tional, and he has detested the thirty-ninth and fortieth Congresses, because they have been of an opposite opinion. This trouble has grown out of his determination to govern the rebel States by his executive decrees in defiance of the wishes of the people of the United States expressed through the legisla tion of Congress; in other words, to be himself the ruling power in this regard. This is usurpation and tyranny, and I think it ought to be thus met and branded. Our position as the first free nation of the world demands it at our hands; and whatever may chance to be the result of this trial, whatever may be the future fortunes of those who are now sitting in judgment, I can desire no better authenticated claim to the free and enlightened approval of future ages than that I gave my vote against him on this article; nor do I think myself capable of any act that would shed greater honor on my posterity than thus to endeavor to vindicate for them and their posterity the rights of a free and independent people governing themselves within the limits of their own free Constitution.

OPINION OF MR. SENATOR JOHNSON.

Time does not permit an examination in detail of the several articles of impeachment. I content myself, therefore, with considering the legal questions upon which the most of them depend.

I. For what can the President be impeached? If the power was given without assigning the causes, it is obvious that he would be almost wholly dependent upon Congress, and that was clearly not designed. The Constitution consequently provides that impeachment can only be for "treason, bribery, or other high crimes and misdemeanors." For no act which does not fall within the legal meaning of those terms can impeachment be maintained. Political opinions, whatever they may be, when not made crimes or misdemeanors, are not the subjects of the power. If any such opinions can be legally declared crimes or misdemeanors, what are spoken, no matter by whom, when no force is used disturbing the public peace, certainly cannot be, such legislation being prohibited, not only by reason of the absence of any delegated authority to Congress, but because that department is expressly prohibited from so legislating by the very terms of the first of the amendments of the Constitution, providing that "Congress shall make no law" "abridging the freedom of speech." This guarantee extends to every citizen, whether he be in public or private life. Whatever a private citizen can say without responsibility to Congress, the President or any other official can say. The provision is intended to secure such freedom to all wi out regard to official station. The right is a personal one, for the exercise of which there is no responsibility. It is secured as absolutely to every person as the right of freedom of speech is secured to members of Congress by the sixth section of the first article of the Constitution, which says that "for any speech or debate in either house they shall not be questioned in any other place." Both provisions are upon the theory, proved to be correct by history, that a free government is ever best maintained (if indeed it can be maintained without it) by such unfettered freedom. Its possession by others than members of Congress is a necessary restraint upon that department, whilst its possession by its members is equally necessary to a proper exercise of their power. In both instances the right is placed beyond restraint.

If members of Congress in debate assail the President in disparaging and vituperative language-if they charge him with treason-a violation of every duty-a want of every virtue, and with every vice; if they even charge him with having been accessory to the murder of his lamented predecessor-charges calculated to bring him "into disgrace," "hatred," "contempt, and reproach"they are exempt from responsibility by any legal proceeding, because "freedom

of speech and debate" is their right-how can it be that the President is responsible for the speeches alleged to have been made by him at the places and times referred to in the tenth, and eleventh articles, when freedom of speech is equally secured to him? That such speeches, whether made by members of Congress or the President, are in bad taste, and tend to disturb the harmony which should prevail between the two departments of the government, may be conceded, but there is no law making them crimes or misdemeanors. This was attempted to be done, as far as printed publications were concerned, by the second section of the act of the 14th of July, 1798, (the sedition act.) The constitutionality of that law was denied by many of the most eminent men of the day, and the party which passed it was driven from power by an overwhelming majority of the people of the country, upon the ground that it palpably violated the Constitution. By its own terms, it was to continue but for a brief period, and no one in or out of Congress has ever suggested its revival. But the passage of the act proves that without such a law oral speeches or written publications in regard to any department of the government are not criminal offences.

If these views be sound, the articles which charge the President with having committed a high misdemeanor by the speeches made in Washington, St. Louis, and Cleveland, in 1862, are not supported-first, because there is no law which makes them misdemeanors; and, second, because if there was any such law it would be absolutely void.

II. That the terms crimes and misdemeanors in the quoted clause mean legal crimes and misdemeanors (if there could be any doubt upon the point) is further obvious from the provision in the third section of the first article of the Constitution, that, notwithstanding the judgment on impeachment, the party is liable to "indictment, trial, judgment, and punishment according to law." This proves that an officer can only be impeached for acts for which he is liable to a criminal prosecution. Whatever acts, therefore, could not be criminally prosecuted under the general law cannot be the grounds of an impeachment. Nor is this doctrine peculiar to the United States. It was held in the case of the impeachment of Lord Melville, as far back as 1806, and has never since been judicially controverted in England. The charges in that case were the alleged improper withdrawal and use of public funds intrusted to him as treasurer of the navy. By the managers it was contended that these were by law crimes and misdemeanors, and denied by his lordship's counsel. The impeachment evidently turned upon the decision of the question. The opinion of the judges was requested by the House of Lords, and their answer was, that they were not crimes or misdemeanors, and his lordship, on a vote, in the aggregate upon all the articles, of 1,350, was acquitted by a majority of 824.

