THE CONGRESSIONAL GLOBE. But I am unable to perceive any serious amThe authorities all biguity in that statute. agree that it is legitimate in construing any apparently obscure passage in the text of a new law to ascertain, first, the old law or usage; secondly, the evil or matter of complaint; thirdly, the remedy proposed in the new law. Now let us apply these rules to the statute of March 2, 1867: First. Under the old law or usage the President had the right, as we have seen, to make removals at will during the recess of the Sen ate. Secondly. The evil or subject-matter of complaint was that the President, now arraigned at your bar, had been, during the previous recess of the Senate, removing multitudes of faithful officers from their respective posts of duty and appointing untrustworthy successors, for purely partisan purposes, to aid him in making war on the measures adopted by Congress to secure the restoration of peace, harmony, and good government in the recently insurrectionary States. Thirdly. The remedy proposed was to fix by law the tenure of civil offices and regulate the manner of removals, as had been done from the beginning in relation to military officers, so as to prevent the President from making removals at discretion, even during the recess, without the approval of the Senate. Hence the first section enacts: 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 such 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 month thereafter, subject to removal by and with the advice and consent of the Senate." Does it effect the objects proposed? It evidently embraces all existing civil officers appointed by the President, by and with the advice and consent of the Senate, as well as all who may hereafter be appointed. It is evidently not its purpose to extend the legal term of service of any of them, for section four provides: "That nothing in this act contained shall be con- First, The learned casuistry to which we have lis- 66 term of the President by whom they may have been appointed" has, according to my apprehension, no application to the vital point in this controversy-the prohibition of removal. It relates to the limitation of the term of ser vice, and nothing else. I have not been able to perceive anything in the legislative history attending the passage of this act inconsistent with this construction. It is substantially this: the Senate passed the bill prohibiting the removal of all civil officers except the heads of Departments. The House struck out the exceptions; the Senate declined to concur; the House insisted. The bill was then sent to a joint committee of conference of the two Houses. They proposed a compromise, the House yielding something and the Senate yielding something. They finally agreed that the prohibition of removals by the President at discretion should apply to all, includ ing heads of Departments, but that the termination of the period of service of the latter should be fixed at one month after the close of each presidential term. They so reported, and their report was adopted by both Houses. I have now only to state that the President has officially construed the law as applicable to Secretary Stanton in his order of August 12, 1867, suspending him from otice, as provided in the second section of this act, and in his letter addressed to the Secretary of the Treasury, informing that officer that he had suspended said Stanton, as directed by the eighth section of this act. The letter is in these words: EXECUTIVE MANSION, WASHINGTON, D. C., August 14, 1867. SIR: In compliance with the requirements of the eighth section of the act of Congress of March 2, 1867. entitled "An act regulating the tenure of certain civil offices," you are hereby notified that on the 12th instant Hon. Edwin M. Stanton was suspended from office as Secretary of War and General Ulysses S. Grant authorized and empowered to act as Secretary of War ad interim. I am, sir, very respectfully, yours, ANDREW JOHNSON. He also admits its application to Stanton by "The respondent was also aware that this act [of This would seem to settle the question of the That the President did proceed to inquire, With this admission in his official answer to this article before our eyes, there can be no doubt that he did with malice prepense violate the true, known, and admitted intent of this law. Believing as I do that the President did thus officially place the correct construction on said law, and that said law is in harmony with the Constitution, and that he did willfully violate its provisions, which violation is declared by said law to be a "high misdemeanor," I do not perceive how it is possible for a Senator, on his oath, to avoid finding him guilty as charged in the first article of impeachment. In relation to the second article of impeachment, I may observe, the House of Representatives accuse the President of the committal of a high misdemeanor in office in appointing Lorenzo Thomas, Adjutant General United States Army, Secretary of War ad interim on the 21st day of February, 1868, there being no vacancy in said office, without the advice and consent of the Senate, the Senate being in session. The President in his answer admits that he did issue the order of appointment, as charged, without the advice and consent of the Senate, the Senate being in session, (Impeachment Trial, p. 27,) and justifies it by declaring that there was at the time a vacancy in said office, and that "It was lawful according to a long and well-established usage to empower and authorize the said Thomas to act as Secretary of War ad interim.' To support this justification, his counsel in the argument of this cause, and several Senators during this consultation, have cited two statutes which authorize temporary appointments. The first one was enacted May 8, 1792, and the second February 13, 1795. The first one is marked "obsolete" on the statute-book, and is admitted to have been repealed (if not before) by the act of February 20, 1863, which covers all the matter contained in the act of 1792, and is also inconsistent with it. This brings us to the consideration of the plea of authority to appoint Mr. Thomas to the office of Secretary of War ad interim during the session and without the consent of the Senate under the statute of 1795, even if a vacancy did legally exist, These are the exact words of the law: "That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said Departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, 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 vacancies be filled: Provided, That no one vacancy shall be supplied, in manner atoresaid, for a longer term than six months. Approved February 13, 1795."