IMPEACHMENT AT LAST.

The Grand Inquest of the nation, which had slept on so many enormities, was awakened by this open defiance. The gauntlet was flung into its very chamber, and there it lay on the floor. The President, who had already claimed everything for the Executive with impunity, now rushed into conflict with Congress on the very ground selected in advance by the latter. The field was narrow, but sufficient. There was but one thing for the House of Representatives to do. Andrew Johnson must be impeached, or the tenure-of-office act would become a dead letter, while his tyranny would receive a letter of license, and impeachment as a remedy for wrong-doing would be blotted from the Constitution.

Accordingly it was resolved that the offender, whose crimes had so long escaped judgment, should be impeached. Once entered upon this work, the House of Representatives, after setting forth the removal of Mr. Stanton and the appointment of General Thomas in violation of the law and Constitution, proceeded further to charge him in different forms with conspiracy wrongfully to get possession of the War Department; also with an attempt to corrupt General Emory and induce him to violate an act of Congress; also with scandalous speeches, such as no President could be justified in making; concluding with a general article setting forth attempts on his part to prevent the execution of certain acts of Congress.

Such is a simple narrative, which brings us to the articles of impeachment. Nothing that I have said thus far is superfluous; for it shows the origin of this proceeding, and illustrates its moving cause. The articles themselves are narrow, if not technical. But they are filled and broadened by the transgres. sions of the past, all of which enter into the present offences. The whole is an unbroken series with a common life. As well separate the Siamese twins as separate the offences now charged from that succession of antecedent crimes with which they are linked, any one of which is enough for judgment. The present springs from the past and can be truly seen only in its light, which, in this case, is nothing less than "darkness visible."

ARTICLES OF IMPEACHMENT.

In entering upon the discussion of the articles of impeachment, I confess my regret that so great a cause, on which so much depends, should be presented on such narrow ground, although I cannot doubt that the whole past must be taken into consideration in determining the character of the acts alleged. If there has been a violation of the Constitution and laws, the apologists of the President then insist that all was done with good intentions. In reply to this it is enough if we point to the past, which thus becomes a part of the case. But of this hereafter. It is unnecessary for me to take time in setting forth the articles. The abstract already presented is enough. They will naturally come under review before the close of the inquiry.

Of the transactions embraced by the articles, the removal of Mr. Stanton has unquestionably attracted the most attention, although I cannot doubt that the scandalous harangues are as justly worthy of condemnation. But the former has been made the pivot of this impeachment; so much so that the whole case seems to revolve on this transaction. Therefore I shall not err, if, following the articles, I put this foremost in the present inquiry.

This transaction may be brought to the touchstone of the Constitution, and also of the tenure-of-office act. But since the allegation of a violation of this act has been so conspicuous, and this act may be regarded as a congressional interpretation of the power of removals under the Constitution, I begin with the consideration of the questions arising under it.

TENURE-OF-OFFICE ACT.

The general object of the tenure-of-office act was to protect civil officers from removal without the advice and consent of the Senate; and it was made in express terms applicable to "every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate." To this provision, so broad in its character, was appended a proviso as follows:

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 month thereafter, subject to removal by and with the advice and consent of the Senate. As this general protection from removal without the advice and consent of the Senate might be productive of embarrassment during the recess of the Senate, it was further provided, in a second section, that during such recess any person may be suspended from office by the President on reasons assigned, which it is made his duty to report to the Senate within twenty days after its next meeting, and if the Senate concurs, then the President may remove the officer and appoint a successor; but if the Senate does not concur, then the suspended officer shall forthwith resume his functions.

On this statute two questions arise: first as to its constitutionality, and secondly as to its application to Mr. Stanton, so as to protect him from removal without the advice and consent of the Senate. It is impossible not to confess in advance that both have been already practically settled. The statute was passed over the veto of the President by a vote of two-thirds, who thus solemnly united in declaring its constitutionality. Then came the suspension of Mr. Stanton, and his restoration to office by a triumphant vote of the Senate, being no less than 35 to 6, thus establishing not only the constitutionality of the statute, but also its protecting application to Mr. Stanton. And then came the resolution of the Senate, adopted after protracted debate on the 21st February, by a vote of 27 to 6, declaring, that, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim ; thus for the third time affirming the constitutionality of the statute, and for the second time its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate and fixing them beyond recall. 66 Thrice is he armed who hath his quarrel just;" but the tenure-ofoffice act is armed thrice by the votes of the Senate. The apologists of the President seem to say of these solemu votes, "Thrice the brinded cat hath mewed;" but such a three-fold record of the Senate cannot be treated with levity. The question of the constitutionality of this statute complicates itself with power of removal under the Constitution; but I shall not consider the latter question at this stage It will naturally present itself when we consider the power of removal under the Constitution which has been claimed by the President. For the present I assume the constitutionality of the statute.

