tive authority. Nearly all the duties of heads of departments are by law required to be performed "as the President of the United States shall from time to time direct." They are rarely prescribed by law. This is especially so as to the Secretary of War, who issues all orders "by command of the President," and by virtue of his office is invested by law with less power than an accounting officer. His duty prescribed by the Constitution is to give his opinion in writing when called for by the President. His prescribed legal duty is to make requisitions upon the Secretary of the Treasury for the service of the army. All his other duties rest upon the discretion, order, and command of the President. As the President is responsible for the acts of heads of departments, as they exercise a part of his executive authority, as their duties are not defined by law, as is the case with most civil officers, it was deemed unwise to take from the Presidential office the power to remove such heads of departments as did not possess his confidence. After debate the motion to strike out the excep tion was lost without a division. At a subsequent stage of the bill the motion was renewed and was lost by the decisive vote of 13 yeas and 27 nays, and the bill was then passed.

In the House of Representatives the motion to strike out the exception was made and lost, but was subsequently reconsidered, and the motion was carried, and with this amendment the bill passed the House.

The question again came before the Senate upon a motion to concur with the House in striking out the exception of the heads of departments, and was fully debated, and again the Senate refused to concur with this amendment by a vote of 17 yeas to 28 nays. In this condition the disagreement between the two houses came before a committee of conference, where it was the bounden duty of the conferees to maintain as far as possible the view taken by their respective houses. The usual course in such a case, where the disagreement does not extend to the whole of the bill, or to the principle upon which it is founded, is to report an agreement upon so much as has been concurred in by both houses, thus limiting the change in existing law to those provisions which meet the concurrence of both houses; therefore, the Senate conferces might properly have declined to extend the change of the law beyond the vote of the Senate, and certainly would not have been justified in agreeing to a proposition_thrice defeated by the vote of the Senate. The difference between the two houses was confined to the sole question whether that bill should regulate the tenure of office of the heads of departments. The Senate left them subject to removal at the pleasure of the President. The House secured their tenure subject to removal only at the pleasure of the Senate. After a long conference, the act as it now stands was reported. The first section is 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 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.

What is a fair and legal construction of this section? First. That the tenure of civil offices generally should be left as in the original bill, but a special provision should be made for the tenure of heads of departments. Second. That the President appointing a head of a department should not, during his term, without the consent of the Senate, remove him. Third. That after thirty days from the expiration of the term of the President who appointed a head of a department, the office of the latter would expire by limitation. To this extent, and to this extent alone, did the Senate conferees agree to change the existing law. The general clause prohibiting removals of civil officers is confined to

those who have been appointed by and with the advice and consent of the Senate. The special clause prohibiting removals of cabinet officers is that those who have been appointed by a President during his term shall not be removed without the consent of the Senate.

The distinction is kept up between heads of departments and other civil officers, and the only limitation upon the power of the President already conferred by law, is, that having appointed such an officer he shall not remove him during his term, without the advice and consent of the Senate. In all other respects the law of 1789 remains unaltered.

Was, then, Mr. Stanton appointed by the President during his term of office? If not, he holds his office under his original commission and tenure, and not under this act. If he is included in this act its effect is to declare his office vacant April 4, 1865, for that was thirty days after the expiration of the term of the President who appointed him. No such abserd purpose was intended. The plain purpose was to leave him to stand upon his then tenure and commission and to allow each President for each term to appoint his heads of departments, with the consent of the Senate, and to secure them in their tenure during that term and thirty days thereafter, unless the Senate sooner consented to their removal. If the purpose was to protect Mr. Stanton against removal why select the language that excludes him? He was not appointed by this President, nor during this presidential term. How easy, if such was the purpose, to say that "heads of departments holding office or hereafter appointed should hold their offices, &c." To hold that the words inserted were intended to warn the President not to remove Mr. Stanton upon peril of being convicted of a high misdemeanor, is to punish the President as a criminal for the violation of a delphic oracle. It impugnes the capacity of the conferees to express a plain idea in plain words.

