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the tenure-of-office act was unconstitutional, he might remove an officer and place his instrument or agent in possession of it, he might in the same way and by the same means take possession of all the executive departments, of all the bureaus, of the offices of the Auditors, Comptrollers, Treasurer, collectors and assessors, and thus control, by his will, the purse and the sword. He knew that his power was contested, and he defied it. It is clearly shown that his purpose was deliberately formed and deliberately executed, and the means for its execution were carefully selected. I, therefore, conclude that the appointment of General Thomas was a wilful violation of the law, in derogation of the rights of the Senate, and that the charges contained in the second, third, seventh and eighth articles are true.

The criminal intent alleged in the 9th article is not sustained by the proof. All the President did do in connection with General Emory is reconcilable with his innocence, and therefore I cannot say he is guilty as charged in this article.

The 10th article alleges intemperate speeches improper and unbecoming a chief magistrate, and the seditious arraignment of the legislative branch of the government. It does not allege a specific violation of law, but only personal and political offences for which he has justly forfeited the confidence of the people.

Am I, as a senator, at liberty to decide this cause against the President even if guilty of such offences. That a President in his personal conduct may so demean himself by vice, gross immorality, habitual intoxication, gross neglect of official duties, or the tyrannous exercise of power, as to justify his removal from office is clear enough; but the Senate is bound to take care that the offence is gross and palpable, justifying in its enormity the application of the strong words "high crime or misdemeanor." And above all, we must guard against making crimes out of mere political differences, or the abuse of the freedom of speech, or of the exhibition of personal weakness, wrath, or imbecility. We do not confer the office of President, and may not take it away except for crime or misdemeanor. The people alone may convict and condemn for such offences. The Senate may not trespass upon the jurisdiction of the people without itself being guilty of usurpation and tyranny. Better far to submit to a temporary evil than to shake the foundations of the civil superstructure established by the Constitution by enlarging our jurisdiction so as to punish by removal from office the utmost latitude of discussion, crimination and recrimination, which, so long as it is unaccompanied by unlawful acts, is but the foolish vaporing of liberty.

The House of Representatives of the 39th Congress refused to rest an accusation upon these speeches, and so of the present House, until other acts of a different character induced these articles of impeachment. We must pass upon this article separately, and upon it my judgment is that it does not allege a crime or misdemeanor within the meaning of the Constitution.

The great offence of the President consists of his opposition, and thus far successful opposition, to the constitutional amendment proposed by the 39th Congress, which, approved by nearly all the loyal States, would, if adopted, have restored the rebel States, and thus have strengthened and restored the Union convulsed by civil war. Using the scaffoldings of civil governments, formed by him in those States without authority of law, he has defeated this amendment, has prolonged civil strife, postponed reconstruction and re-union, and aroused again the spirit of rebellion overcome and subdued by war. He, alone, of all the citizens of the United States, by the wise provisions of the Constitution, is not to have a voice in adopting amendments to the Constitution; and yet, he, by the exercise of a baleful influence and unauthorized power, has. defeated an amendment demanded by the result of the war. He has obstructed as far as he could all the efforts of Congress to restore law and civil government

to the rebel States. He has abandoned the party which trusted him with power, and the principles so often avowed by him which induced their trust.

Instead of co-operating with Congress, by the execution of laws passed by it, he has thwarted and delayed their execution, and sought to bring the laws and the legislative power into contempt. Armed by the Constitution and the laws, with vast powers, he has neglected to protect loyal people in the rebel States, so that assassination is organized all over those States, as a political power to murder, banish, and maltreat loyal people, and to destroy their property. All these he might have ascribed to alleged want of power, or to difference of opinion in questions of policy, and for these reasons no such charges were exhibited against him, though they affected the peace and safety of the nation. When he adds to these political offences the wilful violation of a law by the appointment of a high officer during the session of the Senate, and without its consent, and with the palpable purpose to gain possession of the Department of War, for an indefinite time, a case is made not only within the express language of the law a high misdemeanor, but one which includes all the elements of a crime, to-wit: a violation of express law, wilfully and deliberately done, with the intent to subvert the constitutional power of the Senate, and having the evil effect of placing in the hands of the President unlimited power over all the officers of the government.

This I understand to be the substance of the 11th article. It contains many allegations which I regard in the nature of inducement, but it includes within it the charge of the wilful violation of law more specifically set out in the second, third, seventh, and eighth articles, and I shall therefore vote for it.

