Mr. Johnson then became President. Did he have a term of office? Was he merely the tenant or holder of the term of another, and that other his predecessor, President Lincoln? Did Mr. Lincoln's term continue after his death, as has been argued? It is quite manifest that two persons cannot be said to have one and the same term of the Presidency at the same time. If it was Mr. Lincoln's term, it was not Mr. Johnson's. If it was Mr. Johnson's, it was not Mr. Lincoln's. If Mr. Johnson had no term, when do the Secretaries appointed by him go out of office, under the act of March 2, 1867? When does the one month after "the expiration of the term of the President by whom they have been appointed" expire? A President without a term of office would, under our system, be a singular anomaly, and yet to such a result does this argument lead. I am unable to give my assent to such a proposition.

If Mr. Stanton was legally entitled to hold the office of Secretary of War ou the 21st of February, 1868, as averred in the first article, he must have been so entitled by virtue of his original appointment by President Lincoln, for he had received no other appointment: If the act of March 2, 1867, terminated his office, he must, to be legally in office on the 21st of February, 1868, have been again appointed and confirmed by the Senate. He must, therefore, be assumed to have held under the commission by the terms of which he held "during the pleasure of the President for the time being." After the death of President Lincoln, then, he held at the pleasure of President Johnson, by his permission, up to the passage of the act of March 2, 1867, and might have been removed by him at any time. Did that act change his tenure of office without a new appointment, and transform what was before a tenure at will into a tenure for a fixed period? Granting that this could legally be done by an act of Congress, which may well be questioned, the answer to this inquiry must depend upon the terms of the act itself. Let us examine it.

It is obvious to my mind that the intention was to provide for two classes of officers; one, the heads of departments, and the other comprising all other officers, appointed by and with the advice and consent of the Senate. The act provides a distinct tenure for each of these classes; for the heads of departments a fixed term, ending in one month after the expiration of the term of the President by whom they were appointed; for all others an indefinite term, ending when a successor shall have been appointed and duly qualified. These two provisions are wholly unlike each other. Both are intended to apply to the present and the future, and to include all who may come within their scope. Does Mr. Stanton, by any fair construction, come within either? How can he be included in the general clause, when the Secretary of War is expressly excepted from its operation? The language is, "Every person holding any civil office, &c., shall be entitled to hold such office," " except as herein otherwise provided." Then follows the proviso, in which the Secretary of War is specifically designated, and by which another and a different tenure is provided for the Secretary of War. Surely, it would be violating every rule of construction to hold that either an office or an individual expressly excluded from the operation of a law can be subject to its provisions.

Again, does Mr. Stanton come within the proviso? What is the term therein fixed and established for the Secretary of War? Specifically, the term of the President by whom he was appointed, and one month thereafter. He was appointed by President Lincoln, and the term of President Lincoln existing at the time of his appointment expired on the 4th of March, 1865. Can any one doubt that had a law been in existence on that day similar to that of March 2, 1867, Mr. Stanton would have gone out of office in one month thereafter? The two terms of Mr. Lincoln were as distinct as if held by different persons. Had he been then reappointed by Mr Lincoln, and confirmed, and a law similar to that of March 2, 1867, been then in existence, is it not equally clear that he would have again gone out of office in one month after the expiration of Mr. Lincoln's cond term? If so, the only question would have been whether Mr. Lincoln's