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ITS APPLICATION TO MR. STANTON.

I come at once to the question of the application of the statute to Mr. Stanton, so as to protect him against removal without the consent of the Senate. And here I doubt if any question would have arisen but for the hasty words of the senator from Ohio, [Mr. Sherman,] so often quoted in this proceeding.

Unquestionably the senator from Ohio, when the report of the conference committee of the two houses was under discussion, stated that the statute did not protect Mr. Stanton in his office; but this was the individual opinion of this senator, and nothing more. On hearing it I cried from my seat, "The senator

must speak for himself;" for I held the opposite opinion. It was clear to my mind that the statute was intended to protect Mr. Stanton, and that it did protect him. The senator from Oregon, [Mr. Williams,] who was the chairman of the conference committee and conducted its deliberations, informs us that there was no suggestion in the committee that the statute did not protect all of the President's cabinet, including, of course, Mr. Stanton. The debates in the House of Representatives are the same way. Without undertaking to hold the scales in which to weigh any such conflicting opinions, I rest on the received rule of law that they cannot be taken into account in determining the meaning of the statute. And here I quote the judgment of the Supreme Court of the United States, pronounced by Chief Justice Taney:

In expounding this law, the judgment of the court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law that passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed. (Aldridge vs. Williams, 3 Howard's Rep., 24.)

It is obvious to all acquainted with a legislative body that the rule thus authoritatively declared is the only one that could be safely applied. The Senate in construing the present statute must follow this rule. Therefore, I repair to the statute, stopping for a moment to glance at the public history of the times, in order to understand its object.

Already, we have seen how the President, in carrying forward his usurpation in the interest of the rebellion, has trifled with the Senate in regard to appointments, and abused the traditional power of removal, openly threatening good citizens in office that he would "kick them out," and filling all vacancies, from high to low, with creatures whose first promise was to sustain his barbarous policy. I do not stop to portray the extent of this outrage, constituting an impeachable offence, according to the declared opinion of Mr. Madison, one of the strongest advocates of the presidential power of removal. Congress, instead of adopting the remedy, suggested by this father of the Constitution, and expelling the President by process of impeachment, attempted to wrest from him the power he was abusing. For this purpose the tenure-of-office act was passed. It was deemed advisable to include the cabinet officers within its protection; but, considering the intimate relations between them and the President, a proviso was appended securing to the latter the right of choosing them in the first instance. Its object was, where the President finds himself, on accession to office, confronted by a hostile Senate to secure to him this right of choice, without obliging him to keep the cabinet of his predecessor; and accordingly it says to him, "Choose your own cabinet, but expect to abide by your choice, unless you can obtain the consent of the Senate to a change."

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Any other conclusion is flat absurdity. It begins by misconstruing the oper ative words of the proviso, that the cabinet officers shall hold their offices respectively for and during the term of the President by whom they are appointed." On its face there is no ambiguity here. It is only by going outside that any can be found, and this disappears on a brief inquiry. At the date of the statute Andrew Johnson had been in office two years. Some of his cabinet were originally appointed by President Lincoln; others had been formally appointed by himself. But all were there equally by his approval and consent. One may do an act himself, or make it his own by ratifying it when done by another. In law it is equally his act. Andrew Johnson did not originally appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their appointments, so that at the passage of the statute they stood on the same footing as if originally appointed by him. Practically and in the sense of the statute, they were appointed by him. They were a cabinet of his own choice,

just as much as the cabinet of his successor, duly appointed, will be of his own choice. If the statute compels the latter, as it clearly does, to abide by his choice, it is unreasonable to suppose that it is not equally obligatory on Andrew Johnson. Otherwise we find a special immunity for that President whose misconduct rendered it necessary, and Congress is exhibited as legislating for some future unknown President, and not for Andrew Johnson, already too well known.

Even the presidential apologists do not question that the members of the cabinet commissioned by Andrew Johnson are protected by the statute. How grossly unreasonable to suppose that Congress intended to make such a distinction among his cabinet as to protect those whose support of his usurpation had gained them seats which they enjoyed, while it exposed to his caprice a great citizen, whose faithful services during the war had won the gratitude of his country, whose continuance in office was regarded as an assurance of public safety, and whose attempted removal has been felt as a national calamity. Clearly, then, it was the intention of the statute to protect the whole cabinet, whether originally appointed by Andrew Johnson or originally appointed by his predecessor and continued by him.

