tional limitation?" The term of the presidential office, by the Constitution, is four years, and that without regard to the contingency of holding or period of actual service. It describes the period for which the office lasts, and is without limitation. The tenure of his office is subject to the contingencies of death, resignation, or removal; but that relates to the condition of actual holding or period of service, and in no way affects the term or period for which he was elected. Now, the language of the proviso is, "shall hold for the term of the President by whom appointed." Mr. Stanton was appointed by Mr. Lincoln, whose term of office was absolutely four years, under the Constitution. The statute adopts the same word, term, and this makes the period of holding identical with the period of the presidential office, and does not subject it to the contingencies of the tenure of his office or the period of his service.

I pass the question whether Mr. Johnson is or not serving out his own or the term of Mr. Lincoln as unimportant in the view taken of the question. Their terms of office, as a period of time, were identical; and whether he is serving out Mr. Lincoln's term of office, as Vice President, upon whom devolve the duties of the office of President, by death, can have no influence upon the general fact of what was Mr. Stanton's term of office. In either case his term would be the same.

But if, as is contended by counsel for the President and those who adopt his views, the proviso failed to provide a tenure for Mr. Stanton, he being conceded to be in the body of the section, then as to him the words, "except as herein otherwise provided," fail to have any effect, and leave his tenure unaffected, and the same as that provided in the body of the section for the description of persons mentioned. I conclude, therefore, that the act did not fail of its object, namely, to regulate the tenure of office of every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate;" that Mr. Stanton's case was not excepted out of its provisions; that the proviso does regulate for him a tenure of office; but if it do not, then it is clear that it is regulated as is provided in the body of the section for "every person holding any civil office," &c., and that his removal was a clear violation of this act..

66

But it is said that it is at least doubtful if the act did affect Mr. Stanton's case, and that the effort to remove him from his office on the 21st of February last was an attempt on the part of the President which he might well believe he had a right to make; that the attempt did not succeed, and that it would be an abuse of power to remove him from his high office on grounds so slight.

But did the President truly believe that he had the right, that it was clear, and that the public welfare justified and demanded its exercise? He had refused his assent to the tenureof-office act, stating in his message, among his reasons expressed for refusal so to do, that its provisions deprived him of control over his Cabinet.

He had suspended Mr. Stanton under its provisions-so stated to the Secretary of the Treasury-as required by its provisions. He had communicated his reasons for this suspension, agreeably to the terms of the act, to the Senate. He had been advised of the action of the Senate upon that suspension, and of the acquiescence of General Grant in its determination of the case, and had witnessed the return of Mr. Stanton to his office and its duties in accordance with the imperative provisions of this act. With these acts and this knowledge upon the record it is difficult to believe that the President was acting in that measure of good faith and in the presence and under the pressure of a public necessity which would justify the defiance of a law of even doubtful import; that in this attempt to put aside a high officer of the Government without charge of misconduct in office, and after his purpose had been overruled by the Senate, it

is submitted there is apparent less of desire to consult the public interests and faithfully to execute the laws than to execute his own purposes upon a public officer who had incurred his personal displeasure. Nor is it easy to adopt the opinion that the charges and proof in support of these may properly be regarded as slight or unimportant.

A different question is presented on the second and third articles. On the 21st February, assuming to have removed Mr. Stanton, the President, in writing, authorized General Thomas to act as Secretary of War, and appointed him Secretary of War ad interim, there being no vacancy in that office, or pretense of vacancy, except the letter to Mr. Stanton of the same date, the Senate then being in session and not being advised upon the subject.

The President, in his answer, insists that at the date of the letter and its delivery to General Thomas there was a vacancy in the office of Secretary of War caused by removal; that, notwithstanding the Senate was in session, it was lawful and in accordance with long-established usage to empower said Thomas to act as Secretary of War ad interim; and that, if the tenure-of-office act be valid, in doing so he violated none of its provisions.

The President declares in his answer that so early as August last he had determined to cause Mr. Stanton "to surrender his office of Secretary of the Department of War." To that end, on the 12th of the same month, he suspended him from his office on pretense of misconduct in office, as now in his answer claimed, under the exercise of a power before unheard of, and certainly never before practiced or asserted by any of his predecessors, namely, the power to suspend from office indefinitely, and at his pleasure, not until meeting of the Senate, as incident to the right of removal;" and having so suspended, kept that officer out of his office and out of the public service for many months, and long after Congress and the Senate had convened, and for reasons stated in his message to the Senate, wholly inadequate, unsatisfactory, and unjustifiable in the judgment of that body, and which, if not trifling, were characterized by personal rather than public considerations.

