departments, and then in case of vacancy to supply such only as are occasioned by death or resignation, his designation of the Adjutant General of the army to supply temporarily a vacancy occasioned by removal was without authority. If the act of 1863 repealed the act of 1795 this would doubtless be so; but if it did not repeal it, then the President clearly had the right, under that act, which provided for the temporary discharge of the duties of the Secretary of War in any vacancy by any person, to authorize General Thomas temporarily to discharge those duties. The law of 1863, embracing, as it does, all the departments, and containing provisions from both the previous statutes, may, however, be construed to embrace the whole subject on which it treats, and operate as a repeal of all prior laws on the same subject. It must, however, be admitted that it is by no means clear that the act of 1863 does repeal so much of the act of 1795 as authorizes the President to provide for the temporary discharge of the duties of an office from which an incumbent has been removed, or whose term of office has expired by limitation before the regular appointment of a successor.

It has been argued that the tenure-of-office act of March 2, 1867, repealed both the act of 1795 and that of 1863, authorizing the temporary supplying of vacancies in the departments. This is an entire misapprehension. The eighth section of the tenure-of-office act recognizes that authority by making it the duty of the President, when such designations are made, to notify the Secretary of the Treasury thereof; and if any one of the Secretaries were to die or resign to-morrow the authority of the President to detail an officer in one of the departments to temporarily perform the duties of the vacant office, under the act of 1863, would be unquestioned. This would not be the appointment of an officer while the Senate was in session without its consent, but simply directing a person already in office to discharge temporarily, in no one case exceeding six months, the duties of another office not then filled.

It is the issuing of a letter of authority in respect to a removal, appointment, or employment "contrary to the provisions" of the tenure-of-office act that is made a high misdemeanor. As the order for the removal of Mr. Stanton has already been shown not to have been " contrary to the provisions of this act," any letter of authority in regard to it is not forbidden by the sixth section thereof.

Admitting, however, that there was no statute in existence expressly authorizing the President to designate the Adjutant General of the army temporarily to discharge the duties of the office of Secretary of War, made vacant by removal, till a successor, whose nomination was proposed the next day, could be confirmed, does it follow that he was guilty of a high misdemeanor in making such temporary designation when there was no law making it a penal offence or prohibiting it? Prior to 1863, as Mr. Lincoln's message shows, there was no law authorizing these temporary designations in any other than the three. Departments of State, Treasury, and War; and yet President Lincoln himself, on the 22d of September, 1862, prior to any law authorizing it, issued the following letter of authority, appointing a Postmaster General ad interim :

I hereby appoint St. John B. L. Skinner, now acting First Assistant Postmaster General. to be acting Postmaster General ad interim, in place of Hon. Montgomery Blair, now temporarily absent.

WASHINGTON, September 22, 1862.

ABRAHAM LINCOLN.

To provide for temporary disabilities or vacancies in the Navy Department, and for which no law at the time existed, President Jackson, during his administration, made ten different designations or appointments of Secretaries of the Navy ad interim. Similar ad interim designations in the Navy Department were made by Presidents Van Buren, Harrison, Tyler, Polk, Filmore, and others; and these appointments were made indiscriminately during the sessions

of the Senate as well as during its recess. As no law authorizing them existed at the time these ad interim appointments were made in the Navy and Post Office Departments, it must be admitted that they were made without authority of law; and yet who then thought, or would now think, of impeaching for high crimes and misdemeanors the Presidents who made them? President Buchanan, in a communication to the Senate, made January 15, 1861, on the subject of ad interim appointments, used this language :

Vacancies may occur at any time in the most important offices which cannot be immediately and permanently filled in a manner satisfactory to the appointing power. It was wise to make a provision which would enable the President to avoid a total suspension of business in the interval, and equally wise so to limit the executive discretion as to prevent any serious abuse of it. This is what the framers of the act of 1795 did, and neither the policy nor the constitutional validity of their law has been questioned for 65 years.

The practice of making such appointments, whether in a vacation or during the session of Congress, has been constantly followed during every administration from the earliest period of the government, and its perfect lawfulness has never, to my knowledge, been questioned or denied. Without going back further than the year 1829, and without taking into the calculation any but the chief officers of the several departments, it will be found that provisional appointments to fill vacancies were made to the number of 179 from the commencement of General Jackson's administration to the close of General Pierce's. This number would probably be greatly increased if all the cases which occurred in the subordinate offices and bureaus were added to the count. Some of them were made while the Senate was in session; some which were made in vacation were continued in force long after the Senate assembled. Sometimes the temporary officer was the commissioned head of another department, sometimes a subordinate in the same department. Sometimes the affairs of the Navy Department have been directed ad interim by a commodore, and those of the War Department by a general.