I have no hesitation in saying that no other conclusion is possible without doing violence to the statute. I cannot forget that, while we are permitted "to open the law on doubts," we are solemnly warned "not to open doubts on the law." It is Lord Bacon who gives us this rule, whose obvious meaning is, that where doubts do not exist they should not be invented. It is only by this forbidden course that any question can be raised. If we look at the statute in its simplicity, its twofold object is apparent: first, to prohibit removals; and secondly, to limit certain terms of service. The prohibition to remove plainly applies to all. The limitation of service applies only to members of the cabinet. I agree with the excellent senator from Iowa [Mr. Harlan] that this analysis removes all ambiguity. The pretension that any one of the cabinet was left to the unchecked power of the President is irreconcilable with the concluding words of the proviso, which declares that they shall be subject to removal by and with the advice and consent of the Senate;" thus expressly excluding the prerogative of the President.

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Let us push this inquiry still further by looking more particularly at the statute, reduced to a skeleton, so that we may see its bones. It is as follows: (1.) Every person holding any civil office, by and with the advice and consent of the Senate, shall be entitled to hold such office until a successor is appointed.

(2.) If members of the cabinet, then during the term of the President by whom they may have been appointed and one month thereafter, unless sooner removed by consent of the Senate.

Mr. Stanton obviously falls within the general class, "every person holding any civil office;" and he is entitled to the full benefit of the provision for their benefit.

As obviously he falls within the sub-class, " members of the cabinet."

In this latter class his rights are equally clear. It is in the discussions under this head that the ingenuity of lawyers has found the amplest play, mainly turning upon what is meant by "term" in the statute. I glance for a moment at

some of these theories.

(1.) One pretension is that the " term," having expired with the life of President Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th May, 1865. As this is a penal statute, this construction makes it ex post facto, and therefore unconstitutional. It also makes Congress enact this absurdity that Mr. Stanton had for two years been holding office illegally, whereas he had been holding under the clearest legal title, which could no more be altered by

legislation than black could be made white. A construction which makes the statute at once unconstitutional and absurd must be rejected.

(2.) The quibble that would exclude Mr. Stanton from the protection of the statute, because he was appointed during the first "term " of President Lincoln, and the statute does not speak of "terms," is hardly worthy of notice. It leads to the same absurd results as follow from the first supposition, enhanced by increasing the retroactive effect.

(3.) Assuming that the statute does not terminate Mr. Stanton's right a month after President Lincoln's death, it is insisted that it must take effect at the earliest possible moment, and therefore on its passage. From this it follows that Mr. Stanton has been illegally in office since the 2d March, 1867, and that both he and the President have been guilty of a violation of law, the former in exercising the duties of an office to which he had no right, and the latter for appointing him, or continuing him, in office, without the consent of the Senate, in violation of the Constitution and the statute in question. Here is another absurdity to be rejected.

(4.) Assuming, as it is easy to do, that it is President Lincoln's " term," we have the better theory, that it did not expire with his life, but continues until the 4th of March, 1869, in which event Mr. Stanton is clearly entitled to hold until a month thereafter. This construction is entirely reasonable and in harmony with the Constitution and legislation under it. I confess that it is one to which I have often inclined.

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This brings me back to the construction with which I began, and I find Andrew Johnson is the President who appointed Mr. Stanton. To make this simple, it is only necessary to read "chosen " for appointed" in the statute, or, if you please, consider the continuance of Mr. Stanton in office, with the concurrence of the President, as a practical appointment or equivalent thereto. Clearly Mr. Stanton was in office, when the statute passed, from the "choice" of the President. Otherwise he would have been removed. His continuance was like another commission. This carries out the intention of the framers of the statute, violates no sound canon of construction, and is entirely reasonable in every respect. Or, if preferred, we may consider the "term" to be that of President Lincoln, and then Mr. Stanton would be protected in office until one month after the 4th of March next. But whether the "term "be of Andrew Johnson or of President Lincoln, he is equally protected.

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Great efforts have been made to show that Mr. Stanton does not come within the special protection of the proviso, without considering the irresistible consequence that he is then within the general protection of the statute, being “a person holding a civil office." Turn him out of the proviso and he falls into the statute, unless you are as imaginative as one of the apologists, who placed him in a sort of intermediate limbo, like a lost spirit floating in space, as in one. of Flaxman's Illustrations of Dante. But the imagination of this conception cannot make us insensible to its surpassing absurdity. It is utterly unreasonable, and every construction must be rejected which cannot stand the touchstone of

common sense.

THE SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED BY THE

STATUTE.

Here I might close this part of the case; but there is still another illustration. In suspending Mr. Stanton from office, as long ago as August, the President himself recognized that he was protected by the statute. The facts are familiar. The President, in formal words, undertook to say that the suspension was by virtue of the Constitution; but this was a dishonest pretext in harmony with so much in his career. Whatever he may say, his acts speak louder than his words. In sending notice of the suspension to the Secretary of the Treasury, and then again in sending a message to the Senate assigning his reasons for the