the Senate has to try is whether it was in fact knowingly committed, not whether the motives that led to it were one thing or another. To excuse or justify the intelligent commission of an offense on the ground that the motive was good would be monstrous, indeed. It would be to set aside the whole penal code at once, and permit every bad man and many good men to be judges in their own case. Society could not exist under such a puerile and capricious system. Besides, this motive, which the evidence places rather in the light of an afterthought than a ruling design accompanying and coeval with his resolution to remove Mr. Stanton, was properly to be addressed to the House of Representatives in order to prevent the finding of the impeachment. It was, if of any weight at all, matter of mitigation and excuse for committing the offense, and naturally addressed itself to the discretion of that body upon the question whether upon the whole it was worth while to bring him to trial; for surely it has no tendency to prove that he did not knowingly and willfully commit the offense. We cannot, therefore, sitting in our judicial capacity and acting on our oath to decide "according to law," give this pretense any weight in determining the issue.

The House had the constitutional right to bring the accused before us for trial. We are to try him according to the law and the evidence which the law makes applicable; and the House and the people in whose behalf they come before us have a right to demand of us that he shall be so tried; and our own oath makes it equally imperative upon us.

The third article charges that Mr. Johnson issued the order to General Thomas without|| authority of law while the Senate was in session, no vacancy having happened during the recess of the Senate, with intent to violate the Constitution of the United States.

This article distinctly raises the question whether, while the Senate is in session and not in recess, the President can lawfully under the Constitution appoint to an office without the advice and consent of the Senate:

I have already shown that under the naked || Constitution he cannot do this, and that the attempt is a violation of his oath.

But the tenure-of-office act forbids it, by declaring in the first section that an officer appointed by and with the advice and consent of the Senate "shall be entitled to hold his office until a successor shall have been in like manner appointed and duly qualified."

This provision of course renders Thomas's appointment unlawful, for there cannot be two incumbents lawfully in possession of the office of Secretary of War at the same time.

But it is sufficient under this article to say that the Constitution itself prohibited this appointment of Thomas, for the President could not make it during the session of the Senate without their advice and consent. was a willful attempt to usurp the powers of

It

the Senate, and therefore a gross violation of a high public duty attached to him by his oath of office, and a high crime tending toward and designed to accomplish a fundamental and dangerous revolution of the Gevernment in this respect.

The design here was to pass the office absolutely into the hands of Thomas for him to hold for an indefinite period of time, and independently, and to enable him to exercise all its functions as freely as if he had held a formal commission with the consent of the Senate; and the useless Latin phrase ad interim imparts to the act no qualification, and imposes no restraint on his powers. Under the then existing circumstances no temporary appointment could be made. There was no law whatever that provided for it. Mr. Stanton was not absent, but present in the office; he was not disabled by sickness, but was in full health; he had not resigned, but had refused to do so; he was not dead but alive.. And it is impossible to see what magic significance was attached or could be attached to the words ad interim. If the appointment made Thomas Secretary of War, as the accused claims, then his tenure was at the President's pleasure, and he needed no confirmation, and was to hold until turned out by him; no law forbade it, and the Constitution, as construed by Mr. Johnson, allowed it.

I cannot, therefore, hesitate to find him guilty under the third article.

The fourth, fifth, sixth, and seventh articles charge substantially but one offense-that of conspiring with Thomas unlawfully to prevent Mr. Stanton from remaining in the office of Secretary of War and exercising its functions, and unlawfully to seize and get possession of the property of the United States in the office.

I think this corrupt and unlawful agreement between Mr. Johnson and Thomas is fully made out by the evidence. made out by the evidence. The averment of the means by which the object was to be accomplished, whether by force, fraud, or intimidation, is not material. It is the agree ment entered into between them to do the unlawful act, to accomplish the forbidden end, that constitutes the crime. And it is not easy to see how this agreement could be more clearly proved. The delivery of the letter of authority to Thomas, and his acceptance of the same; the delivery to him of the order removing Mr. Stanton and the delivery thereof by Thomas to Mr. Stanton; the demand made by Thomas for possession; Mr. Stanton's peremptory refusal and order to Thomas to depart; his written order to Thomas forbidding him to issue any orders as Secretary of War; the report of this demand and refusal and prohíbitory order made by Thomas to Mr. Johnson, and the deliberate direction given by the latter after hearing this report from Thomas to go and take charge of the office and perform its duties"-all which things happened on the 21st of February-and the second and

A

menacing demand for the office by Thomas on the next day, all show, as clearly as human conduct can show, that just such an agreement was entered into by the accused and Thomas.