term expired with him, or continued, notwithstanding his death, until the 4th day of March, 1869, although he could no longer hold and execute the office, and although his successor, elected and qualified according to all the forms of the Constitution, was, in fact and in law, President of the United States. How could all that be, and yet that successor be held to have no term at all? To my apprehension such a construction of the law is more and worse than untenable. The word "term," as used in the proviso, when considered in connection with the obvious design to allow to each person holding the presidential office the choice of his own confidential advisers, must, I think, refer to the period of actual service. Any other construction might lead to strange conclusions. For instance, suppose a President and Vice-President should both die within the first year of the term for which they were elected. As the law now stands, a new election must be held within thirty-four days preceding the first Wednesday of December then next ensuing. A new term of four years would commence with the inauguration of the new President before the term for which the preceding President was elected had expired. Do the heads of departments appointed by that preceding President hold their offices for three years of the term of the new President and until one month after the expiration of the term for which such preceding President was elected? Such would be the consequence of giving to the word term" any other meaning than the term of actual service. It must be evident, therefore, that the word "term" of the President, as used in the proviso, is inseparable from the individual, and dies with him.

If I am right in this conclusion, Mr. Stanton, as Secretary of War, comes neither within the body of the section nor within the proviso, unless he can be considered as having been appointed by Mr. Johnson.

Words used in a statute must, by all rules of construction, be taken and understood in their ordinary meaning, unless a contrary intention clearly appears. As used in the Constitution, appointment implies a designationan act. And with regard to certain officers, including the Secretary of War, it implies a nomination to the Senate and a confirmation by that body. A Secretary of War can be appointed in no other manner. This is the legal meaning of the word appointed. Is there any evidence in the act itself that the word appointed as used in the proviso was intended to have any other meaning? The same word occurs three times in the body of the section, and in each case of its use evidently has its ordinary constitutional and legal signification. There is nothing whatever to show that it had, or was intended to have, any other sense when used in the proviso. If so, then it cannot be contended that Mr. Stanton was ever appointed Secretary of War by Mr. Johnson, and he cannot, therefore, be considered as included in the proviso. The result is, that he is excluded from the general provision because expressly excepted from its operation, and from the proviso by not coming within the terms of description. It not unfrequently happens, as every lawyer is aware, that a statute fails to accomplish all the purposes of those who penned it, from an inaccurate use of lauguage, or an imperfect description. This may be the case here. But when it is considered that this proviso was drawn and adopted by eminent lawyers, accustomed to legal phraseology, who perfectly well knew and understood the position in which certain members of Mr. Johnson's cabinet stood, not appointed by him, but only suffered to remain in office under their original commissions from President Lincoln; and when it is further considered that the object of that proviso was to secure to each President the right of selecting his own cabinet officers, it is difficult to suppose the intention not to have been to leave those officers who had been appointed by President Lincoln to hold under their original commissions, and to be removable at pleasure. Had they intended otherwise it was easy so to provide. That they did not do so is in accordance with the explanation given when the proviso was reported to the Senate, and which was received with unanimous acquiescence.

It has been argued that Mr. Johnson has recognized Mr. Stanton as coming

within the first section of the act of March 2, 1867, by suspending him under the provisions of the second section. Even if the President did so believe, it by no means follows that he is guilty of a misdemeanor in attempting to remove him, if that view was erroneous. The President is not impeached for acting. contrary to his belief, but for violating the Constitution and the law. And it may be replied that, if the President did entertain that opinion, testimony was offered to show that his cabinet entertained a different view. Whatever respect the opinion of either may be entitled to, it does not settle the question of construction. But a sufficient answer to the argument is that, whether Mr. Stanton comes within the first section of the statute or not, the President had a clear right to suspend him under the second section. That section applies to all civil officers, except judges of the United States courts, "appointed as aforesaid ;" that is, "by and with the advice and consent of the Senate ;" and Mr. Stanton was such an officer, whatever might have been his tenure of office. The same remark applies to the eighth section, in relation to the designation of General Thomas. That section covers every "person" designated to perform the duties of any office, without the advice and consent of the Senate. Both of these sections are general in their terms and cover all persons coming within their purview, whether included in the first section or not.

I conclude, then, as Mr. Stanton was appointed to hold "during the pleasure of the President for the time being," and his tenure was not affected by the act of March 2, 1867, the President had a right to remove him from office on the 21st of February, 1868, and, consequently, cannot be held guilty under the first article.

