The conduct of the Secretary of War towards General Thomas, and the disposition of his case by the judge of the court of the District of Columbia, show that neither of those parties placed any confidence in such a charge or attributed any criminality to Lorenzo Thomas. If any confidence in this charge had ever existed in the minds of either the Secretary of War or the judge of the District court, the case of Lorenzo Thomas would never have been disposed of as it was. The only reasonable conclusion is that the judge regarded such a charge as groundless, and also a charge for the violation of the sixth section of the civiltenure bill.

The ninth is the Emory article, which not only is not sustained by the proof, but actually disproved by the witness himself, General Emory. This article belongs properly to the tenth and eleventh, and involves the freedom of speech. The effort to convict the President on such a charge, by such proof, is one of serious moment to every free man in the nation. It must in time be regarded as a dangerous invasion of a personal and constitutional right. In my judgment it will not fail to meet such a verdict from the American people, as well as from all enlightened nations. The President, acting under the advice of his Secretary of the Navy, inquired of General Emory concerning certain movements of troops that he had learned had taken place. General Emory gave him the information, which was received without comment. General Emory then brought before the President the subject of a certain order, which they discussed; the one doubting its constitutionality, and the other maintaining its authority as sanctioned by the advice of excellent counsel. This was all of it. The proof shows neither criminal conduct nor criminal purpose, but that the President was making an inquiry of an officer of the army on a subject not only his right but his duty to understand. He made a proper inquiry of the proper person and under proper circumstances.

The tenth article is one of a character differing much from any of these yet considered. It is one of those which alleges the violation of no law, but involves the propriety or impropriety of a certain style of speech. It is an article much better suited for the press than for the grave deliberation of the highest tribunal of justice in the land. It is placed before the court not for the purpose of criticism, but for the purpose of convicting the Chief Magistrate of the nation of a high misdemeanor, and depriving him of his office. It is not for the court to condemn these speeches as in bad taste, but to consider their criminality. The charge consists of three specifications, which set forth certain extracts from alleged speeches. The allegation is that Andrew Johnson did, on the 18th of August, 1866, and on divers days and times, make and deliver in a loud voice certain intemperate, inflammatory, and scandalous harangues, by which he attempted to bring into disgrace, ridicule, hatred, and contempt and reproach, and destroy the respect of all the good people of the United States, and to excite the odium of the good people of the United States against Congress.

The first specification sets forth a passage from a speech of the President made at Washington, in the Executive Mansion, on the 18th day of August, 1866, many parts of which are in bad taste, but nothing in it that is not guaranteed to him and every other citizen of this land to say.

The second specification is from a speech made at Cleveland, Ohio, on the 3d of September, 1866. The third is from a speech made in St. Louis, September 8, 1866. All these speeches contain passages condemned by the good taste and good judgment of all wise and prudent men. But it is not for any body of men to say that no speeches shall be made unless the sentiment corresponds with their sense of propriety and unless the style corresponds with their standard of elegance and refinement.

I would not pretend to say, nor do I know, how far a speech might go to be considered a high misdemeanor; in no case certainly unless it was made to another for the purpose of inducing him to commit a misdemeanor, which was

committed in pursuance thereof. I am not aware of any rule of law or of any decisions of a judicial tribunal that lays down rules for abridging the exercise of the liberty of speech. Any citizen may praise or condemn the acts of Congress at pleasure, and should always preserve not only his own self-respect, but a proper decency of speech for Congress. If he does not choose to make a selection of elegant terms, can he be made to talk in a more approved style? This was once attempted by Congress in the enactment of the sedition law for two years. The American people pronounced their judgment upon that law and upon that Congress. Perhaps no measure ever met with a more signal condemnation.

However much I may condemn the style and tone of these speeches, I cannot see that Mr. Johnson did more than exercise that liberty of speech guaranteed to him by the Constitution and laws of the country.

It is very manifest that if he intended to bring Congress into disgrace he failed in his purpose, and ended by placing himself in that most unfortunate position, as the article in the end alleges.

To violate law and justice merely to establish a standard of taste by a senatorial decision for the gratification of any body of men, however cultivated and refined, would be a reproach to American liberty and justice. It could not fail to bring upon all who should participate in such an act the righteous retribution of a just and discriminating posterity. The correction for such improper and reprehensible language is the good taste of the people.

I come now to the eleventh and the final article in this list of charges. To it I have brought much labor and study in the hope of understanding this remarkable production.

