeguard against usurpation and maladministration in the Executive.

Without delaying to discuss this subject further, I simply say, that to my mind a natural interpretation of the Constitution would give the appointing and removing power to the same parties.

But the acts of 1789 and 1795 gave a legislative construction adverse to this view, and whether these acts are repealed or not, if it can be shown that the President violated no law in the removal of Mr. Stanton it would be clearly unjust to impeach him for having conformed to a legislative construction of the Constitution unquestioned for fifty years against the views and wishes of the majority of Congress. So heavy a judgment should not fall upon the Chief Magistrate for having followed an exposition of the fundamental law, author. ized by solemn enactment, and supported by some of the ablest among the earlier statesmen of the Republic.

The second allegation in the article is a violation of law in the removal of Mr. Stanton. The respondent urges a threefold defense against this charge:

First. That the non-execution of the act of March 2, 1867, "regulating the tenure of certain civil offices," was not a breach of executive trusts, as the law was unconstitutional and void.

Second. That a denial of the validity of the act and an intentional disregard of its provis ions in order to bring the statute into court and test its constitutionality is not an impeachable offense.

Third. That the language of the statute does not include Mr. Stanton, and hence his removal was no violation of law.

Whether the President had or had not a constitutional right to remove at pleasure officers confirmed by the Senate was the theme of the great debate in 1789 upon the establishment of the State Department. It was purely a question of interpretation, and was argued upon both sides by lawyers of unsurpassed ability. Even the great statesmen who had been master spirits in the constitutional Convention, and whose genius had passed largely into the framework of the Government, entered the lists and battled earnestly on either side. When the Constitution was before the State conventions for adoption the Federalist expressly denied this right to the Executive, but the Congress of 1789 reversed that interpretation which had received the popular approval by a close vote of thirty-four to twenty in the House and by the casting vote of the Vice President in the Senate. It is believed that the character of Washington, then Chief Magistrate, largely influenced the result, and statesmen as patriotic and enlightened as any who took part in the deliberations of the First Congress have since deprecated a construction which they believe a hazardous and unwarranted change of the Constitution.

In 1835, a committee of Congress, composed of such men as Calhoun, Webster, and Benton, reported a bill designed to limit the abuse of executive patronage, and requiring the Presi dent in all cases of removal to state the reasons thereof. In the debate, Mr. Clay spoke as follows:

"It is legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the Constitution, but the law. The office coming into existence by the will of Congress, the same will may provide how and in what manner the office and officer shall cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed.

*

"It would be unreasonable to contend that, although Congress, in pursuance of the public good, brings the office and the officer into being, and assign their purposes, yet the President has a control over the officer which Congress cannot reach and regulate." "The precedent of 1789 was established in the House of Representatives against the opinion of a large and able minority, and in the Senate by the casting vote of the Vice President, John Adams. It is impossible to read the debate which it occasioned without being impressed with the conviction that the just confidence reposed in the Father of his Country, then at the head of the Government, had great, if not decisive, influence in establishing it. It has never, prior to the commencement of the present administration, been submitted to the process of review." "No one can

*

carefully examine the debate in the House of Repre sentatives in 1789 without being struck with the superiority of the argument on the side of the minority, and the unsatisfactory nature of that of the majority." The language of Mr. Webster was not less explicit or emphatic:

"I think, then, sir, that the power of appointment naturally and necessarily includes the power of removal, where no limitation is expressed, nor any tenure but that at will declared. The power of appointment being conferred on the President and Senit, and should have been regarded as a part of it and ate, I think the power of removal went along with

exercised by the same hands. I think the Legislature possesses the power of regulating the condition, duration, qualification, and tenure of office in all cases where the Constitution has made no express

provision on the subject. I am, therefore, of opinion that it is competent for Congress to decide by law, as one qualification of the tenure of office, that the incumbent shall remain in place till the President shall remove him, for reasons to be stated to the Senate. And I am of opinion that this qualification, mild and gentle as it is, will have some effect in arresting the evils which beset the progress of the Government and seriously threaten its future prosperity."