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It will be observed that he at once invokes the aid of the tenure-of-office act to enable him to suspend from office a public officer who had incurred his personal displeasure, and afterward, when that had failed, attempts to remove him in defiance of its authority and in contempt of its validity. He at once invokes and violates the act of 1795. He professes to have appointed General Grant Secretary of War ad interim under it, and then violated it by retaining him in office contrary to its provisions.

He invokes the judgment of the Senate on the suspension of Mr. Stanton, and after that judgment has been pronounced against him, and under it the officer had returned to his duties in obedience to the act under which he had been suspended, he defies its authority by his removal, appoints General Thomas Secretary of War ad interim, holds him out to the country as the rightful Secretary of War, treats him as a constituent member of his Cabinet, ignores Mr. Stanton altogether, and thus subjects the conduct of the office of the Department of War to the dangers, embarrassments, and perils which may come of these conflicting pretensions, and must come if these pretensions are made good by his acquittal. If to these be added the spirit of defiance manifest in his message to the Senate of February 22 last, and his determination, at any and all hazards to the public interests, to cause a personally obnoxious public officer "to surrender his office," I am persuaded that the peril to our republican structure of government will have become imminent when such conduct in the President shall come to be regarded and tolerated as slight and trifling, and shall not, on the contrary, be held as high misdemeanors in office. Mr. Madison, in commenting upon this subject, says:

"I contend that the wanton removal of meritorious officers would subject him[the President] to impeachment and removal from his own office."

was not acquiesced in, and under which no removal de facto was effected; and whether the attempted removal or order of removal was justified by any usage arising under any provision of law. It is not pretended that any

act of Congress expressly confers this power while the Senate is in session, much less that the power is drawn from any express provision of the Constitution. No parallel in the history of the Government is shown or is believed to exist. The only case at all approaching it is that of Timothy Pickering, where the removal and the nomination to the Senate of his successor were simultaneous, and were essentially one and the same act, and was in and of itself the mode adopted by the President of obtain. ing the advice and consent of the Senate to the removal. But in this case was an attempted removal without reference to the Senate and independent of it, and the appointment of a Secretary ad interim, and no nomination to the Senate of a successor. Neither by the implication of the Constitution, laws, nor usage was the removal of Mr. Stanton and the designation of General Thomas as Secretary of War ad interim authorized.

But it is insisted that the removal of Mr. Stanton having created a vacancy the President was authorized to fill it temporarily by the designation of General Thomas, under the act of 1795, and that that act was not repealed by the act of 1863. This latter act repeals all acts and parts of acts inconsistent with its provisions; and it is said that its provisions are not inconsistent in some one or more particulars with the former act upon the same subject, and to that extent at least is not repealed. This construction is quite too narrow. The question is not whether the repealing act in any particular negatives the former act, but whether in its object and scope it was a substantial revision of the law upon the particular subject. If so, then, by well-established rules of legal interpretation, it does operate to repeal the former laws upon that subject.

Now, it is apparent from an examination of those statutes that the act of 1863 was such statute of revision. The act of 1792, upon the same subject, made provision for the case of vacancy by death, and certain temporary disabilities in the State, War, and Treasury Departments. That of 1795 provided that "in case of vacancy," &c.; and both alike in the cases contemplated provided that the Presi dent might "authorize any person or persons, at his discretion, to perform the duties," &c. The act of 1863 provides that in case of resig nation, death, absence from the seat of Gor ernment, or sickness in the heads of any of the existing Departments, the President may authorize any head of any other Department, &c., to perform the duties, &c.

The act of 1863 is a revision of the law on the subject, as it embraces the objects of both prior statutes; provides for vacancy by resignation, not provided for specifically, and changes the rule of both prior statutes as to the persons to be authorized to perform the duties

ident's guilt under the articles presented by the House of Representatives for usurpations of power not delegated by the Constitution, and for violation and obstruction of the laws of the land, and so guilty of high crimes and misdemeanors in his office, which, as a remedy for the present disorders which afflict the nation consequent upon them, and for the future security against the abuse of executive authority, demand, in harmony with the provisions of the Constitution, his removal from office.

OPINION

OF

HON. RICHARD YATES.