-Statutes-at-Large, vol. 1, page 415. I notice that the Senator from Maine, [Mr. FESSENDEN,] in the observations submitted by him, has, as I think, misconstrued this law by omitting in the text, as cited by him, an entire at a correct construction. It is in these words: clause, necessary to be considered in arriving "Whereby they cannot perform the duties of their said respective offices." These are words of limitation which the judge or commentator has no right to ignore or erase. Had they been omitted by Congress in enacting the law-did they not stand as a part of it-the Senator's rendering would be less vulnerable. But, giving these words their usual meaning and force, his rendering is manifestly erroneous. Apply ing this law to the actual case at bar, and omitting unnecessary descriptive phrases, it will read: That in case of vacancy in the office of the Secretary of War, whereby he cannot perform the duties of his said office, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person, at his discretion, to perform the duties of the said office, &c.: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months." Now, it may be observed that there are two classes of vacancies known to the statutes, and which may occur in the administration of the Departments: absolute legal vacancies in office by death, resignation, or expiration of term of service, whereby there are no officers in existence for the respective offices; and vacancies occasioned by the absence of officers from their respective offices, on account of sickness or absence from the seat of Government. The question therefore arises whether the vacancies contemplated and provided for by this statute are of the first or of the second class, or whether both are included. It appears to my mind perfectly clear that the first class are not intended to be included, and that the law is applicable only to cases of vacaney by the absence of officers from their effices, the said offices being legally filled, but the incumbents being incapable, for any sufficient reason, to perform their official duties. To construe this statute so as to apply to absolute vacancies in office would, as it appears to me, make it both useless and unconstitutional. For, in case of an absolute legal || vacancy in the recess of the Senate, the Constitution itself, in direct terms, authorizes the President to fill it temporarily, to continue for as long or as short a period as he may desire, not extending beyond the end of the next session of the Senate. Hence, if this law was intended to confer on the President the power to fill legal vacancies in office, occurring in the recess, it is nugatory-it is perfectly useless-for the President was previously vested by the Constitution with this authority. And to assume that the intent of this law was to provide for absolute legal vacancies in office occurring during the session of the Senate would be clearly unconstitutional; for the Constitution provides, as we have seen, that the President shall nominate, and by and with the advice and consent of the Senate shall appoint, all officers" whose appointment are not otherwise provided for in the Constitution itself, whether created by the Constitution or by law. The President must, therefore, obtain the consent of the Senate when in session before he can make an appointment to fill an absolute legal vacancy, with the exception of one class of officers only, inferior officers, who may be appointed by the President alone when Congress shall so provide by law. But the office of Secretary of War is not of this class. It is not an inferior office, and is declared by the law of 1789 to be a superior office, and the Secretary is styled "a principal officer." Congress could not, therefore, by law vest the appointment of this and similar officers exclusively in the President either for a short or a long period. To maintain that Congress could by law dispense with the advis ory power of the Senate would be equivalent to a declaration that Congress could by law amend the Constitution or abolish it entirely; for if Congress could suspend one of its provisions, they may suspend any or all of them. This would be reducing the authority of that great charter to the grade of a statute only. The limitation of such appointments to a period not exceeding six months could not change the constitutionality of the provision. For, if Congress could by a statute dispense with the advisory power over appointments during the sessions of the Senate for a single day, they could for a year or ten years or forever. It is not a question of time during which such appointment may run, but of constitutional power to deprive the Senate of an opportunity to exercise a judgment in the case. The Constitution vests this authority in the Senate, without regard to the length of time of the service of the appointee; and it does not confer the authority on the President to disregard it, nor on Congress the power to set aside either for a long or a short period. ment or the office of Secretary of War, or to unite it with any other Department temporarily, or to devolve the duties of Secretary of War on the head of another Department, or to reduce it in grade and devolve its duties on an inferior officer. He claims that Congress has by this law, approved August 7, 1789, vested in him the right "to authorize any person" (adopting the words of the statute) "at his discretion to perform the duties