and to the future. and was so understood, until it became important to change or pervert its obvious meaning.

The President understood the law on the 2d of March, 1867, when he sent his veto message to Congress. (Page 38 of Record.)

He says in that message, "In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States." Then it included any civil officers whatever. Now it includes some and excludes others.

I am aware that a constitutional question has been raised upon the denial of the right of the President to remove from office, which I need not discuss after the repeated votes of the Senate affirming the constitutional validity of such a law. But no one has contended or will contend that the President could make any appointment for any temporary purpose whatever, without the authority of law, and he certainly cannot do so against a plain statute. The issuance of the letter of authority for the appointment or employment of Thomas is expressly declared to be a misdemeanor. It is no answer to the admitted constitutional power of Congress to pass the law to say that cases might arise in which it might be inconvenient if the President were deprived of the right to fill temporary vacancies. That would be a matter for the legislative department to decide, and besides no such case had arisen when Thomas was appointed or employed, but on the contrary Mr. Stanton was in office and fully qualified to discharge the duties of the Department of War. It is no excuse for violating a law to say that cases may arise when the law would work inconveniences particularly when no inconvenience exists in the given case. No precedent has been found. in the history of the government for the removal of Stanton and the appointment of Thomas ad interim. They are in direct violation of the Constitution and cannot be justified or excused by practice, if such practice has existed.

Usurpation is not to be tolerated against the express provisions of written law and against the protest of the Senate after mature consideration. I regard the removal of Stanton and the appointment of Thomas as parts of the same transaction. The two acts taken together in defiance of law and the decision of the Senate, constitute a bold and deliberate attempt to dispense with the provision of the Constitution which makes the advice and consent of the Senate necessary to the appointment to office. For if the President can remove the Secretary of War and appoint a person ad interim to fill the place, the advice and consent of the Senate are of no consequence. This would authorize him to remove all executive officers, civil and military, and put persons into these offices suitable to his purposes, who might remain in office indefinitely. He might or he might not nominate to the Senate. If he should condescend to do so he might nominate the persons holding ad interim, and the Senate could only choose whether it would confirm the nominees or let the same persons continue ad interim. The Senate could in that case choose as to the character of the commissions, but would have no voice as to the character of the officers. But suppose the President should nominate different persons from the ad interim appointees, which persons would of course be also the choice of the Executive, and in that event the Senate might confirm or allow the ad interim officers to continue to discharge the duties of the respective offices. In that case the Senate would have the poor privilege of choosing between two instruments of the President. If this can be done in the case of the Secretary of War, it can be done in all cases of executive offices, civil and military. The whole power of the government would then be in the hands of one man. He could then have his tools in all the offices through whom alone the civil and military power of the United States could be exercised. To acquit Andrew Johnson is to affirm this power in the present and all future presidents.

The motives of the President in deliberately violating law cannot be consid

ered. Such a defence might be set up in every criminal case. He does not claim that hedid not intend to issue the order for the removal of Stanton and issue the letter for the appointment of Thomas ad interim. If either of these acts was a misdemeanor, he intended to commit a misdemeanor The question of intention or motive can only be material where doubt exists as to voluntary or deliberate character of the offence. My conclusion is that the President deliberately violated the law both in issuing the order for the removal of Stanton and in giving the letter of authority to Thomas, and that all the articles involving a charge of either of those acts ought to be sustained if we desire to preserve the just balance of the co-ordinate departments of the government and vindicate the authority of law.

OPINION OF Mr. SENATOR DAVIS.

The subject of impeachment is provided for in the Constitution by several clauses, which I will quote:

The House of Representatives shall have the sole power of impeachment.

The Senate shall have the sole power to try all impeachments. When sitting for that pur pose they shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanor's

Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judg ment, and punishment according to law.

Our system of impeachment has not been transferred from any other government, nor was its organization confided to Congress; but the cautious statesmen who founded our government incorporated it in and built it up as part of the Constitution itself. They enumerated its essential features and made it sui generis. 1. No person but civil officers of the United States are subject to impeachment. 2. The Senate is constituted the court of impeachment. 3. The Chief Justice of the United States is to preside over the court when the President is under trial, and the Vice-President or President pro tempore of the Senate in all other cases. 4 No conviction can take place unless two-thirds of the seators present concur. 5. No impeachment can be made but for treason, bribery, or other high crimes and misdemeanors against the United States. 6. Judgment of impeachment cannot extend to death or other corporal punishment, or fine or imprisonment; but is restricted to removal from and disqualification to hold office; but the party convicted, nevertheless, to be liable and subject to indictment, trial, judgment, and punishment according to law. The offenders, offences, court, and punishment are all distinctly impressed with political features. But the prosecution has assumed two strange and untenable positions in the course of this trial. 1. That the Senate, in the performance of the present most important office and duty, is not a court. It is certainly not a legislative body, nor exercising legislative powers; it is not an advisory council connected in a common function with the President. What, then, is it? Most of the States had previously to the formation of the Constitution organized their several tribunals to try cases of impeachment, and by some they had been denominated courts of impeachment, and all had invested them with the powers and attributes of courts. They were universally held to be courts. The Constitution invests the Senate with the sole power to try all impeachments. To try is to examine a case judicially by the rules of law, and to apply them to the legal evidence taken in the trial, and to render the judgment of the law upon the claims of the parties according to the evidence. The phrases "to try," "tried," "convicted,"