The power of impeachment of all the officers of the government, vested in the Senate of the United States, is the highest trust reposed in any branch of our government. Its exercise is indispensable at times to the safety of the nation, while its abuse, especially under political excitement, would subordinate the executive and the judiciary to the legislative department. The guards against such a result are in the love of justice inherent in the people who would not tolerate an abuse of power, and also in the solemn appeal each of us have made to Almighty God to do impartial justice in this cause. We dare not for any human consideration disregard this oath, but guided by conscience and reason will, no doubt, each for himself, render his verdict upon these charges according to the law and the testimony, and without bias from personal, political, or popular influence. This done we may disregard personal consequences and leave our judgment and conduct in this great historical trial to the test of

time.

OPINION OF MR. SENATOR FESSENDEN.

The House of Representatives have, under the Constitution of the United States, presented to the Senate eleven distinct articles_of_impeachment for high crimes and misdemeanors against the President. Each senator has solemnly sworn, as required by the Constitution, to "do impartial justice, according to the Constitution and the laws," upon the trial. It needs no argument to show that the President is on trial for the specific offences charged, and for none other. It would be contrary to every principle of justice, to the clearest dictates of right, to try and condemn any man, however guilty he may be thought, for an offence not charged, of which no notice has been given to him, and against which he has had no opportunity to defend himself. The question then is, as proposed to every senator, sitting as a judge, and sworn to do impartial justice, "Is the President guilty or not guilty of a high crime or" misdemeanor, as charged in all or either of the articles exhibited against him?"

The first' article of the series substantially charges the President with having attempted to remove Edwin M. Stanton from the office of Secretary of War, which he rightfully held, in violation of law and of the Constitution of the United States. Granting that an illegal and unconstitutional attempt to remove Mr. Stanton in the manner alleged in the article, whether successful or not, is a high misdemeanor in office, the first obvious inquiry presents itself, whether under the Constitution and the laws the President had or had not a right to remove that officer at the time such attempt was made, the Senate being then in session. To answer this inquiry it is necessary to examine the several provisions of the Constitution bearing upon the question, and the laws of Congress applicable thereto, together with the practice, if any, which has prevailed since the formation of the government upon the subject of removals from office.

The provisions of the Constitution applicable to the question are very few. They are as follows:

Article 11, section 1. The executive power shall be vested in a President of the United States of America.

Article 11, section 2. He (the President) * * * shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. Same section. The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.

Article 11, section 4. 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 misdemeanors.

The whole question of removals from office came under the consideration of the first Congress assembled after the adoption of the Constitution, and was much discussed by the able men of that day, among whom were several who took a prominent part in framing that instrument. It was noticed by them that the only provision which touched in express terms upon the subject of removals from office was found in the clause which related to impeachment; and it was contended that, consequently, there was no other mode of removal. This idea, however, found no favor at that time, and seems never since to have been entertained. It is quite obvious that as such a construction would lead to a life tenure of office, a supposition at war with the nature of our government, and must of necessity involve insuperable difficulties in the conduct of affairs, it could not be entertained. But it was equally obvious that a power of removal must be found somewhere, and as it was not expressly given except in the impeachment clause, it must exist among the implied powers of the Constitution. It was conceded by all to be in its nature an executive power; and while some, and among them Mr. Madison, contended that it belonged to the President alone, because he alone was vested with the executive power, and, from the nature of his obligations to execute the law and to defend the Constitution, ought to have the control of his subordinates, others thought that as he could only appoint officers "by and with the advice and consent of the Senate" the same advice and consent should be required to authorize their removal. The first of these constructions finally prevailed, as those who have read the debates of that period well know. This was understood and avowed at the time to be a legislative construction of the Constitution, by which the power of removal from office was recognized as exclusively vested in the President. Whether right or wrong, wise or unwise, such was the decision, and several laws were immediately enacted in terms recognizing this construction of the Constitution.

The debate referred to arose upon a bill for establishing what is known as the Department of State. And in accordance with the decision of that first Congress the right and power of the President to remove the chief officer of that department was expressly recognized in the second section, as follows:

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"SEC. 2. And be it further enacted, That there shall be in the said department an inferior officer," &c., * "who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy shall, during such vacancy, have the charge," &c., act approved July 27, 1789. The same provision is found in totidim verbis in the act establishing the Department of War, approved August 7, 1789; and terms equally definite are found in the act to establish the Treasury Department, approved September 2, 1789. These several acts have continued in force to the present day; and although the correctness of the legislative construction then established has more than once been questioned by eminent statesmen since that early period, yet it has been uniformly recognized in practice; so long and so uniformly as to give it the force of constitutional authority. A striking illustration of this practical construction arose in the administration of John Adams, who, when the Senate was in session, removed Mr. Pickering from the office of Secretary of State without asking the advice and consent of the Senate, nominating to that body for appointment on the same day John Marshall, in the place of Timothy Pickering, removed. No question seems to have been made at the time of this exercise of power. The form of all commissions issued to the heads of departments, and to other officers whose tenure was not limited by statute, has been "during the pleasure of the Presi dent for the time being." And the right to remove has been exercised without restraint, as well upon officers who were appointed for a definite term as upon those who held during the pleasure of the President.