Even, however, if I were not satisfied of the construction given herein of the act of March 2, 1867, I should still hesitate to convict the President of a high misdemeanor for what was done by him on the 21st of February. The least that could be said of the application of the first section of that act to the case of Mr. Stanton is that its application is doubtful. If, in fact, Mr. Stanton comes within it, the act done by the President did not remove him, and he is still Secretary of War. It was, at most, an attempt on the part of the President, which he might well believe he had a right to make. The evidence utterly fails to show any design on the part of the President to effect his purpose by force or violence. It was but the simple issuance of a written order, which failed of its intended effect. To depose the constitutional chief magistrate of a great nation, elected by the people, on grounds so slight, would, in my judgment, be an abuse of the power conferred upon the Senate, which could not be justified to the country or the world. To construe such an act as a high misdemeanor, within the meaning of the Constitution, would, when the passions of the hour have had time to cool, be looked upon with wonder, if not with derision. Worse than this, it would inflict a wound upon the very structure of our government, which time would fail to cure, and which might eventually destroy it.

It may be further remarked that the President is not charged in the first article with any offence punishable, or even prohibited, by statute. The removal of an officer contrary to the provisions of the act of March 2, 1867, is punishable, under the sixth section, as a high misdemeanor. The attempt so to remove is not declared to be an offence. The charge is, that the President issued the order of February 21, 1868, with intent to violate the act, by removing Mr. Stanton. If, therefore, this attempt is adjuged to be a high misdemeanor, it must be so adjudged, not because the President has violated any law or constitutional provision, but because, in the judgment of the Senate, the attempt to violate the law is in itself such a misdemeanor as was contemplated by the Constitution, and justifies the removal of the President from his high office.

The second article is founded upon the letter of authority addressed by the President to General Lorenzo Thomas, dated February 21, 1868. The substantial allegations of the article are, that this letter was issued in violation

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of the Constitution and contrary to the provisions of the "act regulating the tenure of certain civil offices," without the advice and consent of the Senate, that body being then in session; and without the authority of law, there being at the time no vacancy in the office of Secretary of War.

In the view I have taken of the first article there was legally a vacancy in the Department of War, Mr. Stanton having been removed on that same day, and the letter of authority states the fact, and is predicated thereon. It is a well-established principle of law that where two acts are done at the same time, one of which in its nature precedes the other, they must be held as intended to take effect in their natural order. The question then is whether, a vacancy existing, the President had a legal right to fill it by a designation of some person to act temporarily as Secretary ad interim. The answer to this question will depend, to a great extent, upon an examination of the statutes.

The first provision of statute law upon this subject is found in section eight of an act approved May 8, 1792, entitled "An act making alterations in the Treasury and War Departments."

That section empowers the President, "in case of the death, absence from the seat of government, or sickness,” * * * of the Secretaries of State, War, or the Treasury," or of any officer of either of said departments, whose appointment is not in the head thereof, 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 absence or inability by sickness may cease."

It will be noticed that this act provides for one case of vacancy and two of temporary disability, making the same provision for each case. In neither case does it require any consent of the Senate, or make any allusion to the question whether it is or is not in session. It is viewed as a mere temporary arrangement in each case, and fixes no specific limit of time to the exercise of authority thus conferred. Nor does it restrict the President in his choice of a person to whom he may confide such a trust.

By an act approved February 13, 1795, chapter xxi, to amend the act before cited, it is provided "that in case of vacancy" in either of the several Departments of State, War, or the Treasury, or of any officer of either, &c., "it shall be lawful for the President," * * "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."

This act, it will be observed, applies only to vacancies, and does not touch temporary disabilities, leaving the latter to stand as before, under the act of 1792. It still leaves to the President his choice of the person, without restriction, to supply a vacancy; and while it provides for all vacancies, arising from whatever cause, like the law of 1792, it makes no allusion to the Senate, or to whether or not that body is in session. But this act differs from its predecessor in this, that it specifically limits the time during which any one vacancy can be supplied to six months.