"conviction," and "judgment" are all used in the Constitution in connection with impeachment and the proceedings in it. Those words, in connection with their context, establish, organize, and describe a court; and as applied to the Senate necessarily constitute it a court with jurisdiction to try all cases of impeachment.

The Senate now and for this occasion is a court of impeachment for the trial of the President of the United States, and, like all other courts, is bound by the law and the evidence properly applicable to the case.

The other novel position of the prosecution-that on this trial the Senate "is a law to itself"-is still more extraordinary. The power conferred by the Constitution on the Senate when trying impeachment is limited and wholly judicial, and the idea of combining with it any legislative power whatever is not only without any warrant, but is in direct hostility to the fundamental principle of our government, which separates and makes naturally impassable all its legislative and judicial power. But the position that the Senate, when trying an impeachment, is "a law to itself," is bound by no law, may decide the case as it wills, is illimitable and absolute in the performance of special, restricted, judicial functions in a limited government, is revoltingly absurd. On the trial of any impeachment the Senate has no more authority to make or disregard law than it has to make or disregard facts; and it would be as legitimate and proper and decorous for the managers, in relation to the evidence in this case, to announce to the Senate, "You are witnesses to yourselves," as "You are a law to yourselves." No court has any right or power to make or disregard either law or evidence in the trial of any case; and a court which would act upon and avow that rule of conduct would be execrated by mankind. There is a particular and emphatic contrary obligation on this court, for each one of its members has individually made a solemn appeal to God"that in all things appertaining to the trial of the impeachment of Andrew Johnson, President of the United States, now pending, he will do impartial justice according to the Constitution and the laws."

One of the leading and inflexible laws which bind this court is embodied in the Constitution in these words:

No person shall be removed from office but on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.

That is the category of all impeachable offences, and they must be acts declared by the law of the United States to be treason or bribery, or some other offence which it denominates a "high crime or misdemeanor." The laws which define impeachable offences may be the Constitution, or acts of Congress, or the common law, or some other code, if adopted either by the Constitution or act of Congress. No common-law offence, as such merely, can sustain the impeachment of any officer; but to have that authority it must have become a part of the law of the United States by being adopted by the Constitution or some act of Congress, and would have operation and effect only to the extent that it was consistent with the provisions, principles, and general spirit of the Constitution. No respectable authority has ever maintained that all offences merely against the common law, or merely against public morals or decency, were impeachable under our Constitution. Story has argued, in support of the position, that some offences against the common law, and not made so by act of Congress, are impeachable; but he states his premises so generally and vaguely that it is impossible to obtain a full and clear comprehension of his meaning. He neither asserts the broad proposition that all common-law offences are impeachable, nor does he attempt to define or describe generally those that are, but contents himself with the position, vaguely and hesitatingly taken and maintained, that there are common-law offences which are offences against the United States and which are impeachable; but how or where, or by what language of the Constitution or law of Congress, they become offences against the United States he

does not attempt to show. But he distinctly admits that to be impeachable the offence must be against the United States.

The idea of prosecuting and punishing an act as an offence which no law has made an offence, all must reject. Treason, bribery, high crimes and misdemeanors are technical terms, found in the common law, and that express certain classes of offences; but the common law, in whole or part, is not necessarily or per se the law of the United States, and to become so must be adopted by the Constitution or an act of Congress, and not otherwise There is no provision or words in the Constitution which expressly or by implication adopts the common law. When it was before the conventions of the States on the question of their ratification of it, that it did not adopt the common law was frequently and strenuously objected to, especially in the convention of Virginia; and no one denied the truth of that position. The courts, federal and State, and the profession generally, have, up to the present time, held that there is no adoption of the common law by the Constitution of the United States, and there never has been any by act of Congress."