of" Secretary of War during the session of the Senate, there being an actual legal vacancy in said office, for a period not exceeding six months. Now, if this is the true meaning of this law, it authorizes the President, as we have seen, to dispense with the advisory power of the Senate, when in session, in the appointment of a great officer to fill "a principal" office for a period of six months; and, as this would be in direct conflict with the Constitution, the law as thus construed must be void. * * * * 66 * * * * To give this law force, we are therefore compelled to construe the word vacancy mentioned in the act as meaning a corporeal vacancy-the absence of the officer from his office the legal tenure still continuing in him as when the officer is out of the city; is disabled by insanity or sickness; is in custody or in prison, or is necessarily occupied with other duties. This interpretation is in perfect harmony with the literal and usual meaning of the word of the statute itself, "in case of vacancy in the office of Secretary" "of the Department of War" "whereby he cannot perform the duties of his 'said office it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person, at his discretion, to perform the duties of the said office,' " &c. And any other construction would render the qualifying phrase, whereby they cannot perform the duties of their said respective offices,' meaningless. It is a settled rule of construction that you must, if possible, give every word of a statute meaning and force. But what meaning can be attached to this clause if applied to an actual legal vacancy, as by death, resignation, removal, or expiration of legal term of service. In such cases the officer, and his legal functions as such, have ceased to exist. There is no officer in existence. To apply these qualifying words in such cases, whereby they cannot perform the duties of their said respective offices," is sheer nonsense. The law does not provide that in case of any vacancy, or all vacancies, but in case of vacancies of this description, "whereby the officers cannot perform the duties of their offices." 66 The same reasoning would apply to another qualifying phrase in this act, authorizing the President to make temporary appointments. It is in these words: "In case he shall think it necessary.' How is it possible to apply this language to an actual legal vacancy in a superior office, such as Secretary of State, Secretary of War, &c. The necessity of having an officer to fill these great offices was settled by Congress when the law was enacted creating them. If an actual vacancy occurred the necessity of filling it could not be a question. But if the officer was sick or absent from the city, "whereby he could not perform the duties of his said office," the question of necessity for the appointment of some one, by detail or otherwise, to perform these duties, until he recovered or returned to his post, would arise. And no one would be a more fit person to judge of that necessity than the President. I may observe here, in passing, that the allegation so frequently made during this trial by the President's counsel, and by Senators in this consultation, that "the practice" of mak Congress could, of course, abolish the War or any other Department created by law. They could also abolish the office of Secretary of War, or unite the War Department with some other Department temporarily or permanently, and require the head of that other Department to perform the duties of both, or might reduce it to the grade of a bureau in another Departing temporary appointments, the Senate being ment, and authorize an inferior officer to perform the duties now devolving on the Secretary; and probably might, by law, authorize the President to do this at his discretion; but this is not what is claimed by the President under the law of 1795. He does not claim that this authorizes him to abolish the War Depart in session, to fill absolute legal vacancies in office, "has been frequent and unbroken, almost from the formation of the Government," is not supported by facts. I have examined, as carefully as my time would permit, all that long list of cases of temporary appointments, supposed by the President's counsel to bear on this case, as they stand recorded in the printed record of this trial, beginning on page 575 and ending on page 582, and find that nearly all of them were made, as the list itself shows, on account of the absence or sickness of the regularly appointed officer. And nearly all of the residue were made to fill vacancies occurring during the recess of the Senate, and I do not find a single case of temporary appointment to fill a vacancy occasioned by a removal made during the session of the Senate. I therefore conclude that no such case exists, or it would have been produced, as the learned and numerous counsel had full access to the records of the Departments and of the chief executive office. Should it appear, therefore, that a case or two of temporary appointments had been made by previous Presidents, in a period of nearly eighty years, on account of an actual vacancy occurring by death or resignation, during the session of the Senate, it would not justify the unaccountable allegation of counsel and of Senators that the precedents were almost numberless, and that the chain was unbroken. Nor would one case or many of violated law, by others, if they really existed, justify the President in the performance of an illegal act. But, when his act is unsupported by a single case this attempt at justification is most remarkable and startling. After giving this subject the most careful examination of which I am capable, I am compelled to come to the conclusion that if there had been an existing legal vacancy in the office of Secretary of War, the President had no authority under the statute of 1795, or any other law, the Senate being in session, to fill it in the mode charged in the second article of impeachment and admitted in the President's answer. Much less had he the right to both create and fill a vacancy as