III. Are, then, the acts alleged in the first eight articles crimes and misdemeanors ?

1. Are they so independent of the actual intent with which they were done? 2. If not, are they without criminality because of such actual intent?

I. The acts charged are the orders of the President of the 21st of February, 1868, removing Mr. Stanton as Secretary of War, and appointing General Thomas as Secretary ad interim. The President's authority for the first, his counsel contend is vested in him by the Constitution, and not subject to the power of Congress; and that if it was, and Congress had a right to pass the act of the 2d of March, 1867, "regulating the tenure of certain civil offices," that act did not take from him the power to remove Mr. Stanton. I will consider the second question first. What, then, in regard to Mr. Stanton is the true construction of that act? Did it leave the President's right to remove him as he possessed it before the act was passed? With all respect to the contrary opinion, I think that it clearly did.

Without referring now to the different views entertained by the House of Representatives and the Senate as to the propriety of including cabinet officers

within the restriction which the law imposes upon the President in relation to other civil officers, it seems to me to be perfectly clear, from the language of the act itself, that Mr. Stanton's case is not within such restriction. In the first place, the title of the act is the regulation of the tenure of certain (not of all) civil offices. In the second, the tenure prescribed in the body of the first section is, that every person holding a civil office under an appointment made by the President, with the advice and consent of the Senate, and who has duly qualified, is to hold his office until his successor shall in like manner be appointed and qualified. If the law stopped here, the cabinet would be embraced and hold by the same tenure. But from this tenure certain exceptions are made. The concluding part of the section is in these words: except as herein otherwise provided. These latter words mean the same thing as if they were in the beginning, instead of the close of the section. Place them in the beginning and no one could doubt their meaning.

It would then be clear that it was not the purpose to prescribe the tenure of all officers appointed by the President with the consent of the Senate, and that in regard to some a different one was to be provided. If this be right, and I do not see that it can be questioned, it follows that whatever tenure is differently prescribed as to other offices, these are not to be held by the tenure in the first section. Immediately succeeding the words of exception before quoted, follows the provision to which the exception refers, "that the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General," are to hold by a different tenure from that before defined. And this is, that they are to "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, of course, to removal by the President, with the approval of the Senate. That this proviso withdraws the offices specially enumerated from the operation of the enacting clause cannot be doubted. It has the same effect in this regard as if it had been the first section of the act instead of a proviso to that section. If it had been itself the first section, and what is now the first section without the proviso had been the second, then all would admit that the tenure of office provided by the first section as it stands would have nothing to do with the tenure of cabinet officers. In other words, that it was the object of the act to assign to these offices a tenure entirely distinct from that assigned to other civil offices.

The only inquiry that remains is, what is the tenure by which cabinet officers hold their places? That they are not to hold them for an unlimited period is evident. What, then, is the limitation of their title?

I. It commences, necessarily, with the date of their appointments.

II. It expires at "the end of the term of the President by whom they may have been appointed," and one month thereafter. Mr. Stanton was appointed by President Lincoln during his first term, by and with the advice and consent of the Senate. By virtue of that appointment, and by that alone, he was commissioned. He never received any other appointment or commission. If the act of the 2d of March, 1867, had passed during Mr. Lincoln's first term, and was constitutional, Mr. Stanton's term of office would have expired at the end of one month succeeding the termination of Mr. Lincoln's first term, with no other right afterwards to the office than in the nature of a tenancy at sufferance. The title which he could claim under the act of 1867 has long since ended. To enable him to hold the office against the wish of the President, by whom he was not appointed, in my judgment, would be a palpable violation of the law, equally inconsistent with its language and its object. Inconsistent with its language, because that says that the office is to be held "for and during the term of the President by whom" he was appointed, and Mr. Lincoln's term necessarily terminated with his life. Inconsistent with its object, because that clearly is to leave a President who comes into office at the termination, by what

ever cause, of the term of his predecessor, the unfettered right at the end of one month after such termination to select his own cabinet.

If the propriety (conceding Congress to have the power) be admitted of denying to the President the right exercised by all of his predecessors of removing a cabinet officer at pleasure, it would seem to be most improper and impolitic in regard to any such officer not appointed by himself. Responsible for the preservation of the Constitution, and the faithful executions of the laws, nothing could be more unjust and unwise than to force upon him a cabinet in whom he might have no confidence whatever, either for want of integrity or capacity, or both, and in whose selection he had no choice.