But this precise question has been decided by the Supreme Court in the negative, and more than once. Hudson & Goodwin were indicted under the common law, in the circuit court of the district of Connecticut, for a libel against the government of the United States; and the case was taken up to the Supreme Court, which decided without any announced difference of opinion among its members, and with the full approbation of Pinckney, Attorney General, that the courts of the United States have no common law jurisdiction in cases of libel or any other crimes against the United States; but that, by the principles of general law, they have the power to fine for contempt, to imprison for contumacy, and to enforce the observance of their orders, &c.; that the legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction. (7 Cranch, 32.) The court, in the case of the United States vs. Coolidge, (1 Wharton, 415,) being an indictment under the common law, for rescuing a prize at sea, recognized the authority of the previous case, and dismissed the indictment. Judge Story sat in both cases, and was the only judge who expressed a dissent in the latter case from the ruling of that court.

The common law, in whole or part, has been adopted by the constitutions or statutes of most of the States; but in Louisiana it has never been made to supersede the civil law, nor the Partidas in Florida. The courts of the United States recognize and adopt, not the criminal, but the civil portion of the common law, generally to the extent to which it has been appropriated by a State, in all cases arising in that State within their jurisdiction; but not as the common law, nor as the law of the United States, bui as the law of the particular State. In States that have not appropriated the common law in whole or part, the United States courts adopt such other law generally as they have established for the government of cases arising in them respectively. But this adoption by the courts of the United States of the laws of the States never extends to criminal or penal cases, but is restricted to those of a civil nature. No State ever executes in any form the penal laws of another State, and the United States only their own penal laws, and they exist in no other form than acts of Congress.

The State of Maryland adopted the common law, and on the organization of the District of Columbia, Congress recognized and continued the laws of that State in so much of it as had been ceded by Maryland. But the laws so adopted by Congress were local to the Maryland portion of the District; they did not extend to the part of it ceded by the State of Virginia, in which Congress adopted and continued in the same way the laws of Virginia. As the laws of each State are local and distinctive, so are the laws of Maryland and Virginia, which were adopted by Congress for the District of Columbia on its organization, local and

distinctive to the portions of the District that were ceded by those States respectively.

Treason, bribery, and other offences of the nature of high crimes and misdemeanors, to be impeachable, must be crimes against the general law of the United States, and punishable in their courts of the localities where committed. Thus, treason against the United States is an impeachable offence, whether it be committed in any State or Territory, or the District of Columbia; and so of any other act to be impeachable, it must be an offence by the laws of the United States, if perpetrated anywhere within its boundary. That an act done in the portion of this District ceded by the State of Maryland would be an impeachable offence, and a similar act done in any place beside in the United States would not be impeachable, is sustained by neither law nor reason. Such an offence would be against the District of Columbia, not against the United States. The law of impeachment is uniform and general, not various and local, and it has no phase restricted to the District of Columbia, as has been assumed by the prosecution.

Then, besides treason and bribery, which are impeachable by the Constitution, to make any other act an impeachable offence it must not only be defined and declared to be au offence, but it must be stamped as a high crime or misdemeanor by an act of Congress. The words "high crimes and misdemeanors" do not define and create any offence, but express, generally and vaguely, crim. inal nature, and of themselves could not be made to sustain an indictment or other proceeding for any offence whatever; but a law must define an offence, and affix one of those terms to it to make it a constitutional ground of impeachment. And this is not all; the offence in its nature must have the type of heinous moral delinquency or grave political viciousness, to make an officer committing it amenable to so weighty and unfrequent a responsibility as impeachment. He may have been guilty of a violation of the Sabbath or of profane swearing, or of breaches of the mere forms of law, and if they had been declared offences by act of Congress, with the prefix of "high crime" or "high misdemeanor" attached to them, they would not be impeachable offences. They would be too trivial, too much wanting in weight and State importance to evoke so grave, so great a remedy. Nor would any crime or offence whatever against a State, or against religion or morality, be a cause for impeachment, unless such an act had been previously declared by a law of Congress to be a high crime or a high misdemeanor, and was in its character of deep turpitude.

It results from this view of the law of impeachment, that as none of the articles against the President charge him with treason or bribery, which are made impeachable offences by the Constitution, they, or some one of them, must allege against him the doing of an act or acts which a law of Congress has declared to be an offence against the United States, and denominated it to be, and in its vicious nature it must be a high crime or high misdemeanor, and that the President did that act with a criminal intent to violate the law, to authorize this court to convict him and pronounce judgment that he be removed from office. I will now proceed to the examination of the offences charged in the several articles. The first charges the President with the commission of a high misdemeanor in having sent a letter to Edwin M. Stanton, Secretary of the Department of War, dismissing him from office while the Senate was in session, in violation of the act of Congress "to regulate the tenure of certain civil offices."

Article two charges the President with the commission of a high misdemeanor in having delivered his letter to Lorenzo Thomas directing him to assume possession of the War Department and to perform its duties ad interim, the Senate being then in session, and without its advice and consent, there being no vacancy in the office of Secretary of the Department of War, in violation of his oath of office, the Constitution of the United States, and the act of Congress aforesaid. Article four charges the President of unlawfully conspiring with Lorenzo