charged in the first and second articles. These acts, whether taken jointly or separately, seem to me to be a clear violation both of the Constitution and the law. That they were performed by the President deliberately and willfully for the purpose of defeating the execution of the latter, according to its true intent and meaning, is, according to my judgment, fully established. I do not, therefore, see my way clear, under the solemnities of my oath, to find him innocent. ent." " The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." "Judgment in cases of impeachment shall not extend further than to removal from office and disqual ification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Our system of impeachment has not been transferred from any other Government, nor was its organization confided to Congress; but the cautious statesmen who founded our Government incorporated it in and built it up as part of the Constitution itself. They enumer ated its essential features and made it sui generis. 1. No person but civil officers of the United States are subject to impeachment. 2 The Senate is constituted the court of impeachment. 3. The Chief Justice of the United States is to preside over the court when the President is under trial, and the Vice President THE CONGRESSIONAL GLOBE. or President pro tempore of the Senate in all other cases. 4. No conviction can take place unless two thirds of the Senators present concur. 5. No impeachment can be made but for treason, bribery, or other high crimes and misdemeanors against the United States. 6. Judg. ment of impeachment cannot extend to death or other corporal punishment, or fine or imprisonment; but is restricted to removal from and disqualification to hold office; but the party convicted, nevertheless, to be liable and subject to indictment, trial, judgment, and punishment according to law. The offenders, of fenses, court, and punishment are all distinctly impressed with political features. But the prosecution has assumed two strange and untenable positions in the course of this trial. 1. That the Senate, in the performance of the present most important office and duty, is not a court. It is certainly not a legislative body, nor exercising legislative powers; it is not an advisory council connected in a common function with the President. What, then, is it? Most of the States had previously to the formation of the Constitution organized their several tribunals to try cases of impeachment, and by some they had been denominated courts of impeachment, and all had invested them with the powers and attributes of courts. They were universally held to be courts. The Constitution invests the Senate with the sole power To try is to examine to try all impeachments. a case judicially by the rules of law, and to apply them to the legal evidence taken in the trial, and to render the judgment of the law upon the claims of the parties according to the 66 tried," evidence. The phrases to try,” 66 convicted," "conviction," and "judgment" are all used in the Constitution in connection with impeachment and the proceedings in it. Those words, in connection with their context, establish, organize, and describe a court; and as applied to the Senate necessarily constitute it a court with jurisdiction to try all cases of impeachment. The Senate now and for this occasion is a court of impeachment for the trial of the President of the United States, and, like all other courts, is bound by the law and the evidence properly applicable to the case. impeachment for and conviction of treason, bribery, That is the category of all impeachable of No respectable authority has ever main- that to be impeachable the offense must be The idea of prosecuting and punishing an The other novel position of the prosecution, that on this trial-the Senate "is a law to itself,' is still more extraordinary. The power conferred by the Constitution on the Senate when trying impeachments is limited and wholly judicial, and the idea of combining with it any legislative power whatever is not only without any warrant, but is in direct hostility to the fundamental principle of our Government, which separates and makes mutually impassable all its legislative and judicial power. But the position that the Senate, when trying an impeachment, is "a law to itself," is bound by no law, may decide the case as it wills, is illimitable and absolute in the performance of special, restricted, judicial functions in a limited government, is revoltingly absurd. On the trial of any impeachment the Senate has no more authority to make or disregard law than it has to make or disregard facts; and it would be as legitimate and proper and decorous for the Managers, in relation to the evidence in this case, to announce to the Senate, You "You are witnesses to yourselves" as No court has any are a law to yourselves." right or power to make or disregard either law or evidence in the trial of any case; and a court which would act upon and avow that rule of conduct would be execrated by mankind. There is a particular and emphatic contrary obligation on this court, for each one of its members has individually made a solemn appeal to God "that in all things appertain-law, they have the power to fine for contempt, ing to the trial of the impeachment of Andrew Johnson, President of the United States, now pending, he will do impartial justice according to the Constitution and the laws." 66 One of the leading and inflexible laws which bind this court is embodied in the Constitution in these words: **No person shall be removed from office but on But this precise question has been decided to imprison for contumacy, and to enforce the for rescuing a prize at sea, recognized the The common law, in whole or part, has been The State of Maryland adopted the common Treason, bribery, and other offenses of the nature of high crimes and misdemeanors, to be impeachable, must be crimes against the general law of the United States, and punishable in their courts of the localities where committed. Thus, treason against the United States