-

It is difficult to estimate the importance of this trial. Not in respect merely to the exalted position of the accused, not alone in the fact that it is a trial before the highest tribunal known among us, the American Senate, upon charges preferred by the immediate Representatives of the sovereignty of the nation, against the President of the United States, alleging the commission by him of high crimes and misdemeanors; it is not alone in these respects that the trial rises in dignity and importance, but because it presents great and momentous issues, involving the powers, limitations, and duties of the various Departments of the Gov. ernment, affecting the very form and structure of the Government, and the mightiest interests of the people, now and in the future.

It has been aptly termed the trial of the Constitution. Constructions of our Constitution and laws here given and precedents established by these proceedings will be quoted as standard authorities in all similar trials hereafter. We have here at issue, before this highest judicial tribunal, in the presence of the American people and of the civilized world, whether our Constitution is to be a landmark to the citizen, a guide to the statesman, and authoritative over the magistrate, or whether this is a land of anarchy, crime, and lawless usurpation. It is a trial which challenges the broadest comprehension of the statesman, the highest intellect and clearest discrimination of the jurist, and the deepest solicitude of the patriot. Its issues are to be determined by clearly ascertaining the duties and powers of the coördinate branches of the Government, all jealous of encroachments upon their functions, and all in danger if one shall usurp powers which by virtue of the Constitution and laws belong to others.

Although it seems to me that no man of honest judgment and true heart can have a possible doubt as to the guilt of the respondent in this cause, and although he has long since been indicted and found guilty in the judgment and conscience of the American people of a giant apostacy to his party-the party of Amer ican nationality and progress—and of a long series of atrocious wrongs and most daring and flagrant usurpations of power, and for three years has thrown himself across the path of the country to peace and a restored Union, and in all his official acts has stood forth with. out disguise, a bold, bad man, the aider and abettor of treason, and an enemy of his country; though this is the unanimous verdict of the loyal popular heart of the country, yet I shall strive to confine myself, in the main, to a consideration of the issues presented in the first three articles. Those issues are simply: whether in the removal of Edwin M. Stanton, Secretary of War, and the appointment of Lorenzo Thomas Secretary of War ad interim, on the 21st day of February, 1868, the Presi'dent willfully violated the Constitution of the United States, and the law entitled "An act regulating the tenure of certain civil offices," in force March 2, 1867.

Upon the subject of appointments to civil office the Constitution is very explicit. The proposition may be definitely stated that the President cannot, during the session of the Senate, appoint any person to office without the advice and consent of the Senate, except I

inferior officers, the appointment of whom may, by law, be vested in the President. The following is the plain letter and provision of the Constitution defining the President's power of appointment to office:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior

officers as they think proper in the President alone,

in the courts of law, or in the heads of Departments.'

Is it not plain, very plain, from the first clause above set forth, that the appointment of a superior officer, such as a Secretary of War, or the head of any Department cannot be made during the session of the Senate without its advice and consent? It is too clear for

argument that the Constitution does not confer the prerogative of appointment of any officer upon the President alone during sessions of the Senate, and that he can only appoint infeCongress, so that the appointment of a head rior officers even, by virtue of laws passed by of a Department cannot be made without the concurrence of the Senate, unless it can be shown that such appointment is, in the words of the Constitution, otherwise provided for;" and it is not pretended that any such other provision can be shown.

The framers of the Constitution wisely imposed this check upon the President to secure integrity, ability, and efficiency in public officers, and to prevent the appointment of men who, if appointed by the President alone, might be his mere instruments to minister to the purposes of his ambition.

I maintain that Congress itself cannot pass a law authorizing the appointment of any officer, excepting inferior officers, without the advice and consent of the Senate, it being in session at the time of such appointment. It is just as competent for Congress, under the clause which I have read, to invest the President with the power to make a treaty without the concurrence of two thirds of the Senate, which is, as all agree, inadmissible. Any law authorizing the class of appointments just mentioned, without the Senate's concurrence, would be just as much a violation of the constitutional provisions which I have read as would a law providing that the President should not nom

inate the officer to the Senate at all. No appointment is complete without the two actsnomination by the President and confirmation by the Senate.

I think my colleague [Mr. TRUMBULL] had not well considered when he made the statement in his argument that "the Constitution makes no distinction between the power of the President to remove during the recess and the sessions of the Senate."