寧

"After considering the question again and again within the last six years, I am willing to say that, in my deliberate judgment, the original decision was wrong. I cannot but think that those who denied the power of 1789 had the best of the argument. It appears to me, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution in this respect by the decision of the First Congress."

"I have the clearest conviction that they [the Convention] looked to no other mode of displacing an officer than by impeachment or the regular appointment of another person to the same place."

"I believe it to be within the just power of Congress to reverse the decision of 1789, and I mean to hold myself at liberty to act hereafter upon that question as the safety of the Government and of the Constitution may require."

Mr. Calhoun and Mr. Ewing were equally positive in their advocacy of the bill, and Marshall, Kent, and Story seem to have entertained similar views in respect to the original intent of the Constitution.

But there has been a conflict of legislative constructions as well as of individual opinions upon this subject. Subsequent Congresses have claimed and exercised, without the obstruction of an executive veto, the power to regulate the tenure of office, both civil and military.

law of February 25, 1863, provides that the Comptroller of the Currency "shall hold his office for the term of five years unless sooner removed by the President by and with the advice and consent of the Senate."

By section five of an act of July 13, 1866, it is provided that

"No officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial, to that effect or in commutation thereof."

These are late acts, but they are only instances of other similar acts scattered through our statutes, whose validity has never been questioned. There is, therefore, no decision of the Supreme Court or settled precedent of legislation which can bar the right of Congress to regulate by law both appointments to and removals from office. Never until now, so far as I know, has the right been questioned. Whatever differences of opinion legislators may have entertained in respect to the original grant of power, all have acquiesced in the exercise of legisla tive authority over the tenure of office.

Hence the claim of the President of a judicial right to settle ex cathedra the constitutionality of a law upon this subject is inadmissible and subversive of the powers and independence of a coördinate branch of the Government. In a clear case of a legislative usurpation of his constitutional prerogatives, such as would occur in an effort to destroy his veto or pardoning power, he might be justified in treating the act as a nullity, but not when Congress moves in the path of authoritative precedents, and where, at most, only a doubt can be raised against its original right of its jurisdiction.

At an earlier period I apprehend such a claim would not have been advanced. Civil war naturally tends to concentrate power in the chief who administers it. Forces and resources must be at his disposal. Defeat waitt upon the commander who is hampered by the

forms and delays of law. His authority is nothing if not supreme. The laws of war are swift and absolute and can recognize no personal rights, no claims of Magna Charta. Active warfare necessarily encroaches upon the domain of legislation, and familiarizes the Executive with a use of authority hazardous in a time of peace.

Power once possessed is soon felt to be a right and is yielded with reluctance. Our experience has added another example to the long record of history. The President's defense denies the supremacy of law and is more dangerous to the Government than the alleged crime which has brought him to the bar of the Senate. If he can determine the validity of law, the Supreme Court is an empty mockery. No act can pass his veto, and all legislation may be subverted at pleasure. The right to substitute the judgment of the ruler for the judgment of the people and to override their laws by his will is absolutism. If the plea is good, it is a valid defense for unlimited usurp

ation.

The plea of the President that he removed Mr. Stanton for the purpose of securing a decision of the court upon the constitutionality of the law is equally untenable as a ground of defense. It is inconsistent with the answer which he made by his counsel, that he effected the removal in the exercise of an executive power of which Congress could not deprive him, "because satisfied that he could not allow the said Stanton to continue to hold the office of Secretary of the Department of War without hazard of the public interests." It is irreconcilable with the further answer that "in his capacity of President of the United States" he" did form the opinion that the case of the said Stanton and his tenure of office were not affected by the first section of the last named act," referring thereby to the tenure-of-office

act.