is an impeachable offense, whether it be committed in any State or Territory, or the District of Columbia; and so of any other act to be impeachable, it must be an offense by the where within its boundary. That an act done laws of the United States, if perpetrated anyin the portion of this District, ceded by the State of Maryland, would be an impeachable offense, and a similar act done in any place beside in the United States, would not be imSuch an offense would be against the peachable, is sustained by neither law nor District of Columbia, not against the United States. The law of impeachment is uniform and general, not various and local, and it has no phase restricted to the District of Columbia as has been assumed by the prosecution. reason. Then, besides treason and bribery, which are impeachable by the Constitution, to make any other act an impeachable offense it must not only be defined and declared to be an of fense, but it must be stamped as a high crime or misdemeanor by an act of Congress. The words "high crimes and misdemeanors" do not define and create any offense, but express, generally and vaguely, criminal nature; and of themselves could not be made to sustain an indictment or other proceeding for any offense whatever; but a law must define an offense, and affix one of those terms to it, to make it a constitutional ground of impeachment. And this is not all; the offense in its nature must have the type of heinous moral delinquency, or grave political viciousness, to make an officer committing it amenable to so weighty and unfrequent a responsibility as impeach ment. He may have been guilty of a violation of the Sabbath or of profane swearing, or of breaches of the mere forms of law; and if they had been declared offenses by act of Congress, with the prefix of "high crime" or "high misdemeanor" attached to them, they would not be impeachable offenses. They would be too trival, too much wanting in weight and State importance to evoke so grave, so great a remedy. Nor would any crime or offense whatever against a State, or against religion or morality, be a cause for impeachment, unless such an act had been previously declared by a law of Congress to be a high crime or a high misdemeanor, and was in its character of deep turpitude. It results from this view of the law of impeachment that, as none of the articles against the President charge him with treason or bribery, which are made impeachable offenses by the Constitution, they, or some one of them, must allege against him the doing of an act or acts which a law of Congress has declared to be an offense against the United States, and denominated it to be, and in its vicious nature it must be, a high crime or high misdemeanor, and that the President did that act with a criminal intent to violate the law, to authorize this court to convict him and pronounce judg ment that he be removed from office. I will now proceed to the examination of the offenses charged in the several articles. The first charges the President with the commission of a high misdemeanor in having sent a letter to Edwin M. Stanton, Secretary of the Department of War, dismissing him from office while the Senate was in session, in violation of the act of Congress "to regulate the tenure of certain civil offices." Article two charges the President with the commission of a high misdemeanor, in having delivered his letter to Lorenzo Thomas directing him to assume possession of the War Department, and to perform its duties ad interim, the Senate being then in session, and without its advice and consent, there being no vacancy in the office of Secretary of the Department of War, in violation of his oath of office, the Constitution of the United States, and the act of Congress aforesaid. Article four charges the President of unlawfully conspiring with Lorenzo Thomas, with intent, by intimidation and threats, to prevent Edwin M. Stanton, Secretary of War, from holding said office, in violation of the Constitution of the United States and the "act to define and punish certain conspiracies," whereby he committed a high crime in office. Article six charges the President of having conspired with Lorenzo Thomas, by force, to seize, take, and possess the property of the United States, in the Department of War, in violation of the civil office tenure act, whereby he committed a high crime in office. The third, fifth, seventh, and eighth articles charge the same matter, in somewhat different form, as is embodied in the other four articles; and I propose to consider the charges of the whole eight as growing out of the act of the President in sending his letter to Stanton removing him from the office of Secretary of War, and his letter to Thomas to take charge ad interim of it. Those two letters comprehend the substance of all the offenses charged against the President in the first eight articles. The ninth article charges the President, as Commander-in-Chief of the Army, of having attempted to induce General Emory, an army officer, to disobey the law of Congress requiring army orders from the President, or Secretary of War, to be transmitted through the General of the Army, and was guilty thereby of a high misdemeanor in office. To this article three answers may be made: 1. The act does not make an attempt to induce a military officer to disobey it, whether committed by the President or other person, any offense. 2. The evidence not only does not sustain, but disproves that charge against the President. 