The clause of the Constitution which I shall now quote shows very clearly that the power of the President to fill vacancies is limited to vacancies happening during the recess of the Senate:

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session."

His power to fill vacancies during the recess, without the advice and consent of the Senate at the time, proceeds from the necessity of the case, because the public service would suffer unless the vacancy is filled; but even in this case the commission of the temporary incumbent is to expire at the end of the next session of the Senate, unless the Senate, during said next session, shall have consented to his appointment. The reason of this limitation upon the President to the filling of vacancies happening during the recess, and why he cannot appoint during the session of the Senate without consent, is clearly because the Senate, being in session, may at the time of the nomination give its advice and consent. The provision that "the President shall have power to fill all vacancies during the recess of the

Senate by granting commissions which shall expire at the end of the next session," excludes the conclusion that he may create vacancies and fill them during the session and without the concurrence of the Senate. If this view is not correct, it would seem that the whole provision of the Constitution on this point is meaningless and absurd.

The conclusion of the whole matter is, that if the President issued an order for the removal of Mr. Stanton and the appointment of Thomas, without the advice and consent of the Senate, it being then in session, then he acted in palpable violation of the plain letter of the Constitution, and is chargeable with a high misdeorder removing Stanton, and of his letter of meanor in office. The production of his own authority to Thomas, commanding him to take possession of the War Office, are all the proofs necessary to establish his guilt. And when it appears, as it does most conclusively in the evidence before us, that he not only did not have the concurrence of the Senate, but its

absolute, unqualified dissent, and that he was notified of that dissent by a certified copy of a resolution to that effect, passed by the Senate, under all the forms of parliamentary deliberation, and that he still willfully and defiantly persisted, and does still persist in the removal of Mr. Stanton, and to this day stubbornly retains Thomas as a member of his Cabinet, then who shall say that he has not wickedly trampled the Constitution under his feet, and that he does not justly deserve the punishment due to his great offense?

That the facts stated are proved and substantially admitted in the answer of the President

to article first will not be denied by the counsel for the respondent nor by his apologists on the floor of the Senate.

The next question to which I invite attention is whether the President has intentionally violated the law and thereby committed a misdemeanor. Blackstone defines a misdemeanor thus:

"A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it.'

Misdemeanor in office, and misbehavior in office, or official misconduct mean the same thing. Mr. Madison says, in Elliott's Debates, that

"The wanton removal of meritorious officers would subject him [the President] to impeachment and removal from his own high trust."

Chancellor Kent, than whom no man living or dead ever stood higher as an expounder of constitutional law, whose commentaries are recognized in all courts as standard authority, and whose interpretations are themselves almost laws in our courts, says, in discussing the subject of impeachment:

"The Constitution has rendered him [the President] directly amenable by law for maladministration. The inviolability of any officer of the Government is incompatible with the republican theory as well as with the principles of retributive justice.

"If the President will use the authority of his station to violate the Constitution or law of the land, the House of Representatives can arrest him in his career by resorting to the power of impeachment."— 1 Kent's Com., 289.

Story, of equal authority as a commentator on the Constitution, says:

"In examining the parliamentary history of impeachments, it will be found that many offenses not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy."

Judge Curtis, one of the distinguished counsel for the respondent in this case, said in 1862: "The President is the Commander-in-Chief of the Army and Navy, not only by force of the Constitation, but under and subject to the Constitution, and to every restriction therein contained, and to every law enacted by its authority, as completely and clearly as the private in the ranks. He is Generalin-Chief; but can a General-in-Chief disobey any leg of his own country? When he can he superadds to his rights as commander the powers of a usurper, and that is military despotism;" * "the mere authority to command an army is not an quthority to disobey the laws of his country.

Besides, all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make nor suspend nor alter them. He cannot even make an article of war.”

Section three, article one, of the Constitution, says:

"The Senate shall have the sole power to try all impeachments."

I was present on the 15th day of April, 1865, the day of the death of the lamented Lincoln, when you, Mr. President, administered to Andrew Johnson the oath of office as President of the United States. He then and there swore that he would "preserve, protect, and defend the Constitution of the United States,' and take care that the laws should be faithfully executed."

On the 2d of March, 1867, Congress passed a law over the veto of the President entitled "An act to regulate the tenure of certain civil offices," the first section of which is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 may 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."