But, passing over the contradictory nature of this defense, we submit that the evidence shows an anxious and persistent effort to get possession of the War Office, and not a purpose to have the law adjudicated. If to test the law had been his desire, he should have sued out a writ of "quo warranto" on the refusal of Stanton to obey his order of removal. Instead of that, he not only endeavored to keep him out of office by an unworthy trick when we had annulled his suspension, but issued a letter of absolute removal in the face of Congress after it had rejected his judicial opinion of the constitutionality of the law, and had passed it by a two-thirds vote over his veto. After it had reaffirmed the validity of its action and the invalidity of his on this very subject, and assuming that the removal had been effected, he issued a letter of authority to fill the vacancy. To crown the effrontery he nominates General Scofield to the vacant Secretaryship, while urging upon the Senate his acquittal on the ground that the removal was not effected, but only attempted. Thus duplicity is made the proof of innocence. Having put the case into a condition in which he could not sue ont a writ of quo warranto, I deny that he can honestly plead a desire to test

the law. He knew full well if Stanton was not in the law he could not test it by his removal. This defense is clearly an afterthought. Having recognized the validity of the law by conforming all commissions to its provisions; having suspended Mr. Stanton and appointed General Grant under it; having notified the Secretary of the Treasury of the change, to wit, as follows:

"SIR: In compliance with the requirements of the act entitled "An act to regulate the tenure of certain civil offices,' you are hereby notified that on the 12th instant Hon. Edwin M. Stanton was suspended from his office as Secretary of War, and General U. S. Grant authorized and empowered to act as Secretary of War ad interim"

and having afterward transmitted a message to the Senate giving the reasons for the suspension, as required by the act, he cannot, without criminality, under the pretext of seeking a judicial decision, set aside or trample

upon the law at the point where it baffled his cherished political policy and curbed a career which the law-makers believed dangerous to the peace and liberties of the country. If regard for the Constitution, and not a desire to get control of the Army, had been his purpose, why did he not test the law in the first instance when called upon to execute it, and when his motive would have been simple and unquestioned? Facts show that it was not the nature but the effect of the law which troubled the President.

The enactment was designed to circumscribe and limit his power, lest he should abuse it to the injury of the country. It was effective; and when it arrested the execution of his policy, regardless alike of his oath and the wishes of the nation, he defiantly violated the law to remove the man who was a trammel upon his will.

The evidence demonstrates a purpose to get possession of the Department of War, and disproves the pretense that he was seeking a judicial decision upon the constitutionality of the law.

Finally, was Mr. Stanton's removal a violation of the act entitled "An act regulating the tenure of certain civil offices."

The purpose of the law was to hold in office men whom the policy of Mr. Johnson threatened to remove. It is both claimed and denied that the Secretary of War who held a commission under President Lincoln is protected by the law. The true construction must be drawn from the letter of the statute itself, and not from any conflicting opinions expressed in debate at the time of its passage.

The first section of the act reads as follows: "That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General, shall hold their offices respectively for and 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."

It will be observed that the body of the section includes all persons who have been or who shall be appointed to civil office by and with the advice and consent of the Senate, "except as herein otherwise provided."

This last clause which I have quoted was in the bill before the committee of conference, who added the proviso, was appointed, and undoubtedly refers to officers mentioned in the fourth section whose term is limited by law. The Secretaries were not of this number, and the effect of the proviso which was added by the conferees was simply to limit their time to the term of the President under whom they

serve and one month thereafter.

The meaning of the section clearly is that every civil officer who has been confirmed by the Senate shall hold his office until the Senate shall confirm a successor, but provides that such officers as hold a term limited by law

shall lose their office by the expiration of their term without the action of the Senate. The only effect of the proviso is to bring the heads of Departments into this last class of officers whose terms are limited by law. The intent and effect of the law is to take the removal of every officer confirmed by the Senate out of the pleasure of the President; and it is a perversion of language to say that the proviso places the tenure of the Secretary of War, or of any other Secretary, at the option of the President. They are all removable by the confirmation of a successor or by the expiration of their term.

