authority of the President for this purpose, given in or to be derived from the Constitution.

Whatever rightful authority, then, was exercised by the President in making this appointment to the War Department, must have been derived from the express terms of some legislative enactment.

By the eighth section of the act of 1792, making alterations in the Treasury and War Departments, it is made lawful for the President, in case of the death, sickness, or absence of the Secretary, to authorize some person to perform the duties of the office until a successor is appointed in case of death, or the absence or inability from sickness shall cease. The only actual vacancy contemplated by this act is one happening by death.

The act of 1795, amendatory of the last mentioned act, declares, generally, that in every case of vacancy in the department "it shall be lawful" for the President to authorize any person to perform the duties of the office until a successor be appointed, "provided that no one vacancy shall be supplied in manner aforesaid for a longer term than six months." This act contemplates lawful vacancies only, for none other are vacancies which can be lawfully filled. We have already seen that the President could not lawfully make a vacancy without the concurrence of the Senate while it was in session to take concurrent action and to claim that the President is authorized by this act to make an appointment to a vacancy made during a session of the Senate by his separate action, is simply begging the whole question. If there was no lawful vacancy, it could not lawfully be filled, and there is nothing in the law which makes any vacancy lawful which was not lawful before its passage. By the act of February 20, 1863, it is made lawful for the President, in case of the death, resignation, sickness, or absence of the head of any executive department, to authorize the head or other officer of one of the departments to perform the duties until a successor is appointed, or such absence or inability by sickness shall cease.” This was the condition of the law before the passage of the act." The act of 1792 had been superseded by the act of 1795, and this had been followed in turn by the act of 1863. This last act was, I doubt not, intended to supersede the act of 1795, as it provides that the vacancies to which it applies shall be filled with a select class of persons, and there could have been no reason why all vacancies in the same office, however produced, should not be filled by the same select class. The act appears to be intended to provide for the temporary supplying of all vacancies in the offices referred to, and. by omitting from its list. of vacancies vacancies by removal, it seems, by its later implication, to conclude the President's power of removal, as derived from the implications of the earlier laws of 1789, creating the departments.

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tenure-of-office

But if it is conceded that the President retained the power of removal, during the recess, after the passage of the act of 1863, it must also be conceded that the act of 1863 did not cover all the subject-matter of the act of 1795, and does not, therefore, completely supersede it. It will be seen that none of these laws affirmatively recognize or imply a power of removal in the President during the session of the Senate, and consequently they give him no power of appointment to a vacancy made by him at such time, while not one precedent can be found that goes to this extent, so that this power is claimed contrary to the necessary implications of the Constitution, and without authority either of law or precedent. But the tenure-of-office act clearly covers and regulates this whole subject-matter, and supersedes the previous laws, including the act of 1795. We have already scen that this act applies to this case.

The second section certainly does apply, and if the vacancy which is said to exist in the War Department is claimed to have been made " during a recess " in August last, it must have been under that section, for it provides that "during the recess of the Senate ", vacancies shall only be made

by the President by suspension, and that no suspension shall be had, except in a case made under its provisions, and that "in such case, and in no other," the President may designate a suitable person temporarily to perform the duties; but if the Senate does not consent, the suspended officer shall "forthwith resume the functions of his office" So if the vacancy was made in vacation, that vacancy no longer existed after the refusal of the Senate to consent to it, and the appointment of Thomas was without authority of law. But the terms of the President's letter of February 21st to Mr. Stanton assume that he was then in office, and was thereby removed" during the session of the Senate." We have already seen that all removals at such times are regulated by the first section of the tenure-of-office act, and that the case of Stanton is included by its provisions; but by that section all temporary or ad interim appointments to the offices referred to therein are abolished, and the officer appointed by and with the advice and consent of the Senate is "entitled to hold" his office until a successor shall have been appointed “in like manner,” that is, with the concurrence of the Senate. The appointment of Thomas was not "in like manner."

It will also be perceived that the words in the body of the first section, immediately preceding the proviso, are "except as herein otherwise provided." This language refers to the whole act. Its meaning is except as is otherwise provided in this act. Now the term of "office, and the manner of removal from and appointment to office, are distinct propositions contained in the body of the section. The proviso relates only to the term of the officers therein named; but that part of the subject-matter of the general clause which provides how the successors of all civil officers requiring confirmation shall be appointed, viz: by and with the advice and consent of the Senate, is not affected by the proviso. This subject is not "otherwise provided for" in that proviso in relation to any officers, and the provision of the general clause in relation to it is not restricted by the terms or implications of the proviso.

To take the officers mentioned in the exception wholly outside of the provisions of the general clause, which covers other subject-matter besides that covered by the exception, the language must have been, except the officers hereinafter mentioned, or something of like effect. Thus whether Mr. Stanton's case, as far as relates to the tenure of his office, is within the general clause, or the exception of this section, or within neither, his successor's case is clearly within the general clause, and no one can be lawfully appointed to succeed him except "in like manner," as he was himself appointed, that is, with the concurrence of the Senate.