This law is in entire harmony with the Constitution. "Every person appointed or to be appointed" to office with the advice and consent of the Senate shall hold the office until a successor shall "in like manner," that is, "by the advice and consent of the Senate," be appointed and qualified. This is obviously in pursuance of the Constitution.

Now, if we construe this section independently of the proviso, we shall see that the removal of Mr. Stanton without the advice and consent of the Senate, and before his successor was appointed with the advice and consent of the Senate, was a misdemeanor, and was so declared and made punishable by the sixth section of the same act. And, again, if Mr. Stanton's case is excepted from the body of the act, and comes without the proviso, then his removal without the concurrence of the Senate, was a violation of the law, because, by the terms of the proviso, he was only subject to removal by and with the advice and consent of the Senate.

But my colleague [Mr. TRUMBULL] contends that Mr. Stanton was not included in the body of the section, because there is a proviso to it which excepts him and other heads of Departments from " every other civil officer," and yet he argues that he is not in the proviso itself, which certainly is strange logic. He argues that his tenure-of-office was given under the act of 1789, and that by that act the President had a right to remove him. If this be so, why did not the President remove him under that act, and not suspend him under the tenure-of-office act, and why did my colleague act under the tenure-of-office law in restoring Mr. Stanton?

It is claimed that Mr. Stanton is not included within the civil-tenure-of-office act, because he was not appointed by Mr. Johnson, in whose term he was removed; that he was appointed by Mr. Lincoln, and that Mr. Stanton's term expired one month after his (Mr. Lincoln's) death, and that Johnson is not serving part of Mr. Lincoln's term.

The true construction of the whole section, including the proviso, is that every person appointed and to be appointed, with the advice and consent of the Senate, is to hold the office until his successor shall have been in like manner appointed and qualified, except the heads of Departments, who are to hold their offices, not till their successors are appointed, but during the term of the President by whom they may have been appointed and for one month longer, and always "subject to removal by and with the advice and consent of the Senate."

Now, the only object of the proviso was to confer upon the Secretary of War, and other heads of Departments, a definite tenure of

office, and a different term from that given in the body of the act. Can anything be plainer than that the case of Stanton is embraced in the meaning of the section, and that he is entitled either to hold until his successor shall have been appointed, by and with the advice and consent of the Senate, or during the term of the President, not "in which he was appointed," but "during the term of the President by whom he was appointed?"

At the time of the passage of the act of March 2, 1867, Mr. Stanton was holding the office of Secretary of War for, and in the term of, Mr. Lincoln, by whom he had been appointed, which term had commenced on the 4th of March, 1865, and will end March 4, 1869. The Constitution defines the President's term thus: "He shall hold his office during the term of four years." It further says that the term of the Vice President shall be four years. In case of death or vacancy "the duties of his office shall devolve on the Vice President." When Mr. Lincoln died Mr. Johnson's term was not a new one, but he succeeded to Mr. Lincoln's office and performs its duties for the remainder of Mr. Lincoln's term. Mr. Stanton was appointed by Mr. Lincoln, and, according to the proviso, holds for the term of the President "by whom he was appointed, and one month thereafter," and can be removed only by the appointment of a successor, with the advice and consent of the Senate, before the expiration of his term.

If, as contended by the President, Mr. Stanton's term expired with the death of Lincoln, and Mr. Johnson did not reappoint or com. mission him, then from the death of Mr. Lincoln until the commencement of this trial there was no legal Secretary of War, and the Presi dent permitted Stanton to act without authority of law, to disburse millions of public money, and to perform all the various functions of Secretary of War without warrant of law, which would of itself be a misdemeanor. I believe it was the Senator from Maine [Mr. FESSENDEN] who said "dead men have no terms." When that Senator was elected for six years to the Senate, does it not remain his term though he should die or resign before its expiration, and would not his successor chosen to fill the vacancy serve simply for the remainder of his term, and not a new term of his own for six years? I could consent to the construction of the Senator from Maine if, instead of limiting the presidential term to four years, it had provided that his term should be four years or till the death of the President, in case of his decease before the expiration of the four years; but it does not so provide.

The meaning of the word "vice" in Vice President is, instead of" or "to stand in the place of;" " one who stands in the place of another." Therefore, Mr. Johnson succeeded, not to his own, but to Mr. Lincoln's terin, with all its conditions and incidents. Death does not terminate a man's term of office. If a tenant of a farm for a term of seven years dies at the end of his first year, the remainder of the lease vests in his legal representatives; so the remainder of Mr. Lincoln's term at his death vested in his successor, Mr. Johnson. It follows that Mr. Stanton's term, ascertained by the act of March 2, 1867, does not expire till one month after the 4th of March, 1869, and that his removal and the appointment of an officer in his place, without the advice and consent of the Senate, was a violation of the law.