The allegation appears to be this: that Andrew Johnson did, on the 18th of August, in the city of Washington, by public speech declare and affirm in substance that the 39th Congress was not a Congress of the United States, authorized by the Constitution of the United States to exercise legislative power, and in pursuance of such declaration did the following alleged things:

That he did unlawfully attempt to prevent the execution of "An act regulating the tenure of certain civil offices by unlawfully devising and contriving and attempting to devise and contrive means by which he should prevent Edwin M. Stanton from forthwith resuming the office of Secretary for the Department of War." And also by further "unlawfully devising and contriving and attempting to devise and contrive means to prevent the execution of the act of June 30, 1868." One also to prevent the execution of the "act for the more efficient government of the rebel States." To bring this into a more simple form I will express it in brief: that Andrew Johnson did declare that the 39th Congress was not a Congress having legislative power; and in pursuance thereof, he, by devising and contriving, and attempting to devise and contrive means, attempted to prevent the execution of certain laws.

Here a certain declaration of Mr. Johnson is set forth which has not been proved, viz: that the 39th Congress was not a Congress with legislative power. But admit that he did so state; then a consequence of that declaration is asserted: that he attempted to prevent the execution of certain laws by devising and contriving and attempting to devise and contrive means.

It will be here observed that no conspiracy is charged; that no other parties are connected with him, but that he, by devising and contriving and attempting to devise and contrive means to prevent the execution of certain laws, committed a misdemeanor. Admitting that an attempt to commit a misdemeanor is a misdemeanor, the devising and contriving and attempting to devise and contrive an attempt to commit a misdemeanor can scarcely be so regarded by any tribunal other than an inquisition, as a crime; that he by devising and contriving and attempting to devise and contrive an attempt can in no sense be regarded as either a crime or a misdemeanor. This view is an admission of the truth of

the charge without a question of proof. If the several allegations are examined and so construed as to admit of any reasonable meaning, they will be found unsupported in fact and in law. Suppose that the article did intend to charge the President with having attempted to prevent the execution of the civil-tenure act, instead of devising and contriving and attempting to devise and contrive means to prevent the execution of said act, how does it stand?

The proof is that the President desired to bring before the Supreme Court, for its decision, a law that he believed invaded a function of the office of the Executive. This he had a clear right to do. To that tribunal the question should have been sent, and its decision would have commanded the respect of all the people and all the departments of the government.

The correspondence between General Grant and the President, and the testimony of General Sherman, clearly establish the purpose of the President to test the constitutionality of the "act limiting the tenure of certain civil offices." This was in my judgment not only his right but his duty to do in a lawful and peaceful manner, and there is no proof that anything else was either intended or attempted. The allegation that he attempted to prevent the execution of the army appropriation has no proof in its support. The last allegation that he attempted to prevent the execution of the act for the more efficient government of the rebel States has no proof to support it, nor was any offered except a telegram to Governor Parsons, of Alabama, relative to the action of the Alabama legislature on the constitutional amendment, and that the January preceding at least two months the passage of the act in question.

I will now recall one position assumed on this trial: that this court could not take into consideration the constitutionality or unconstitutionality of a law, but is bound by the act, and that the President is bound by the same principle in the execution of the laws. I cannot but condemn such a doctrine as alike destructive to good morals, the life and spirit of the government, and the liberty and independence of the citizen. An act in violation of the Constitution is no law at all, and has no claim to obedience from either the citizen, the Executive, or the judge. Its resistance must be, it is true, made in a peaceful and lawful way. That way is by bringing the question before the proper tribunal for adjudication. The doctrine is quite as abhorrent as the assertion that the Senate are a law unto themselves; both deserve the condemnation of a free people. I have, in coming to my conclusion, been governed by the Constitution and laws. It has been my purpose to make a faithful application of the law to the acts charged and the testimony produced.

The position of a senator as a judge in a court of impeachment is one of personal responsibility. He can neither shun it nor escape from it in any way, and is no more bound by the wishes and purposes of those outside of the court than is a juror or a judge. Any efforts to bias or influence his judgment by threats or appeals to his personal prejudices or party affiliations or demands are not less pernicious to the ends of justice than personal violence or bribery to accomplish the same results. To silence strict and impartial justice by the clamor for political ends, is at once to poison the moral sentiments of the nation and overthrow the respect of the people for the sanctity of law.

In arriving at my conclusion I have been guided by what I cannot but regard as the truth by which my decision must alone be controlled. To a discriminating public and the just judgment of posterity, I trust with confidence. The slanders of the partisan, the desertion of friends, I can endure if it shall become necessary. I cannot shun the ever-watchful presence of God, and cannot afford to disregard his voice; nor can I dare to become a fugitive from myself through time and eternity. The interests and preservation of my country and the priceless boon of liberty committed to it are objects too sacred to be trusted to the passions of the hour against the demands of conscience and the authority of law.