Thus stood the law down to the passage of the act of February 20, 1863. (Stat. at Large, vol. 12, page 656.) In the mean time four other departments had been created, to neither of which were the provisions before cited applicable. And yet it appears from the record that almost every President in office since the creation of those departments had, in repeated instances, exercised the same power and authority in supplying temporary vacancies and disabilities in the new departments which he was authorized to exercise in those originally created, without objection, and even without remark.

The act of February 20, 1863, provides, "that in case of the death, resiguation, absence from the seat of government, or sickness of the head of any executive department, or of any officer of either of said departments," &c., "it

*

until

shall be lawful for the President to authorize the head of any other executive department, or other officer in either of said departments whose appointment is vested in the President," "to perform the duties a successor be appointed, or until such absence or disability shall cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months." Section two repeals all acts or parts of acts inconsistent, &c.

This act, it will be observed, covers, in terms, the cases provided for in the act of 1792, and one more-a vacancy by resignation. It limits the range of selection, by confining it to certain specified classes of persons. It limits the time for which any vacancy may be supplied to six months, and it extends the power of so supplying vacancies and temporary absence and disability to all the departments. Clearly, therefore, it repeals the act of 1792, covering all the cases therein enumerated, and being in several important particulars inconsistent with it. There was nothing left for the act of 1792 which was not regulated and controlled by the act of 1863.

How was it with the act of 1795? That act covered all cases of vacancy. Had it repealed the prior act of 1792? It had applied the limitation of six months for any one vacancy, and to that extent was inconsistent with the act of 1792, so far as a vacancy by death was concerned. But it left the cases of sickness and absence untouched. The power conferred by the act of 1792 in those cases remained, and was exercised, without question, in a multitude of cases, by all the Presidents, down to the passage of the act of 1863.

In like manner, the act of 1863, while it took out of the operation of the act of 1795 the case of vacancy by resignation, and made a new provision for it, left untouched vacancies by removal and by expiration of a limited tenure of office. Suppose the act of 1863 had provided in terms for only the two cases of absence and sickness specified in the act of 1792, will it be contended that in such a case the power conferred in that act in case of death would have been repealed by the act of 1863? If not, by parity of reason, the enumeration of a vacancy by resignation in the act of 1863 would extend no further than to take that case out of the act of 1795, leaving the cases of removal and expiration of term still subject to its operation. The conclusion, therefore, is, that whatever power the President had by the act of 1795 to appoint any person ad interim, in case of removal, remains unaffected by the act of 1863.

It has been argued that the authority vested in the President by the act of 1795 is repealed by the sixth section of the act of March 2, 1867, which prohibits and punishes "the making, signing, sealing, countersigning, or issuing of any commission, or letter of authority, for or in respect to any such appointment or employment." If the act of 1795 is repealed by this section, it must operate in like manner upon the act of 1863. The consequence would be that in no case, neither in recess nor in session, neither in case of vacancy, however arising, absence or sickness, would the President have power, even for a day, to authorize any person to discharge the duties of any office, in any of the departments, which is filled by presidential appointment. All must remain as they are, and all business must stop, during session or in recess, until they can be filled by legal appointment. This could not have been intended. The words above cited from the sixth section of the act of 1867 are qualified by the words "contrary to the provisions of this act." The language is "commission or letter of authority for or in respect to any such appointment or employment;" to wit, a "removal, appointment, or employment made, had, or exercised contrary to the provisions of this act." If, therefore, the removal is not contrary to the act, neither is the designation of a person to discharge the duties temporarily ; and a letter of authority issued in such a case is not prohibited.

In confirmation of this view it will be noticed that the eighth section of the act of March 2, 1867, expressly recognizes the power of the President, “without the advice and consent of the Senate," to "designate, authorize, or employ"