III. If there could be any doubt that the construction I give to the act is correct, it would be removed by the explanation of Senators Sherman and Williams, members of the committee of conference on the part of the Senate, when making their report. The Senate had by two votes decided that cabinet officers should, as always before, hold their places at the pleasure of the President, and that such was evidently the design of Congress when organizing the several departments. The Senate, therefore, excluded them altogether from the provisions of the bill; but the House insisted upon including them. It was this difference between the two houses which the conference committee was appointed to settle. In making the report, Mr. Sherman stated that to include them would in his opinion be practically unimportant, because "No gentleman, no man with any sense of honor, would hold a position as a cabinet officer after his chief desired his removal; and, therefore, the slightest intimation on the part of the President would always secure" his resignation. And he added, that by the proposition of the committee, such an officer would hold "his office during the life or the term of the President who appointed him," and that “ if the President dies the cabinet goes out; if the President is removed for cause by impeachment, the cabinet goes out; at the expiration of the term of the President's office the cabinet goes out; so that the government will not be embarrassed by an attempt by a cabinet officer to hold on to his office despite the wish of the President or a change in the presidency." And that this provision obviated "the great danger that might have arisen from the bill as it stood amended by the House."

Mr. Williams said that the House by its amendment had placed "the heads of departments on the same footing with other civil officers, and provided that they should not at any time be removed without the advice and consent of the Senate;" that this was objected to, because when "a new President came into office he might be compelled to have a cabinet not of his own selection;" and that the amendment proposed by the committee was, "that when the term of office expires the offices of the members of the cabinet shall also expire," at the end of one month thereafter. He further added, that "the report of the committee is intended to put the heads of departments upon the same footing with all the other officers named in the bill, with this exception, that their terms shall expire when the term of office of the President by whom they were appointed expires; that is the effect of the provision" Relying upon these statements, the Senate adopted the report of the committee, and the bill passed with the proviso. No senator intimated that these gentlemen had not placed a proper construction upon the proviso and consequently no senator suggested that the then members of the cabinet of the President who were not appointed by him, but by Mr. Lincoln, were either within the protection of the body of the section or of the proviso, and I do not think I am mistaken in the impression that the bill could not have been passed by the Senate without the understanding that Messrs. Sherman and Williams were right in their interpretation of it.

It also appears by the President's message of the 12th of December, 1867, given in evidence by the managers, that it was construed in the same way by every member of the cabinet, Mr. Stanton included. That gentleman being appointed by Mr. Lincoln and not by Mr. Johnson, his tenure of office ended one

month succeeding the death of the former. In the language of Mr. Sherman, when the President who appoints a cabinet officer "dies," the officer “ goes out." How, then, can the Senate convict the President of having criminally violated the act in question, when what he did in relation to Mr. Stanton was not within the prohibition of the act, according to the interpretation put upon it at the time it was being passed by the Senate itself; and yet this they will do if they find him guilty upon the articles which relate to his attempt to remove Mr. Stanton on the 21st of February, 1868.

IV. Did the President commit a crime or misdemeanor by his order of the 21st of February, 186S, appointing General Thomas Secretary ad interim? That appointment forms the subject of the charges in the second, third, and eighth articles. If I am right, that Mr. Stanton was not within the protection of the act of 1867, and could be removed at pleasure by the President, then the legal effect of his order of the 21st of February worked a removal, and of course made a vacancy in that department.

There being a vacancy, had not the President a right to fill it by an ad interim appointment? If he had, the articles in question are unsupported. 1. Independent of legislation, the President being, with a few exceptions, vested with the executive power of the government and responsible for the faithful execution of the laws, he must have the power by implication to provide against their temporary failure. And if this be so, then, upon the occurrence of a vacancy in office, which, if not at once supplied, will cause such a failure, he must have the right to guard against it. 2. But there is legislation which, in my judgment, clearly gives him the power to make the appointment.

On the contingency" of the death, absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of War," &c., the President, by the act of the 8th of May, 1792, section eighth, was authorized to appoint any person or persons to perform the duties of the said offices respectively "until a successor be appointed, or until such absence or inability by sickness shall cease."

This act provided for a vacancy caused by death in either of the three departments named, and not for one produced by any other cause. A vacancy, therefore, arising from resignation or removal or expiration of term of office was not provided for. The omission was supplied by the act of the 13th of February, 1795, which gives the President the same authority in the case of a vacancy, however produced. Like the act of 1792, it is confined to the State, Treasury, and War Departments, and differs from it in limiting the authority to a period of six months succeeding the vacancy. Both laws left unprovided for vacancies occurring in the other departments. But it appears by the evidence that such appointments were made by all the predecessors of Mr. Johnson in the departments not included within the acts referred to, as well as in those that were included. And there is nothing to show that their validity was at any time questioned by Congress. On such an appointment by President Buchanan of Judge Holt to the War Department, made during the session of the Senate, a resolution was passed calling upon him to state the authority under which he acted. This he did by the message of January 15, 1861. In that message many instances are mentioned of appointments of the kind in all the departments, as well during the session as in the recess of the Senate; and from that time to this impeachment the authority of the President had been considered established. For the appointment of Thomas, then, the President had the example of all of his predecessors.

To hold that he committed a crime or misdemeanor in making it would, I think, shock a proper sense of justice, and impute to every President, from Washington to Lincoln, offences for which they should have been impeached and removed from office. Such an imputation could not fail to meet the severe rebuke and condemnation of the country. But it is said that the act of 1795 was repealed