It has been said that the proviso brings the office of Secretary of War out of the body of the section into itself, but that the clause which provides that the Secretaries "shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter,"

excludes Mr. Stanton from it because he was not appointed by Mr. Johnson.

The office could not be taken out of the body of the section unless it was first in it, and if there, the Secretary was there also. If, now, the office of Secretary of War is brought into the proviso, and Mr. Stanton excluded, he is left in the section and covered by its provis ions. If not there, to what limbo have the gods assigned him?

The conception of a Secretary of War without an office is worthy of a lawyer without a brief. The argument is a pure creation, and a miserable fallacy at that. The language of the section is in relation to persons, not offices. It says, every person holding any civil office shall be entitled to hold," &c.; "the Secretaries, &c., shall hold their offices," &c. The construction of the section is simple and unmis takable. There are certain officers referred to in the fourth section whose terms are limited by law, and the proviso adds the heads of Departments to this number, but the terms of

the law allow no officer to be removed who has been appointed by and with the advice and consent of the Senate, except by the appointment of a successor in the same way.

The language of the proviso itself is, that the Secretaries are "subject to removal by and with the advice and consent of the Senate." If, therefore, Mr. Stanton is not in the proviso, he is in the body of the section, and the law was violated by his removal. I will not stay to inquire in whose term he was holding, for the argument is perfect without it.

This is not all. The President violated the second as well as the first section of the law. It reads as follows:

"That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of miscon duct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer," &c.

If, now, the President can suspend an offi cer during the recess only, and that for the reasons specified in the law and no other, can he remove him outright during the session of the Senate, and when he is free from all the legal disqualifications enumerated in the act?

The act further provides, in respect to a suspension, that—

"If the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office," &c.

The Senate refused to concur in the suspension of Mr. Stanton, refused to advise and conhim in defiance of the letter of the act and of sent to his removal, but the President removed for legal sophistries can torture that act of the the will of the Senate. No amount of genius President into anything less than a willful violation of law. This simple statement of the case without argument is sufficient to command the approval of every mind.

Counsel must have forgotten that the Senate,

acting under the solemnity of an oath, had repeatedly decided that the law applied to Mr. Stanton. On the 12th of December the Senate, remembering that the "tenure-of-office act" was passed expressly to protect officers whose retention was thought indispensable to the public service against an abuse of executive ful appeal of the Senator from Maine, refused power, and moved by the eloquent and powertheir assent to the removal of Mr. Stanton, which they had no right to do, or even act upon at all, unless he was covered by the law of March 2, 1867.

Again, on the 21st of February, when the President failed in his attempt to prevent the return of the Secretary by the use of General Grant, informed this body of his absolute dismissal, it was resolved by the Senate

"That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim.”

With such action upon our records we have a right to assume that argument upon this is foreclosed, and that Senators who took part with the majority in those transactions will sustain the construction which they helped to establish, and upon which the conduct of the Secretary is based.

It

We are brought next to consider the charges as stated in the second and third articles. is alleged that the appointment of Lorenzo Thomas as Secretary of War "ad interim," was a high misdemeanor, being made without law, and in violation of both law and the Constitution. The provision of the Constitution is, that

"The President shall have power to fill up all vacancies that may happen [not such as he may make] during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

to

make "ad interim" appointments during the session of the Senate, but, by necessary inference, denies it, by expressly granting the power for the recess only. Hence, to fill a vacancy in this way, while the Senate is in session and ready to provide for any emergency, is, in the absence of positive law authorizing it, a clear violation of the Constitution. The guilt was in this case enhanced by an attempt to fill an office which the respondent himself claims has never been vacated.