The second section provides that when the Senate is not in session, if the President shall deem the officer guilty of acts which require his removal or suspension, he may be suspended until the next meeting of the Senate; and that within twenty days after the meeting of the Senate the reasons for such suspension shall be reported to that body; and if the Senate shall deem such reasons sufficient for such suspension or removal, the officer shall be considered removed from his office; but if the Senate shall not deem the reasons sufficient for suspension or removal, the officer shall

forthwith resume the functions of his office, and the person appointed in his place shall cease to discharge such duties.

That is to say, when any officer, appointed in manner and form as provided in the first section-that is, by and with the advice and consent of the Senate-is suspended, and the Senate does not concur in the suspension, such officer shall forthwith resume the functions of his office. Mr. Stanton, having been appointed by and with the advice and consent of the Senate, was suspended, but the Senate refused to concur in his suspension. According to the law he was then entitled to resume the functions of his office, but the President does not permit him to do so and refuses to have official relations with him, and has appointed and recognized as a member of his Cabinet another Secretary of War. Is not this a palpable violation of the very letter of the law? By what technical quibble can any Senator avoid the conviction of the culprit who thus defies a statute? If it is admitted that the President can legally "remove" Mr. Stanton, that proves too much, because the second section of the act in question declares that the President shall only "suspend" the officer, and in the case of suspension, and that only, and during recess, may an ad interim appointment be made. An ad interim appointment upon a removal is absolutely prohibited. As was well said by the Senator from Oregon, [Mr. WILLIAMS:]

"Vacancies in office can only be filled in two ways under the tenure-of-office act. One is by temporary or ad interim appointment during the recess of the Senate, the other is by appointment, by and with the advice and consent of the Senate, during the session."

Let us see-the Senate being the sole tribunal to try impeachments and to decide upon the validity and violation of this law-what action the Senate has already taken.

On the 12th day of August, 1867, the Senate then not being in session, the President suspended Edwin M. Stanton, Secretary of the Department of War, and appointed U. S Grant, General, Secretary of War ad interim. On the 12th day of December, 1867, the Senate being then in session, he reported, according to the requirements of the act, the causes of such suspension to the Senate, which duly took the same into consideration, and by an overwhelming vote of 35 to 6 refused to concur in the suspension, which action, according to the tenure-of-office act, reinstated Mr. Stanton in office. The President, bent upon the removal of Stanton, in defiance of the Senate and of the law, on the 21st day of February, 1868, appointed one Lorenzo Thomas, by letter of authority or commission, Secretary of War ad interim, without the advice and consent of the Senate, although the same was then in session, and ordered him (the said Thomas) to take possession of the Department of War and the public property appertaining thereto, and to discharge the duties thereof, and notified the Senate of his action. The Senate considered the communication, and, after debate, by a vote of 29 to 6, passed 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 to designate any other officer to perform the duties of that office ad interim.'

And now, after such action under our oaths, are we to stultify ourselves, and swallow our own words and resolutions passed in the most solemn manner? Can we say that the President did not violate the law? That he did not become liable to conviction for violating the has admitted, in his answer upon this trial, provisions of the tenure-of-office act, after he that he tried to rid himself of Stanton by complying with the act; and after he has acknowledged that he was acting under the law of March 2, 1867, as shown by his letter to the Secretary of the Treasury, dated August 14, 1867, as follows:

"SIR: In compliance with the act entitled 'An act to regulate the tenure of certain civil offices,' you are hereby notified that on the 12th instant IIon. Edwin M. Stanton, Secretary of War, was suspended from

his office as Secretary of War, and General Grant authorized and empowered to act as Secretary ad interim."

To show, also, how trifling is the plea of the President that the law did not apply to this case, after he had acted upon it as above stated by himself, and after he had reported the reasons for suspension within the twenty days, as required by the act, there is the further and still more conclusive proof that the forms of commissions and official bonds were

altered to conform to the requirements of the same tenure-of-office act, and under his own sign-manual issued to his appointees commissioned since its passage. If it be admitted, then, that Mr. Stanton's case did not come within the provisions of the first section of the act, yet is the President clearly guilty under the second section?