And it is made perfectly clear by the evidence that, but for the resolute firmness of Mr. Stanton, that agreement would have been carried into complete performance, and all the public property belonging to the office seized and possessed by Thomas, a mere intruder. I therefore find the accused guilty under the fourth, fifth, sixth, and seventh articles of the impeachment.

The eighth article differs from the second and third only in the averment that the order appointing Thomas was issued "with intent unlawfully to control the disbursements of moneys appropriated for the military service and for the Department of War."

I think such an intention fully made out by the proofs. General Thomas himself swears in his direct examination (page 414) that when the accused appointed him he remarked that he (Mr. Johnson) was "determined to support the Constitution and laws." This was a very gratuitous, idle remark, unless it implied a design to do something unusual, some dash against the legislation of Congress, which he so much disliked, and was, of course, uttered with reference to the tenure-of-office act, which was the only means by which Mr. Stanton kept the place he then designed to give to Thomas. He was resolved to "support," &c., against "' &c., against this act, and the declaration was an invitation to Thomas to aid him in trampling on that

statute.

On his cross-examination (page 432) General Thomas swears the President said in this interview, "I shall uphold the Constitution and the laws, and I expect you to do the same;" and adds, "I said, certainly, I would do it, and would obey his orders."

This, he says, was, as he supposes, "very natural, speaking to his commander-in-chief."

I think not. To my mind, this strange colloquy, which could not have taken place but in pursuance of Johnson's unlawful and audacious design, a design well understood by Thomas, evinces unmistakably, on the part of Thomas, the supple and reckless spirit of a dependent and flatterer, ready and willing to obey the slightest signal of the hand that feeds him. It is an assurance to Johnson that he is his tool, and will obey his wishes in all things. Contrast this low sycophancy with the manly and soldierly demeanor of General Emory when he repelled the suggestion of Mr. Johnson that he should accept orders from him directly, and that the requirement.of the act of 1863 to send them through the General of the Army was unconstitutional and contrary to the terms of his commission! The contrast is indeed striking. Thomas is already debauched and bows pliantly to the will of a master! and had he got possession of the War Office, no one can doubt for a moment that he would

have disbursed the moneys of the Department in obedience to Johnson's orders. Of course, the employment of such a person would effect ually subject the public moneys to the will of the employer; and there seems to be no other reason or motive for employing him except to give such control to the accused. He is not so ignorant as not to have foreseen, from all he heard and observed at that critical moment, that a military force would have to be employed and paid in order to carry out his design of ejecting Mr. Stanton and getting control of his office; and he claimed the right to control it in all respects. Such a provision naturally and necessarily suggested to his designing mind the acquisition of money to pay the expenses of the tremendous experiment he meditated; and I cannot doubt that the em ployment of Thomas, willing as he was to obey Mr. Johnson's orders, had in direct object the control of those moneys. I therefore find him guilty under the eighth article.

As to the ninth article, I do not think the proof sufficiently clear to justify me in saying that the accused pronounced the act of 1863, requiring him to transmit all orders through the General of the Army, unconstitutional, "with intent thereby to induce said Emory, in his official capacity as commander of the department of Washington, to violate the provisions of said act, and to take and receive, act upon and obey," the orders of Mr. Johnson not thus transmitted. The conduct of Mr. Johnson toward General Emory was highly censurable; but I do not think that particular intention is fully made out. The evidence raises a suspicion that such may have been the case, but is consistent with the supposition of the absence of such an intention, and the doubt must go to the benefit of the accused.