But the President is equally unfortunate in his appeal to law. The act of 1789 makes no provision for "ad interim" appointments. That of May 2, 1792, authorizes temporary appointments in case of death, absence, or sickness, but not for vacancies created by removal. That of February 13, 1795, allows the President to appoint for six months, "in case of vacancy, whereby the Secretaries or any officer in any of the Departments cannot perform the duties of his office."

The construction of this act is somewhat obscure and doubtful. It applies to such vacancies of office as are occasioned by the inability of the officer to "perform the duties of his office." An officer removed cannot perform the duties of his office, it is true, but the natural implication of the language runs pari passu with that of 1792, confining it to such vacancies as occur from death, absence, or sickness. But if we give it the broadest application, and cover all vacancies, the limitation of six months placed upon the temporary appointments which it authorizes is designed clearly to cover the interim between the sessions of Congress, and recognizes the hitherto unbroken practice of the Executive to create and fill vacancies only during the recess of the Senate. I conclude, therefore, it was not designed to authorize by this act an appointment like that of General Thomas.

The act of February 20, 1863, fails equally to provide for this case.

But even if these statutes by a proper construction covered the action of the President, he cannot use them, for they have been swept away by the tenure-of-office act, and he is remitted to its provisions alone, which explicitly prohibited any such appointment.

If the first and second sections take from him, as I have argued, the right to remove Stanton, then there was no vacancy, and the appointment of Thomas was made "contrary to the provisions of this act," and was by the sixth section of the same a high misdemeanor.

It has been urged that the last clause of the third section empowers the President to make such an appointment, but an examination of the section shows this to be a perversion. It simply provides that in case the Senate shall fail to fill a vacancy which has occurred by death or resignation during the recess of the same, such officers as may by law exercise such powers and duties shall exercise all the powers and duties belonging to such office so vacant, but that "such office shall remain in abeyance with out any salary, fees, or emoluments attached thereto, until the same shall be filled by appoint

ment thereto by and with the advice and consent of the Senate."

The

General Thomas was not so appointed. law cannot possibly be stretched to cover and justify his case.

Equally fallacious is the interpretation which has been given to the eighth section. This simply makes it the duty of the President to notify the Secretary of the Treasury whenever he shall have "designated, authorized or employed any person to perform the duties of any office" temporarily vacated, as designated in the third article.

This is the whole extent of its meaning, and

it cannot be so tortured as to authorize an

"ad interim" appointment made during the session of the Senate.

I conclude, therefore, that the President hav ing violated the act of March 2, 1867, as alleged in the first, second, and third articles, is guilty of a high mosden, sich,

Of the fourth, sixth, seventh, and ninth articles, I need not speak, as the trial failed entirely, to my apprehension, in establishing the allegations therein set forth by any substantial proof. No satisfactory evidence was presented to my mind of a conspiracy as alleged in either of the articles. In this I think the House entirely failed to make good their charges.

66

The fifth article charges that the President conspired with Lorenzo Thomas and others to 'prevent and hinder the execution of an act entitled 'An act regulating the tenure of certain civil offices,' and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton" from holding the office of Secretary of War. That there was an understanding between the President and Thomas that the latter was to be substituted for Stanton in the office of Secretary of War, in disregard of the act of March 2, 1867, is clear, but that there was any concert to use force to bring it about does not appear from the evidence.

The eighth article charges upon Andrew Johnson a high misdemeanor, in that he issued a letter of authority to Lorenzo Thomas, transferring to him the office of Secretary for the Department of War, in violation of law, when there was no vacancy in said office, and when the Senate was in session, with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War.

I have already given my opinion upon the issuance of the letter to Thomas in what I have said in respect to the second and third articles. That a control of the money appropriated for the military service and the Department of War was a principal motive for securing the place of Mr. Stanton is self-evident, for without it the office could not be administered, and would be a vain and useless shadow of power. I do not see that this article adds anything new, for the gravamen of the charge is involved in the third article. The final judgment upon this must be the same as upon that.