It has been argued that even if this right of removal by the President may be supposed to exist during the recess of the Senate, it is otherwise when that body is in session. I am unable to perceive the grounds of this distinction, or to find any proof that it has been recognized in practice. The Constitution makes no such distinction, as it says nothing of removal in either of the clauses making distinct provisions for appointment in recess and during the session. Probably this idea had its origin in the fact that in recess the President could appoint for a definite period without the advice and consent of the Senate, while in the other case no appointment could be made without that advice and consent. It has been uniformly held that a vacancy occurring in time of a session can only be filled during session by and with the advice and consent of the Senate, and cannot be lawfully filled during recess. But I am not aware that the President's power of removal during the session has ever been seriously questioned while I have been a member of the Senate. The custom has undoubtedly been to make the nomination of a successor the first step in a removal, so that the two acts were substantially one and the same. But instances have not unfrequently occurred during session where the President thought it proper to remove an officer at once, before sending the name of his successor to the Senate. And during my time of service previous to the passage of the act of March 2, 1867, I never heard his right to do so seriously questioned. The passage of that act is, indeed, in itself an admission that such were understood to be the law and the practice.

I will not attempt to discuss the question here whether the construction of the Constitution thus early adopted is sound or unsound. Probably it was thought that while the restraining power of the Senate over appointments was a sufficient protection against the danger of executive usurpation from this source, the President's responsibility for the execution of the laws required a prompt and vigorous check upon his subordinates. Judging from the short experience we have had under the act of March 2, 1867, the supervising power of the Senate over removals is poorly calculated to secure a prompt and vigorous correction of abuses in office, especially upon the modern claim that where offices are of a local character the representative has a right to designate the officer; under which

claim this branch of executive authority, instead of being lodged where the Constitution placed it, passes to one of the legislative branches of the government Such as I have described was the legislative construction of the Constitution on the subject of removals from office, and the practice under it, and such was the statute establishing the Department of War, distinctly recognizing the President's power to remove the principal officer of that department at pleasure, down to the passage of the act regulating the tenure of certain civil offices, which became a law March 2, 1867. Although that act did not receive my vote originally, I did vote to overrule the President's veto, because I was not then, and am not now, convinced of its unconstitutionality, although I did doubt its expediency, and feared that it would be productive of more evil than good. This is not the occasion, however, to criticise the act itself. The proper inquiry is, whether the President, in removing, or attempting to remove, Mr. Stanton from the office of Secretary of War, violated its provisions; or, in other words, whether, if the President had a legal right to remove Mr. Stanton before the passage of that act, as I think he clearly had, he was deprived of that right by the terms of the act itself. The answer to this question must depend upon the legal construction of the first section, which reads as follows, viz :

Be it enacted, &c., 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 Seeretaries 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.

In considering how far these provisions apply to the case of Mr. Stanton, the state of existing facts must be carefully borne in mind.

Mr. Stanton was appointed by President Lincoln during his first term, which expired on the 4th of March, A. D 1865. By the terms of his commission he was to hold" during the pleasure of the President for the time being." President Lincoln took the oath of office, and commenced his second term on the same 4th day of March, and expired on the 15th day of the succeeding April. Mr. Johnson took the oath of office as President on the day of the death of President Lincoln. Mr. Stanton was not reappointed Secretary of War by either, but continued to hold under his original commission, not having been removed. How, under these circumstances, did the act of March 2, 1867, affect him?

A preliminary question as to the character under which Mr. Johnson administered the office of President is worthy of consideration, and may have a material bearing.

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The fifth clause of section 1, article 11, of the Constitution provides as follows, viz: "In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office the same shall devolve upon the Vice-President." What shall devalve upon the Vice-President? The powers and duties of the office simply, or the office itself? Some light is thrown upon this question by the remainder of the same clause, making provision for the death, &c., of both the President and Vice-President, enabling Congress to provide by law for such a contingency, as to declare "what officer shall act as President," and that "such officer shall act accordingly"-a very striking change of phraseology. The question has, however, in two previous instances received a practical construction. In the case of Mr. Tyler, and again in that of Mr. Fillmore, the Vice-President took the oath as President, assumed the name and designation, and was recognized as constitutionally President of the United States, with the universal assent and consent of the nation. Each was fully recognized and acknowledged to be President; as fully and completely, and to all intents, as if elected to that office.

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