I shall now ask attention to the sixth section of the act, which is as follows:

"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; and upon trial and conviction thereof every person guilty thereof shall be punished by a fine not exceeding $10,000, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court."

If this section stood alone, who can deny that by his order to Thomas appointing him Secretary of War ad interim, and commanding him to turn Mr. Stanton out of office and take possession of the same, its books, and papers, he did commit a misdemeanor, especially when, by the very terms of this section, the issuing of such an order is expressly declared to be a high misdemeanor, and punishable by fine and imprisonment?

The second article charges that the President violated this law by issuing to General Thomas a letter of authority as Secretary of War ad interim. How, then, can my colleague use the following language:

"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, they do not constitute a misdemeanor, and are not forbidden by any statute."

How can he justify such a statement, when he admits that the letter of authority was issued, and it is specifically declared in the act to be a misdemeanor?

Again, it is said that the prosecution is bound to prove criminal intent in the President. Such is not the law. The act itself proves the intent, if deliberately done by the party committing it. Such is the construction and the practice in all courts. If any person voluntarily commits an unlawful act the criminal intent is presumed. The principle is as old as our civilization, recognized in all courts of our own and other countries, that any unlawful act, voluntarily committed by a person of sound mind and mature age, necessarily implies that the person doing it intends all the consequences necessarily resulting therefrom. The burglar who breaks into your house in the night, with revolver in hand, may plead for the burglary, larceny, and even murder itself, the not unworthy motive that his only purpose was to procure subsistence for his starving wife and little ones. Booth, the vilest of assassins, declared, while committing the bloodiest crime in time's frightful calendar, that he murdered a tyrant for the sake of humanity and in the sacred name of patriotism.

But it is not necessary to insist upon the technical rule that the criminal intent is to be presumed on proof of the act; for if there is one thing that is directly proved, that stands out in bold relief, that is plain as the sun at noonday, it is that the President willfully, wickedly, and defiantly violated the law; and that, after due notice and admonition, he wickedly and with criminal perverseness persisted in violating the Constitution and the laws, and in bold usurpations of power unsettling the proper checks, limitations, and balances between the departments of the Government; with malice aforethought striving to eject from office a faith

ful servant of the people, whose only crime was his loyalty, and substituting in his stead a man who was to be his willing instrument in thwarting the policy and legislation of the people's Representatives and in placing the Government again in the hands of rebels, who with corrupt hearts and bloody hands struck at the nation's life.

Edwin M. Stanton, Mr. Lincoln's faithful minister and friend, whom the people learned to trust and lean upon in the dark hours of the Republic, who wielded that mighty enginery by which our army of more than a million of men was raised, clothed, armed, and fed; who with the genius of a Napoleon comprehended the vast field of our military operations and organized war and victory with matchless skill -a man of unstained honor, spotless integrity, unquestioned loyalty, having the confidence of all loyal hearts in the country-this was the man who incurred the bitter hatred of Johnson because he opposed his usurpations and his policy and acts in the interest of traitors, and because, like a faithful sentinel upon the watchtower of liberty, he gave the people warning against Johnson's schemes of mad ambition.

In proof of the respondent's malicious intent to violate the law I refer you to his attempt to induce General Grant to aid him in open, avowed violation of the law, as proved in his letter to Grant dated January 31, 1868. He therein declared his purpose to eject Stanton, "whether sustained in the suspension or not," and upbraided Grant because, as he alleges, Grant agreed, but failed, to help him keep Stanton out by refusing to restore the office to Stanton, as by the second section of the act of March 2, 1867, he was required to do. He says:

"You had found in our first conference 'that the President was desirous of keeping Mr. Stanton out of office, whether sustained in the suspension or not.

You knew what reasons had induced the President

to ask from you a promise; you also knew that in case your views of duty did not accord with his own convictions it was his purpose to fill your place by another appointment. Even ignoring the existence of a positive understanding between us, these conclusions were plainly deducible from our various conversations. It is certain, however, that even under these circumstances you did not offer to return the place to my possession, but, according to your own statement, placed yourself in a position where, could I have anticipated your action, I would have been compelled to ask of you, as I was compelled to ask of your predecessor in the War Department, a letter of resignation, or else to resort to the more disagreeable expedient of suspending you by a successor."