I can only say, as one of the Senate conferees under the solemn obligations that now rest upon us in construing this act, that I did not understand it to include members of the cabinet not appointed by the President, and that it was with extreme reluctance and only to secure the passage of the bill that, in the face of the votes of the Senate I agreed to the report limiting at all the power of the President to remove heads of departments. What I stated to the Senate is shown by your records. One of your conferees (Mr. Buckalew) refused to agree to the report. Another (Mr. Williams) thought that a case of a cabinet officer refusing to resign when requested by the President was not likely to occur. I stated explicitly that the act as reported did not protect from removal the members of the cabinet appointed by Mr. Lincoln, that President Johnson might remove them at his pleasure; and I named the Secretary of War as one that might be removed. I yielded the opinion of the Senate that no limitation should be made upon the power of the Preident to remove heads of departments solely to secure the passage of the bill. I could not conceive a case where the Senate would require the President to perform his great executive office upon the advice and through heads of departments personally obnoxious to him, and whom he had not appointed, and, therefore, no such case was provided for. You did not expressly assent to this construction, but you did not dissent. If either you had dissented I leave to each senator to say whether in the face of his previous vote he would have approved the report. This construction of the law, made when this proceeding could not have been contemplated, when the President and each member of his cabinet were supposed to believe the act unconstitutional, made here in the Senate as an explanation for my yielding so much of your opinions, is binding upon no one but myself. But can I, who made it and declared it to you, and still believe it to be the true and legal interpretation of those words, can I pronounce the President guilty of crime, and by that vote aid to remove him from his high office for doing what I declared and still believe he had a legal right to do. God forbid!

of

A Roman emperor attained immortal infamy by posting his laws above the reach of the people and then punishing their violation as a crime. An American senator would excel this refinement of tyranny, if, when passing a law, he declared an act to be innocent, and then as a judge punished the same act as a crime. For this reason I could not vote for the resolution of the 21st of February, and cannot say guilty" to these articles.

What the President did do in the removal of Mr. Stanton he did under a power which you repeatedly refused to take from the office of the Presidenta power that has been held by that officer since the formation of the government, and is now limited only by the words of an act, the literal construction of which does not include Mr. Stanton. This construction was put upon the act by the cabinet when it was pending for the approval of the President. In my judgment it is not shaken by the ingenious arguments of the managers.

The original exception was in the body of the section, it was inserted by the conferees in a modified form, as a proviso at the close of the section. The first clause relates to all civil officers, except heads of departments. The second clause relates to heads of departments and no other officers. The first clause expressly excepts the officers named in the proviso, and also those described in the fourth section. To consider both classes of officers as within both clauses of the section is, it seems to me, an unnatural and forced construction of language, and certainly, when construed on a criminal trial, is too doubtful upon which to base criminal guilt.

It follows, that as Mr. Stanton is not protected by the tenure-of-civil-office act, his removal rests upon the act of 1789, and he, according to the terms of that act and of the commission held by him, and in compliance with the numerous precedents cited in this cause, was lawfully removed by the President, and his removal not being contrary to the provisions of the act of March 2, 1867, the 1st, 4th, 5th, and 6th articles, based upon his removal, must fail.

The only question remaining in the first eight articles is whether the appointment of General Thomas as Secretary of War ad interim, as charged in the 2d, 3d, 7th, and 8th articles is in violation of the Constitution and the laws, and comes within the penal clauses of the tenure-of-office act, and was done with the intent alleged, if so, the President is guilty upon these articles. This depends upon the construction of the clauses of the Constitution already quoted and of the several acts approved February 13, 1795, February 20, 1863, and the tenure-of-office act.

Under the Constitution no appointment can be made by the President during the session of the Senate, except by and with the advice and consent of the Senate, unless of such inferior officers as Congress may by law invest in the President alone.

By the act of February 13, 1795, it is provided—

That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices; it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed, or such vacancy be filled. Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months.

it,

A grave question might arise whether this act is constitutional; whether the head of a department is an officer whose appointment even for a time might be delegated to the President alone during the session of the Senate. Its existence unrepealed would relieve the President from all criminal fault in acting upon but it is in derogation of the plain constitutional right of the Senate to partici pate in all important appointments, and if abused would utterly destroy their power. This act applied only to the three departments then existing, and was only intended to apply to vacancies existing, and not to vacancies to be made.

Its sole purpose was to provide for a temporary vacancy until the constitutional mode of appointment could be exercised, and could not infringe upon or impair the right of the Senate to participate in appointments. In the Statutes at Large it is designated as "obsolete," and is, in fact, superseded by the act approved February 20, 1863-volume 12, page 656. This act in its title shows its plain object and purpose. It is entitled "An act temporarily to supply vacancies in the executive departments in certain cases.'

It provides

That in case of the death, resignation, absence from the seat of government, or sickness of the head of any executive department of the government, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize the head of any other executive department, or other officer in either of said departments, whose appointment is vested in the President, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months.

SEC. 2. And be it further enacted, That all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.