3. If the charge had been sustained by the proof, the President, as Commander-in-Chief, has the absolute and unquestionable right to issue military orders directly, and without the intervention of another officer, to any officer or soldier whatever; and the provision of the act on which this article is based, is an unconstitutional and flagitious attempt by Con gress to subordinate, in a measure, the Commander-in-Chief to the General of the Army. The tenth article is based wholly on passages taken from several public speeches made by the President, not in his official character but as a private citizen, to assembled crowds of the people, by whom he was called out and urged to address them. Whatever of improper matter, manner, or spirit are in those public addresses was provoked by gross insults then of fered to him, which, though not a justification, is much palliation. The President was then exercising a right which our fathers held inviolable, and which they intended should never be invaded, and for the protection of which they made this special amendment to the Constitution: "Congress shall make no law abridging the freedom of speech or the press." For the Senate, as a court of impeachment, to set up to be "a law to itself," and impeach the President as guilty of a high crime and misdemeanor for exercising a liberty which the founders of our Government deemed so valuable, so necessary to the preservation of their freedom, as to declare in their fundamental law should never be abridged, would violate that fundamental law and shock the free spirit of America. The basing of an article of impeachment on those speeches of the President, is calculated to bring down upon the whole proceeding the suspicion and revulsion of a free people, and it ought to be dis missed from this court as containing no impeachable matter. The eleventh article charges that Andrew' Johnson, President of the United States, was guilty of a high misdemeanor in declaring and aflirming in substance that the ThirtyNinth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same, but, on the contrary, was a Congress of only part of the States." This is not the language proved in the case to have been used by the President on any occasion; and if he had used it, he could not be impeached for it, because there is no law which makes the use of such language by the President, or any person, a high crime or misdemeanor or any offense, and any act of Congress declaring it to be an offense would be unconstitutional and void as abridging the freedom of speech. This article also charges "That the said Andrew Johnson, President of the United States. did, unlawfully and in disregard of the requirement of the Constitution that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled An act regulating the tenure of certain civil offices, by unlawfully devising and contriving means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stanton from said office." To this charge it may be answered-it is made in terms too general and vague to require any answer-that the unlawful means which the President devised and contrived to prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary of War, are not described or set out by any language whatever; and that act or any law of Congress does not make the devising or contriving of any means to prevent Edwin M. Stanton or any other civil officer whom the President has removed from office, and in whose removal the Senate has refused to concur, from resuming the duties of the office from which he has been so removed, a high crime or misdemeanor, or any offense; and said civil-office-tenure bill, so far as it restricts the President's power to remove said Stanton, is not consistent with, but in derogation of, the Constitution, and null and void. And the eleventh article charges also that Andrew Johnson, President of the United States, devised and contrived other unlawful means to prevent the execution of an act entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868, and for other purposes;" and also to prevent the execution of an act entitled "An act to provide for the more efficient government of the rebel States." Upon this last charge it may be observed-there is no description or facts setting out the means which the President devised and contrived to prevent the execution of either of the acts therein referred to—that the devising and contriving means to prevent the execution of said acts, or either of them, is not made a high crime or misdemeanor by them, or any law; that there is no evidence that he did devise and contrive any means to prevent the execution of said acts, or either of them; and that the act first referred to, in the part which the President is charged to have violated, and the last act, wholly, are unconstitutional, null, and void. Thus, it is shown on these several grounds, that there is nothing in the eleventh article on which the President, can be impeached. Some of the articles charge the President with the commission of high misdemeanors, and others of high crimes in the violation of his official oath and of the Constitution generally. The Constitution has no provision declaring a violation of any of its provisions to be a crime; that is a function of the legislative power, and it has passed no law to make violations of the Constitution, or of otficial oaths by the President, or any other officers crimes. The articles of impeachment seem to be drawn with studied looseness, duplicity, and vagueness, as with the purpose to mislead; certain it is, if their matter charged to be criminal had been separately, concisely, and distinctly stated, this court, and especially its many members who are not lawyers, would have had a much more ready comprehension of it. I will not take up and consider the other articles seriatim, but will group their matter under three heads: 1. The removal of Mr. Stanton from the office of Secretary of War; 2. the designation of General Thomas to take charge of that office ad interim; 3. the alleged conspiracies of the President with Thomas to prevent by intimidation and force Stanton from acting as Secretary of War, and to take possession of the property of the United States in his custody. The letter of the President to Mr. Stanton, informing him that he was thereby removed from office as Secretary of War, is charged to be a high misdemeanor, and in violation of the act to regulate the tenure of certain civil offices. The fifth and sixth sections of that act are the only parts of it which define and create any offenses, and I will quote them both in their order: "If any person shall, contrary to the provisions of this