Again, the reasoning on the spirit of the second section of the act is irresistible. Does it not seem a ridiculous claim that the President may "during a session of the Senate" appoint a successor or locum tenens of any kind for an officer whom the Senate has just, under express authority of law, refused to remove, and who has just, under like authority, resumed the functions of his office?

The appointment of Thomas, then, was unauthorized by any law, and was an unlawful attempt by the exercise of usurped executive power to seize upon and control a most important department of the government, in violation of express legislative enactment.

This crime, so clearly shown, is really a higher and more dangerous one than the removal of Stanton, for it not only includes the unlawful removal, but is in itself an affirmative, while the other is, in some sense, but a negative act of usurpation.

Whatever plea of misinformation, mistake, or absence of intent may be set up by his friends or his counsel, the President makes no such plea. He has claimed and does claim in his answer, and by the lips of his special representatives among the counsel, that he has removed Mr. Stanton and appointed Thomas by virtue of power vested in him as the Chief Executive, notwithstanding the

tenure-of-office act. And it is proved that he intends to carry out his attempt should this trial result in his favor. By a verdict of acquittal, then, the Senate must either recede from their position on this act, or must submit that the President may defy its spirit and violate its express provisions with impunity.

In the consideration of this question I have assumed the constitutionality of the tenure-of-office act. I cannot consent to even consider this a debatable point. The Senate has solemnly adjudicated this question for itself on four distinct occasions, each individual senator acting under the obligation of an oath as solemn and binding as that administered at the commencement of this trial, of the solemnity of which we have been so often reminded by the counsel for the President. First, by the passage of the bill in question, after a full discussion of its provisions, by a vote of 29 yeas to 9 nays. Secondly, the bill having been submitted to the President, for his approval, and returned to .the Senate with his objections in an elaborate veto message arguing against the constitutionality of the measure, the Senate again passed the bill in the face of the arguments submitted, by a vote of more than two-thirds of the members present and voting. Upon the question "Shall the bill pass, the objections of the President to the contrary notwithstanding?" the vote was as follows:

YEAS-Messrs. Anthony, Cattell, Chandler, Conness," Cragin, Edmunds, Fessenden, Fogg, Foster, Fowler, Frelinghuysen, Grimes, Harris, Henderson, Howard, Kirkwood, Lane, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Ross, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, Wilson, Yates-35.

NAYS-Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Hendricks, Johnson, Nesmith, Norton, Patterson, Saulsbury-11.

Thirdly, the Senate recognized the validity of this law when, in response to the message of the President communicating the fact that he had “ during the recess" suspended Mr. Stanton, the Senate took action, under and in accordance with the said law, and after due consideration refused to concur in the suspension of that officer, and informed the President thereof. Fourthly, when the President, after having exhausted all legal means to displace this faithful and efficient officer, and rid himself of what his counsel chooses to call "a thorn in his heart," deliberately, wilfully, and knowingly violated the provisions of this act by the arbitrary removal or attempted removal of Mr. Stanton and the appointment of Lorenzo Thomas, and defiantly flaunted his action in the face of the Senate, this body again reaffirmed the validity of the tenure-of-office act by declaring that the action of the President was without lawful authority.

I submit, then, that the tenure of-office bill, having been passed over the President's veto by a vote of two-thirds of both houses, by express provision of the Constitution "it became a law;" a law to the President, and a law to all the people; a law as valid and binding as any on the statute-book; and I cannot believe that the Senate will consent to stultify itself by the admission that its oft-repeated action upon this bill was in violation of the Constitution, which each member had solemnly sworn to support.

Moreover, the President himself recognized the validity of the law by taking action under its provisions in the suspension of Mr. Stanton, as I have already shown in the course of this argument. Upon what principle may he consider a law valid and binding to-day and of no force or effect to-morrow? The law was sufficient so long as he thought he could accomplish his purpose to get rid of Mr. Stanton under it; but when he failed in this by the refusal of the Senate to concur in the proposed removal, he overrides the law, and then attempts to shelter himself, when arraigned for the offence, under the plea that it is not a constitutional law.

But admitting for the sake of argument that there were doubts as to the constitutionality of the law, who clothed Andrew Johnson with judicial power to settle that question? Under what clause of the Constitution does he presume to derive the power to decide which of the enactments of Congress are valid and

binding and which are not? If he may exercise judicial funcions in regard to one law, why not in regard to all laws? As I read the Consitution, the President is enjoined to "take care that the laws be faithfully executed." I find no provision in that instrument which clothes him with the more than regal power to decide which laws he will execute and which he will not.

If judicial power is a prerogative of the Executive, of what use is the Supreme Court? Why not abolish so useless an institution? Nay, more, if a law of Congress, though passed by the constitutional vote of two-thirds of both houses, may not "become a law" unless it meets the sanction of the executive-if he may suspend or virtually repeal by rendering inoperative the enactments of Congress, why not abolish the legislative department of the government?