Importance is sought to be given to the passage by the Senate, before the impeachment articles were found by the House of Representatives, of the following resolution:

Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim

as if senators sitting as a court on the trial of the President for high crimes and misdemeanors would feel bound or influenced in any degree by a resolution introduced and hastily passed before an adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in passing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed on the trial, shelter himself under such a resolution. I am sure no honest man could. It is known, however, that the resolution coupled the two things, the removal of the Secretary of War and the designation of an officer ad interim, together, so that those who believed either without authority were compelled to vote for the resolution.

My understanding at the time was, that the act of 1863 repealed that of 1795 authorizing the designation of a Secretary of War ad interim in the place of a Secretary removed; but I never entertained the opinion that the President had not power to remove the Secretary of War appointed by Mr. Lincoln during his first term. Believing the act of 1795 to have been repealed, I was bound to vote that the President had no power under the law to designate a Secretary of War ad interim to fill a vacancy caused by removal, just as I would feel bound to vote for a resolution that neither President Jackson nor any of his successors had the power, under the law, to designate ad interim Postmasters General or Secretaries of the Navy and Interior prior to the act of 1863; but it by no means follows that they were guilty of high crimes and misdemeanors in making such temporary designations. They acted without the shadow of statutory authority in making such appointments. Johnson claims, and not without plausibility, that he had authority under the act of 1795 to authorize the Adjutant General of the army to perform temporarily the duties of Secretary of War; but if that act was repealed, even then he simply acted as his predecessors had done with

the acquiescence of the nation for forty years before. Considering that the facts charged against the President in the second article are in no respect contrary to any provision of the tenure-of-office act; that they do not constitute a misdemeanor, and are not forbidden by any statute; that it is a matter of grave doubt whether so much of the act of 1795 as would expressly authorize the issuing of the letter of authority to General Thomas is not in force, and if it is not, that President Johnson still had the same authority for issuing it as his predecessors. had exercised for many years in the Navy, Interior, and Post Office Departments, it is impossible for me to hold him guilty of a high misdemeanor under that article. To do so would, in my opinion, be to disregard, rather than recognize, that impartial justice I am sworn to administer.

What has been said in regard to the second article applies with equal force to the third and eighth articles: there being no proof of an unlawful intent to control the disbursements of the moneys appropriated for the military service, as charged in the eighth article.

Articles four, five, six, and seven, taken together, charge in substance that the President conspired with Lorenzo Thomas and other persons with intent, by intimidation and threats, to prevent Edwin M. Stanton from holding the office of Secretary of War, and by force to seize and possess the property of the United States in the Department of War; also that he conspired to do the same things contrary to the tenure-of-office act, without any allegation of force or threats. The record contains no sufficient proof of the intimidation, threats, or force charged; and as the President had, in my opinion, the right to remove Mr. Stanton, his order for that purpose, as also that to General Thomas to take possession, both peacefully issued, have, in my judgment, none of the elements of a conspiracy about them.

The ninth article, known as the Emory article, is wholly unsupported by evidence.

The tenth article, relating to the speeches of the President, is substantially proven, but the speeches, although discreditable to the high office he holds, do not, in my opinion, afford just ground for impeachment.

So much of the eleventh article as relates to the speech of the President made August 18, 1866, is disposed of by what has been said on the tenth article.

The only proof to sustain the allegation of unlawfully attempting to devise means to prevent Edwin M. Stanton from resuming the office of Secretary of War is to be found in a letter from the President to General Grant, dated February 10, 1868, written long after Mr. Stanton had been restored. This letter, referring to a controversy between the President and General Grant in regard to certain communications, oral and written, which had passed between them, shows that it was the President's intent, in case the Senate did not concur in Stanton's suspension, to compel him to resort to the courts to regain possession of the War Department, with a view of obtaining a judicial decision on the validity of the tenure-of-office act; but the intention was never carried out, and Stanton took possession by the voluntary surrender of the office by General Grant. Was this intent or purpose of the President to obtain a judicial decision in the only way then practicable a high misdemeanor?

It is unnecessary to inquire whether the President would have been justified in carrying his intention into effect. It was not done, and his entertaining an intention to do it constituted, in my opinion, no offence. There is, however, to my mind another conclusive answer to this charge in the eleventh article. The President, in my view, had authority to remove Mr. Stanton, and this being so, he could by removal at any time have lawfully kept him from again taking possession of the office.