OPINION OF MR. SENATOR FRELINGHUYSEN.

There is no more responsible duty than that of trying the question whether the Chief Magistrate of a great nation, who holds his office under the Constitu tion and by the suffrages of the people, shall be deposed. On the one hand, the result of the issue is serious to the individual who is on trial, reaches to the rights of every citizen, may affect the maintenance of the checks, balances, and even the stability of the government. On the other hand, to suffer the Executive successfully to assert the right to adjudicate on the validity of laws, claimed to be inferentially, though not in terms contrary to the Constitution, and to execute such as he approves and violate such as he condemns, would be to permit the government to be destroyed. And since the issue whether the law shall be obeyed has been made before the country and before the world, to suffer the President defiantly, and to this hour persistently to disobey it, would be to surrender the supremacy of that sovereignty for the maintenance of which hundreds of thousands of loyal hearts have within the past few years ceased to beat. Walking along this narrow pathway, with perils on either side, one is only secure as he rests his hand on the firm support of duty.

We are but the agents of the people, authorized to act for them only in accordance with the Constitution and the laws. If we fail to protect the trusts committed to us, we are cowards; if we exceed our powers and assume to exercise our arbitrary will, we are usurpers. Having on questions as to the admission of evidence exercised all the liberality that was consistent with principle, and having held my opinion, subject to all legitimate influences, until the whole cause was closed, and the final vote about to be taken, I am now prepared briefly to express my views.

Senators are sworn in this case to do impartial justice according to the Constitution and the laws. The obligation thus imposed may not be disregarded. The Senate, while trying the President, are not only invested with the functions of a court and jury, but also retain their official characters as senators intrusted with the interests of the nation. Were this not so, the articles of impeachment might as well be tried before the quarter sessions of the District as before the Senate of the United States. We may not remove the President because we believe the welfare of the nation would thereby be promoted, if the charges against him are not proven, but if those charges are proven, we may, for the well-being of the republic, abstain from the exercise of that clemency which in other judicial proceedings is reposed in the court and in the pardoning power, but which in the matter of impeachment is involved in the verdict of the Senate.

There are three questions to be determined, viz:

1. Has Andrew Johnson violated the law as charged?

2. Does such violation amount to what in the Constitution is denominated a high misdemeanor ?

3. Do the interests of the country demand the enforcement of the penalty for this violation of law, or demand the exercise of clemency?

There are eleven articles of impeachment presented against the President. I shall confine my remarks to the first three and the eleventh.

The first article charges Andrew Johnson with violating the "Act regulating the tenure of certain civil offices" by the removal of Secretary Stanton. The second and third articles charge a violation of the same act, by appointment of General Thomas as Secretary of War ad interim, and the eleventh article, as construed by the Chief Justice charges that the President violated the same act by "attempting to defeat its execution."

The first, second, and sixth sections of the act entitled "An act regulating the tenure of certain civil offices," are as follows :

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 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 mouth thereafter, subject to removal by and with the advice and consent of the Senate

SEC. 2. And be it further enacted, 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 misconduct 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 and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for his action in the case, and the name of the person so designated to perform the duties of such office. And 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, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended: Provided, horoever, that the President, in case he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office.

SEC. 6. And be it further enacted, That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, the making, signing, sealing, countersiguing, 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 shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court: Provided, That the President shall have power to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointment shall have been advised and consented to by the Senate.

The first, second, third, and eleventh articles of impeachment charge, in effect, that Edwis M. Stanton, being then Secretary of War, Andrew Johnson, on the 12th of August, 1867, suspended him from office under the provisions of the second section of said act; that within twenty days of the next meeting of the Senate, to wit, on the 12th of December, 1867, he reported to 'the Senate the reason for such suspension, and also that he had appointed General Grant Secretary of War ad interim. That on the 13th of January, 1868, the Senate having refused to concur in said suspension and having so notified Andrew Johnson, the said Edwin M. Stanton was restored to the functions of his said office, under said act; that Andrew Johnson then devised means to • prevent the execution of the said act by striving to induce General' Grant to refuse to surrender the said office to Mr. Stanton; that failing in this effort, on the 21st of February, 1868, he made the following orders for the removal of Mr. Stanton and for the appointment of General Thomas as Secretary of War ad interim:

EXECUTIVE MANSION, Washington, D. C., February 21, 1868.

SIR: By virtue of the power and authority vested in me as President, by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication.

14 I P-Vol. iii