It may be that Andrew Johnson is wiser than the Senate and House of Representatives; it may be that wisdom dwells with him, and will die with him; it may be unfortunate that the Constitution under which we live has not given to him who claims to be its especial custodian and guardian, the more than imperial power to make the laws and judicially pass upon them, as well as the duty to take care that they be faithfully executed;" but, in my judgment, the American people will be slow in arriving at any such conclusion. So monstrous a proposition as that which virtually surrenders to one man all the power of our great government is not worthy of serious consideration.

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Mr. President, for the first time in the history of our government we are confronted with a clear, decided and flagrant act of executive usurpation. For his offence against the majesty of the law the House of Representatives, in accordance with the provisions of the Constitution, and in the name of all the people of the United States, have impeached Andrew Johnson for high crimes and misdemeanors, and have brought him to the bar of the Senate to answer to the charges exhibited against him. The issues involved in these proceedings are of the gravest character, reaching down to the very foundation of our system government, and it behooves us as the representatives of forty million of people to see to it that impartial justice is done as between the people and the accused. If this, the highest tribunal of the nation, shall render a verdict of acquittal, it will be a virtual admission of the President's assertion of " the power at any and all times of removing from office all executive officers for cause to be judged by the President alone." It will be a complete surrender of the constitutional power of the Senate over all appointments to office, for of what practical value will be the required advice and consent of the Senate to an appointment, if the person so appointed may the next hour be removed by the action of the Executive alone, regardless of, and, indeed, in despite of the wishes of the Senate?

It will, moreover, be a virtual surrender of what has been claimed from the origin of the government to this day, the right to regulate and control, by legislative enactment, the executive power over removals from office of such officers as require confirmation by the Senate, and it will give to the President the unrestrained control of the officers of the army and navy, as well as those of the civil service.

It will give license to Andrew Johnson and all future occupants of the presidential office to disregard at pleasure the enactments of the legislative department, and to plead in justification that you have so ruled by your verdict in this

case.

It will tend to destroy the harmonious relations of the several departments of the government, so nicely adjusted, with checks and balances and limitations by the wisdom of the fathers of the Constitution, by increasing immensely the powers and privileges of the executive at the expense of the legislative department. Thenceforward the ruler will no longer be the servant of the people, but the people will be the servants of the ruler, and we shall not be able hereafter to say, in the sublime language of the martyred Lincoln, that ours is “ a government of the people, by the people, and for the people."

Believing, as I conscientiously do, that such are the results which must follow the acquittal of Andrew Johnson by this tribunal, and believing that the House of Representatives have made good the material charges preferred against him, 1 cannot doubt as to my duty in the premises. I deeply regret that the necessity for these momentous proceedings has arisen. I would gladly have escaped the solemn responsibilities of this hour. But this may not be, and I must, therefore, upon the law and the evidence, in accordance with the dictates of my conscience, and in view of the solemn obligations of my oath, declare that in my judgment Andrew Johnson is guilty of high crimes and misdemeanors as charged by the representatives of the people.

OPINION OF MR. SENATOR TIPTON.

When the act regulating the tenure of civil offices passed Congress on the 2d day of March, 1867, Edwin M. Stanton was Secretary of War, having been appointed to said office by Mr. Lincoln and confirmed by the Senate January 15, 1862, and commissioned to hold the office "during the pleasure of the President of the United States for the time being." The first section of the act 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 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 one month thereafter, subject to removal by and with the advice and consent of the Senate.

Before the passage of the above recited section the only limit to a Secretary's term was the pleasure of the President; but it was determined to make the termination definite, and hence we have a time specified beyond which it could not extend, namely, one month after the expiration of the term of the President by whom appointed.

The question relative to the Secretary of the Interior to be settled would be, how long will his commission run? while the answer would be just one month after the termination of the term of Mr. Johnson, by whom he was, by the advice and consent of the Senate, appointed. So his term would expire on the 4th day of April, 1869, which would be the end of one month after the expiration of Mr. Johnson's term, in case he filled the full unexpired term of Mr. Lincoln. He being in office on the 2d of March, 1867, under a commission which was a precise copy of Mr. Stanton's, I would look forward, not backward, to find the period of time when the law would put an end to his term of office, unless sooner removed by and with the advice and consent of the Senate.

To find the limit of Mr. Stanton's term I would look forward also, and as he is serving with the Secretary of the Interior, upon the same term, and under the same identical commission, I would declare him liable to removal by force of law, just as soon as one month shall have passed after the expiration of the term, which is being served out alike by himself and the Secretary of the Interior. To the objection that the Secretary of the Interior was appointed by Mr. Johnson, and is serving out his term, while Mr. Stanton was appointed by Mr. Lincoln, whose term had expired nearly two years before the date of the act limiting terms, I reply that the terms of these Secretaries are one and the same, and there is no period of time subsequent to the date of the act which one Secretary shall retire in advance of another.

In regard to Mr. Stanton's term having expired according to the limitations of this law, one month after the death of Mr. Lincoln, I deny the proposition.