This act, together with the clause of the Constitution providing for vacancies during the the recess provides for all cases of vacancy except the one of removal during the session of the Senate, and that is left to be exercised as a part of the constitutional power of appointment by and with the advice and consent of the Senate. This act is complete in itself, and by its second section repeals the act of 1795, and all other acts providing for temporary appointments. It is in harmony with the Constitution for it avoids the doubtful power conferred by the act of 1795, of appointing a new officer without the consent of the Senate, but delegates to another officer already confirmed by the Senate the power temporarily to perform the duties of the vacant place. Under the authority of this act in the case of the vacancies provided for the President might have authorized the head of any other executive department to perform temporarily the duties of Secretary of War, and the country would have had the responsibility of a high officer already approved by the Senate. In that event no new officer would have been appointed, no new salary conferred, no new agent of unauthorized power substituted in the place of an officer of approved merit, no mere instrument to execute executive will would have been thrust in the face of the Senate during their session-to hold the office in spite of the constitutional power of the Senate and against their advice and consent. Under this act the

President had no more power to appoint General Thomas Secretary of War ad interim than he had to appoint any of the leaders of the late rebellion. General Thomas is an officer of the army, subject to court-martial, and not an officer of the department, or in any sense a civil or department officer.

Did the act of March 2, 1867, confer this authority? On the contrary, it plainly prohibits all temporary appointments except as specially provided for The third section repeats the constitutional authority of the President to fill all vacancies happening during the recess of the Senate by death or resignation— and that if no appointment is made during the following session to fill such vacancy, the office shall remain in abeyance until an appointment is duly made and confirmed-and provision is made for the discharge of the duties of the office in the meantime. The second section provides for the suspension of an officer during the recess, and for a temporary appointment during the recess. This power was exercised and fully exhausted by the suspension of Mr. Stanton until restored by the Senate, in compliance with the law. No authority whatever is conferred by this act for any temporary appointment during the session of the Senate, but, on the contrary, such an appointment is plainly inconsistent with the act, and could not be inferred or implied from it. The sixth section further provides:

That every removal, appointment, or employment, made, had, or exercised, contrary to

the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceed ing $10,000, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court.

This language is plain, explicit, and was inserted not only to prohibit all temporary appointments except during the recess, and in the mode provided for in the second section, but the unusual course was taken of affixing a penalty to a law defining the official duty of the President. The original bill did not contain penal clauses; but it was objected in the Senate that the President had already disregarded mandatory provisions of the law, and would this; and therefore, after debate these penal sections were added to secure obedience to the law, and to give to it the highest sanction.

Was not this act wilfully violated by the President during the session of the Senate?

It appears from the letter of the President to General Grant, from his conversation with General Sherman, and from his answer, that he had formed a fixed resolve to get rid of Mr. Stanton and fill the vacancy without the advice of the Senate. He might have secured a new Secretary of War by sending a proper nomination to the Senate. This he neglected and refused to do. He cannot allege that the Senate refused to relieve him from an obnoxious minister. He could not say that the Senate refused to confirm a proper appointee for he would make no appointment to them. The Senate had declared that the reasons assigned for suspending Mr. Stanton did not make the case required by the tenure-of-office act, but I affirm as my conviction that the Senate would have confirmed any one of a great number of patriotic citizens if nominated to the Senate. I cannot resist the conclusion, from the evidence before us, that he was resolved to obtain a vacancy in the Department of War in such a way that he might fill the vacancy by an appointment without the consent of the Senate and in violation of the Constitution and the law. This was the purpose of the offer to General Sherman. This was the purpose of the appointment of General Thomas. If he had succeeded as he hoped, he could have changed his temporary appointment at pleasure and thus have defied the authority of the Senate and the mandatory provisions of the Constitution and the law. I cannot in any other way account for his refusal to send a nomination to the Senate until after the appointment of General Thomas. The removal of Mr. Stanton by a new appointment, confirmed by the Senate, would have complied with the Constitution. The absolute removal of Mr. Stanton would have created a temporary vacancy, but the Senate was in session to share in the appointment of another. An ad interim appointment without authority of law, during the session of the Senate, would place the Department of War at his control in defiance of the Senate and the law, and would have set an evil example, dangerous to the public safety-one which, if allowed to pass unchallenged, would place the President above and beyond the law.

The claim now made that it was the sole desire of the President to test the constitutionality of the tenure-of-office act, is not supported by reason or by proof. He might, in August last, or at any time since, without an ad interim appointment, have tested this law by a writ of quo warranto. He might have done so by an order of removal, and a refusal of Mr. Stanton's requisitions. He might have done so by assigning a head of a department to the place made vacant by the order of removal. Such was not his purpose or expectation. He expected by the appointment of General Sherman at once to get possession of the War Department, so when General Thomas was appointed there was no suggestion of a suit at law until the unexpected resistance of Mr. Stanton, supported by the action of the Senate, indicated that as the only way left.

Nor is this a minor and unimportant violation of law. If upon claim that