The facts alleged in the tenth article are known and read of all men, and are not denied by the respondent. That the speeches referred to in this article were "slanderous harangues," showing not only a want of culture, but the entire absence of good sense, good taste, or good temper, nobody can deny. But in view of the liberty of speech which our laws authorize, in view of the culpable license of speech which is practiced and allowed in other branches of the Government, I doubt if we can at present make low and scurrilous speeches a ground of impeachment. I say this in sorrow, and not in any spirit of palliation, for the speeches referred to in the charges were infamous and blasphemous, and could not have been uttered by any man worthy to hold the exalted position of Chief Magistrate of an intelligent and virtuous people. Personal decency should be deemed essential to high official responsibility in this Republic, but it must be secured by a public sentiment which shall exact virtue rather than availability in those whom it advances to the great trusts of society. When we reflect

how essential to national welfare and human progress is that liberty of speech which we have inherited, and how readily a restriction upon its abuse may turn to an abuse upon its restriction, we hesitate to inflict a merited penalty upon this prominent offender. We deem it safer to"Bear those ills we have,

Than fly to others that we know not of."

There are four distinct allegations in the eleventh article. The first relates to the President's misrepresentations of Congress in public speech, and has already been reviewed in considering the tenth article.

The second charges a violation of "an act regulating the tenure of certain civil offices," by unlawfully devising and contriving, and attempting to devise and contrive, means to prevent Mr. Stanton from resuming his office of Secretary of War after the Senate had refused to concur in his suspension. This is a charge not mentioned in any preceding article, and its proof is unequivocal and satisfactory.

The attempt was made through General Grant, and the President's letter of reproof to that distinguished citizen for defeating his wicked purpose by refusing to participate with him in a premeditated breach of law and contempt of the Senate, is the impregnable demonstration of the allegation. The following is the language of his letter:

"You had found in our first conference that the President was desirous of keeping Mr. Stanton out of office, whether sustained in the suspension or not.' You knew what reasons had induced the President to ask from you a promise; you also knew that in case your views of duty did not accord with his own convictions it was his purpose to fill your place by another appointment. Even ignoring the existence of a positive understanding between us, these conclusions were plainly deducible from our various conversations. It is certain, however, that even under these circumstances you did not offer to return the place to my possession, but, according to your own statement, placed yourself in a position where, could I have anticipated your action, I would have been compelled to ask of you, as I was compelled to ask of your predecessor in the War Department, a letter of resignation, or else to resort to the more disagreeable expedient of suspending you by a successor."

The third and fourth allegations of this arti cle do not seem to have received that attention which their importance would justify. The evidence upon the records by which they are supported is very slight. I have been the more surprised at this inasmuch as the last sets forth that the President attempted to prevent the execution of the act entitled "An act to provide for the more efficient government of the rebel States." This I have deemed the primum mobile which has impelled the entire policy of the Executive.

All

This has been the motive of all our exceptional legislation; this has prolonged and multiplied our sessions; this has distracted business, and protracted the unrest of society, and this will be the crowning infamy of an Adminstration inaugurated by assassination. these willful violations of law have drawn their inspiration from this fell intent. If they had been only technical and inadvertent lapses or had resulted from misapprehension they might be pardoned, but being specimens from a flagrant catalogue of persistent law-breaking public safety demands a resort to constitutional remedies.

There may be wise and patriotic men who fear lest conviction should impress a habit of instability upon our institutions and unsettle ithe foundations of society. No statesman should be censured for a prudent forecast, but he should not hesitate to use the means which the experience of ages has shown to be essential safeguards of popular rights. The English ministry retire with every defeat, and these frequent changes of administration strengthen rather than weaken the Government. A people careless and not over-jealous of their rights are in danger of overthrow. History teaches that great wars enhance the powers of the Executive at the expense of popular rights, and that powers once exercised are likely to be held as an inalienable prerogative. We are