act, accept any appointment to, or employment in any office, or shall hold or exercise, or attempt to hold or exercise any such office or employment, he shall be deemed, and is hereby declared to be guilty of a high misdemeanor," &e. This provision might apply to General Thomas, the ad interim employé, but cannot include the President. The sixth section enacts "That every removal, appointment, or employment made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, countersigning, 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," &c. The President's letter to Mr. Stanton is not, in fact, his removal from office, though it was intended to procure it; but he refused obedience to it, persisted in holding the office of Secretary of War, and still continues in it and the actual discharge of its duties. The Presi dent's letter to him did not remove him in fact, and if the civil-office-tenure act be constitutional it did not in law; and he is now, and has been ever since, notwithstanding the President's letter, dismissing him, in fact and law, in office. It is contended by the prosecution that the THE CONGRESSIONAL GLOBE. letter of dismission is against the Constitution and the law, and has no legal effect whatever. Stanton was at its date in fact in possession of the office and performing its duties, and has so continued to the present time, and on this theory of the prosecution there has been no removal of him in fact or in law. And if that theory be unsound, and the President have the power by the Constitution to remove him, and the act of Congress proposing to restrict that power is consequently void, his removal was and is de jure valid. In one aspect there is a removal proper and constitutional; in the other there is no removal of Mr. Stanton. But these are the great questions in the case? Is the first section of the civil-office-tenure act in conflict with the Constitution, void, and of no effect? Does that section cover the case of the removal of Mr. Stanton? Did the President, in writing the letter of removal from office to Mr. Stanton, and the letter to General Thomas, directing him to take charge of the office ad interim, willfully and with criminal intent violate the civil-office-tenure bill? These propositions comprehend the substance matter of the first eight articles. The first section of that act is in these words: "That every person holding any civil office to which he shall have been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such 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 hereinafter provided: Provided. That the Secretary 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." The Constitution creates a Congress in which it vests all the legislative power of the Government of the United States; a President in whom it vests all the executive power, and a Supreme Court, and authorizes inferior courts to be established by Congress, in which it vests all the judicial power-except that it provides that the Senate shall constitute a court of impeachment, with jurisdiction to try all civil officers who might be impeached by the House of Representatives, and to adjudge amotion from and disqualification to hold office. Neither department can rightfully, or without_usurpation exercise any powers which the Constitu tion has vested in either of the other departments. Congress has the power, and is bound in duty to pass all laws necessary and proper to enable the President to execute the powers intrusted to him by the Constitution, and without which legislation there are many he could not execate, but it cannot confer on him any additional power, nor can it divest him of any. He forms a separate and coördinate department of the Government with Congress as another, and the courts as the third, and each derive all their powers from the Constitution alone. Neither is subordinate to the others, though the powers vested in Congress are the most various, extensive, vigorous, and popu lar, and necessarily it is the most aggressive and effective in its aggressions upon the other departments; the judiciary is the least so, though the inevitable tendency of all power, however lodged, is to augment itself. The power of appointment to office exists necessarily in all Governments, and is of an executive nature; and if the Constitution had contained no particular provision on this subject its language, "the executive power shall be vested in a President of the United States of America," would have imported the power of appointing to office, and by implication would have vested it wholly in the President. But the effect of this general language is qualified by a special provision: And he [the President] shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors," &c. This is restrictive and exceptional of the general power of appointment, previously by implication conferred on the President, and has no other operation than what is expressed in its words, and they being exceptional no implied "The executive power shall be vested in a Presi- The Constitution leaves the power of removal just as this general provision vests it, with the President alone. The power of Congress to make all laws which shall be necessary and proper for carrying into execution its enumerated powers, and all other powers vested by the Constitution in the Government of the United States, or any department or officer thereof, is purely a legislative power; and gives no authority to assume or interfere with any powers of the President, or the judicial department. Instead of being a power to assail them, its legitimate and literal office is to uphold their powers and to give facilities in their execution. That, or any other provision of the Constitution gives to Congress no warrant or pretext to interfere with the executive power of removal from office, vested by the Constitution in the President alone. The power of removal and the power of appointment to office, though both executive, are in their nature distinct and independent of each other. One, the power of appointment, was treated specially and separately