That he intended to violate the law by preventing Mr. Stanton from resuming the func tions of his office, as provided by law, should the Senate non-concur in his suspension, is clearly proved by his other letter to General Grant of February 10, 1868, from which I quote as follows:

"First of all, you here admit that from the very beginning of what you term the whole history' of your connection with Mr. Stanton's suspension, you intended to circumvent the President. It was to carry out that intent that you accepted the appointment. This was in your mind at the time of your acceptance. It was not, then, in obedience to the order of your superior, as has heretofore been supposed, that you assumed the duties of the office. You knew it was the President's purpose to prevent Mr. Stanton from resuming the office of Secretary of War."

If you want intent proved, how can you more clearly do it than to use his own words that it was his " purpose to do the act, and that Grant knew that was his purpose from the very beginning, when Stanton was suspended?"

Is it necessary to dwell upon the subject of intent when in his own answer he confesses to having violated the law which expressly says that the officer, for good reasons only, should be suspended until the next session of the Senate, and coolly tells us that he "did not suspend the said Stanton from office until the next meeting of the Senate," as the law provided, "but by force and authority vested in him by the Constitution he suspended him indefinitely, and at the pleasure of the President, and that the order was made known to the Senate of the United States on the 12th day of December, 1867." In other words, he says to the Senate with most complacent effrontery,

"Your law says I shall only suspend Stanton to the end of twenty days after the beginning of your next session. I have suspended him indefinitely, at the pleasure of the President, and I defy you to punish or hinder me." With all this the respondent's counsel ask for proof of criminal intent.

He tells the law-making power of the sover eigu people that he sets up his pleasure against the positive mandates of law. He tells the Senate, "I do not acknowledge your law, which you by your votes on your oaths adopted and declared constitutional. I think it unconstitutional, and so said in my veto message, and I will not execute the law, but I will execute my veto; the reasons of my veto shall be my guide. I understand the constitutionality of the law better than Congress, and although my message vetoing the bill was overruled by two thirds of Congress, and though you have declared by law that I can only suspend Stan ton, I choose, of my own sovereign will, which is above law, to remove him indefinitely. Furthermore, your law says, that in case his suspension is not concurred in by the Senate, Mr. Stanton shall forthwith resume the functions of his office, and you have by resolution, a copy of which I confess to have received, refused to concur with me in suspending him. I shall not, however, suffer him to hold the office, and I have appointed Lorenzo Thomas Secretary of War, not with your advice and consent, but contrary to the same." This is the offense of the President which, in the judg ment of the President's apologists, is so **trifling" that we ought to pass it by in silence, or rather excuse by approving it in our verdict.

But what shall we say of the President's crime when to the violation of law he adds falsehood and deception in the excuses he gives for its violation? His plea that he violated the law because of its unconstitutionality and his desire to refer it to the Supreme Court is shown to be a mere subterfuge-an afterthought-by the fact that in August last, when he designated Grant to perform the duties of the War Office, he distinctly avowed that he was acting under the act of March 2, 1867; by the fact that he had caused the Departments to so alter the forms of commissions and bonds as to make them conform to this very statute; by the fact that he reported reasons for the suspension, as required in the act, in an elaborate message to the Senate; and, finally, by the fact that nowhere in said message does he intimate that he does not recognize the validity of the act, but argues distinctly that he proceeds under the same. He did not tell Senators in that message that the act was unconstitutional, and that he had suspended Stanton indefinitely. And I assert that every Senator was led to believe that it was the purpose of the President to regard the act valid, and to abide the judgment of the Senate. It was not until the ghost of impeachment, the ter rors of a broken oath, and removal from the high trust which he has abused, as a punishment for violated law, rose up to confront him that he resorted to the technical subterfuges of his answer that the law was unconstitutional, and the specious plea that his purpose in resist ing the law was to test its validity before the Supreme Court.

In the whole history of these transactions he has written as with a pen of steel, in dark and imperishable lines, his criminal intent to violate the law. First, he attempted to seduce General Grant to his purpose, but he indignantly refused; then General G. H. Thomas; then General Sherman; then General Emory; and, finally, he selected General Lorenzo Thomas, a man who was willing, as he testifies, to obey the President's orders;" and who, in pursuance of those orders, threatened to kick Stanton out;" and "if the doors of the War Office were barred against him" he would "break them down by force;" and who says on his oath that he would have executed his threats on the following day but for his arrest after his return from the masquerade ball.