There is no proof to sustain the other charges of this article. In coming to the conclusion that the President is not guilty of any of the high crimes and misdemeanors with which he stands charged, I have endeavored to be governed

by the case made without reference to other acts of his not contained in the record, and without giving the least heed to the clamor of intemperate zealots who demand the conviction of Andrew Johnson as a test of party faith, or seek to identify with and make responsible for his acts those who from convictions of duty feel compelled on the case made to vote for his acquittal. His speeches and the general course of his administration have been as distasteful to me as to any one, and I should consider it the great calamity of the age if the disloyal element, so often encouraged by his measures, should gain political ascendency. If the question was, Is Andrew Johnson a fit person for President? I should answer, no; but it is not a party question, nor upon Andrew Johnson's deeds and acts, except so far as they are made to appear in the record, that I am to decide.

Is

Painful as it is to disagree with so many political associates and friends whose conscientious convictions have led them to a different result, I must, nevertheless, in the discharge of the high responsibility under which I act, be governed by what my reason and judgment tell me is the truth and the justice and the law of this case. What law does this record show the President to have violated? Is it the tenure-of-office act? I believe in the constitutionality of that act, and stand ready to punish its violators; but neither the removal of that faithful and efficient officer, Edwin M. Stanton, which I deeply regret, nor the ad interim designation of Lorenzo Thomas, were, as has been shown, forbidden by it. it the reconstruction acts? Whatever the facts may be, this record does not contain a particle of evidence of their violation. Is it the conspiracy act? No facts are shown to sustain such a charge, and the same may be said of the charge of a violation of the appropriation act of March 2, 1867; and these are all the laws alleged to have been violated. It is, however, charged that Andrew Johnson has violated the Constitution. The fact may be so, but where is the evidence of it to be found in this record? Others may, but I cannot find it. To convict and depose the Chief Magistrate of a great nation, when his guilt was not made palpable by the record, and for insufficient cause, would be fraught with far greater danger to the future of the country than can arise from leaving Mr. Johnson in office for the remaining months of his term, with powers curtailed and limited as they have been by recent legislation.

Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, as several of those now alleged against the President were decided to be by the House of Representatives only a few months since, and no future President will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty.

OPINION OF MR. SENATOR GRIMES.

The President of the United States stands at the bar of the Senate charged with the commission of high crimes and misdemeanors. The principal offence

charged against him is embodied in various forms in the first eight articles of impeachment. This offence is alleged to consist in a violation of the provisions of the first section of an act of Congress entitled "An act regulating the tenure of certain civil offices," approved March 2, 1867, in this, that on the 21st day of February, 1868, the President removed, or attempted to remove, Edwin M. Stanton from the office of Secretary for the Department of War, and issued a letter of authority to General Lorenzo Thomas as Secretary for the Department of War ad interim.

The

The House of Representatives charge in their three first articles that the President attempted to remove Mr. Stanton, and that he issued his letter of authority to General Thomas with an intent to violate the law of Congress, and with the further "intent to violate the Constitution of the United States." President, by his answer, admits that he sought to substitute General Thomas for Mr. Stanton at the head of the Department of War; but insists that he had the right to make such substitution under the laws then and now in force, and denies that in anything that he has done or attempted to do, he intended to violate the laws or the Constitution of the United States.

To this answer there is a general traverse by the House of Representatives, and thereon issue is joined; of that issue we are the triers, and have sworn that in that capacity we will do "impartial justice according to the Constitution and the laws."

It will be perceived that there is nothing involved in the first eight articles of impeachment but pure questions of law growing out of the construction of statutes. Mr. Johnson's guilt or innocence upon those articles depends wholly on the fact whether or not he had the power, after the passage of the tenure-ofoffice act of March 2, 1867, to remove Mr. Stanton and issue the letter of appointment to General Thomas, and upon the further fact, whether, having no such legal authority, he nevertheless attempted to exercise it "with intent to violate the Constitution of the United States."

Mr. Stanton was appointed Secretary for the Department of War by Mr. Lincoln on the 15th day of January, 1862, and has not since been reappointed or recommissioned. His commission was issued to continue "for and during the pleasure of the President." His appointment was made under the act of August 7, 1789, the first two sections of which read as follows:

There shall be an executive department to be denominated the Department of War; and there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, and the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order and instruct.

There shall be in the said department an inferior officer, to be appointed by said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk of the Department of War; and whenever the said principal officer shall be removed from office by the President of the United States, and in any other case of vacancy, shall, during the same, have charge of the records, books, &c.

At the same session of Congress was passed the act of July 27, 1789, creating the Department of Foreign Affairs. The first two sections of the two acts are precisely similar except in the designations of the two departments. Upon the passage of this last act occurred one of the most memorable and one of the ablest debates that ever took place in Congress. The subject under discussion was the tenure of public officers, and especially the tenure by which the Secretaries of the executive departments should hold their offices. Without going into the particulars of that great debate, it is sufficient to say that the reasons assigned by Mr. Madison and his associates in favor of a "tenure during the pleasure of the President" were adopted were adopted as the true constitutional theory on this subject. That great man, with almost a prophetic anticipation of this case,