from the other in the Constitution, it associating the Senate with the President in its exercise. But for this particular regulation of the power of appointment, it is most probable that no question as to the other distinct power of removal from office would ever have been made; and that all would have silently conceded that both powers being executive in their character, and all the executive power of the Government having been vested by the Constitution in the President, they properly appertained to him alone, and he would never have been challenged in the sole and exclusive exercise of either. But however that may be, the truth of this proposition cannot be successfully controverted: the provision of the Constitution associating the Senate with the President in the power of appointment, does not invest it with the same, or any connection with the power of removal: or authorize Congress to pass the civil-office-tenure act, or any other act that would impair the President's sole power and right to exercise it. But the whole subject of the power of removal from office came up for consideration in the First Congress, on the organization of the Department of Foreign Affairs, in 1789, and elicited a debate of great ability among the ablest men of the body, many of whom had been members of the Convention which framed the Constitution. Congress was much divided on the subject, but a majority of both Houses sustained the position that the Constitution conferred on the President the power to remove from office, and the contending parties made a compromise, by which the act organizing the Department recognized the power of the President to remove the head of this Department, in this language: "The chief clerk, whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the said Department." The supporters of the exclusive power of the President were opposed to any language being used in the act that seemed to confer this power on the President, and its opponents accepted language that conceded and recognized the President's power of removal without expressly deducing it from the Constitution. The act establishing the Department of War, with a provision in the same language recognizing the power of the President to remove the Secretary, was passed at a subsequent day of the same session, with but little and no serious opposition. Both those acts formally admit the sole power of the President to remove the heads of the respective Departments, but neither of them contains any language to confer that power on the President. The supporters of the principle that the Constitution vested it solely in him rejected from the bill organizing the Department of Foreign Affairs all language that seemed to confer it upon the President, and claimed and determined to maintain it as one of his powers solely from the Constitution; and the opponents of this principle, being willing to concede the power to the President, if the acts did not expressly state the power to be conferred on him by the Constitution, they were passed in their existing form, recognizing it as a presidential power to remove both Secretaries. The acts were not intended to confer this power on the President; they have no language whatever to that effect, yet they concede that he possessed it; and he could derive it only from the Constitution. This was as certain an assertion and establishment of the sole constitutional power of the President to remove from office, as if it had been expressed in the most direct terms; and no attempt has ever, before the passage of the civil-officetenure bill, been made in Congress to disturb this question as thus settled. From that time, every President has claimed and exercised the sole power of removal at all times as an executive power conferred by the Constitution. The great commentators on power as belonging to the President alone by it, Kent, Story, and Rawle, have treated this the provisions and effect of the Constitution itself, settled by the acts of Congress of 1789, the uniform and unchallenged practice of the Government, and the general acquiescence of the country. The Supreme Court has repeatedly, and without doubt or hesitation, recognized it as an established constitutional prinin his opinions, refers to it, as he does to the ciple; and Chief Justice Marshall many times, other and unquestioned powers of the President. Hamilton and Madison were among its great authors and firm defenders; it was conceded to be a settled principle by Clay, Calhoun, Benton, Wright, Clayton, and all the statesmen of America down to the passage of the civil rights bill; and Mr. Webster maintained, adhered to it, and advocated its exercise, while the Senate was in session and at all times, as Secretary of State under President Tyler. No attempt had ever before been made to arrest or qualify its unconditional exercise by the President, as well when the Senate was in session as when it was not. reason of America, guided by principle, authority, and experience, was unwilling to divest, unsettle, or change this presidential power by act of Congress or alteration of the Constitution because of being satisfied that it was essentially of the nature of an executive power and absolutely necessary to enable the President to perform his greatest duty, to see that the laws be faithfully executed. If a controverted constitutional question can ever be settled, the power of the President to remove from office at his own will has been beyond further legitimate question. The The sixth section of the civil-office-tenu e act before quoted declares that "Every removal, appointment, or employment, made, bad, or exercised contrary to the provisions of this act, and the making, signing, sealing, or countersigning 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," &c. But, if the Constitution invests the President with the sole and exclusive power to remove all the officers referred to in said act, his exercise of that power at all times is legitimate and makes a vacancy in the office, which his duty requires him to fill according to the Constitu |