As to the tenth article, the evidence is conclusive that the accused made the popular harangues therein set forth. The essence of the charge is, that these discourses were "intended to set aside the rightful authority and powers of Congress, and to bring the Congress of the United States into disgrace, ridicule, hatred, contempt, and reproach, and to destroy the regard and respect of all the people of the United States for their authority."

Mr. Johnson was the lawful President of the United States; one of his sworn duties was to "take care that the laws be faithfully executed." The Thirty-Ninth Congress was a lawful Congress, as much so as any that ever sat. They were elected by exactly the same constituency who elected Mr. Johnson Vice President in 1864. Under their legislation the rebellion was put down, and Mr. Johnson himself, as military governor of Tennessee, had aided actively in carrying it out, and had had the benefit of the joint resolution of February, 1865, excluding from the count of electoral votes for President and Vice President those cast in certain of the States in rebellion. It did not, therefore, lie in his

mouth to deny, directly or indirectly, that the Thirty-Ninth Congress was a valid, constitutional Congress. None but such as contended that the Government was broken up by the secession and rebellion of the eleven Statesthat is, none but a traitor could consistently and decently make such a declaration. And yet he says, in his 18th of August speech, (referred to in the first specification,) made in the Executive Mansion, and addressed to the honorable Senator from Maryland [Mr. JOHNSON] and others, and without rebuke or reply from that learned Senator, "We have seen hanging upon the verge of the Government, as it were, a body called, or which assumes to be, the Congress of the United States, while, in fact, it is a Congress of only a part of the States; " plainly intimating that that Congres had no power to pass laws for the government of the rebel States, and were, in fact and in law, incompetent .to legislate for the whole country; a doctrine that openly encouraged sedition and disobedience to the laws in at least those States, if not in all others the laws which he alone, of all the people of the United States, was expressly bound by oath and the Constitution to see "faithfully executed."

Suppose a judge of a State court, charged with administering the laws, should go about among the people and tell them thus openly in public speech that the legislation of the State was no legislation-that their laws were all void, and that the citizens were not under obligation to obey them-would not the power of impeachment be at once brought to bear upon him? And why? Because, entertaining such opinions, he desecrates his office, and is therefore UNFIT longer to remain in it. Did we not sustain the impeachment against Judge Humphreys, of Tennessee, for that which was the exact equivalent of this charge, namely inculcating in a public speech the right of secession from the Union and of rebellion? What did he say, but that the Government of the United States was in law no Government for the seceded States? He had committed no act of treason, and the only proof was that he had thus spoken. And we convicted and removed him because he had thus spoken.

ties of his office with impunity? His counsel say yes. I say no. Society must be protected by law; and in order that that protection may exist the laws must be respected by those charged with their execution, not aspersed and trampled upon.

No question of the "freedom of speech" arises here. It is not because he speaks scoffingly and contemptuously of Congress as a body; not because he dissents from their legis lation merely and expresses that dissent; not because he utters against them the false and malicious calumny that the New Orleans riot, which he calls "another rebellion," "had its origin in the radical Congress;" not because he descends to the low business of lying about and scandalizing them, that the House has preferred this article against him, but because he inculcates the idea that their statutes are no laws, and not to be respected by the people as laws, and because he openly threatens (in his St. Louis speech) to "kick them out; to kick them out just as fast as he can," thus distinctly conveying the threat to use revolutionary violence against that Congress and to disperse them. It was an open threat to commit treason. And yet his counsel tell us that it was innocent and harmless.

To my mind the tenth article charges one of the gravest offenses contained in the impeachment. The feelings of the whole country were shocked and disgusted by the lawless speeches of this bully President. Men and women all over the land hung their heads in shame, and the wise and reflecting saw in him a coarse, designing, and dangerous tyrant.

I vote him guilty under the tenth article, and under each of the three specifications.

As to the eleventh article, it charges in substance that he attempted to prevent the execution of the tenure-of-office act, by unlawfully devising means to prevent Mr. Stanton from resuming the functions of his office, and to prevent the execution of the said clause in the appropriation act of 1867, and the reconstruction act of March 2, 1867.

In finding him guilty under this whole article I only consult his official record, his official history, and the other facts clearly in proof. His whole policy has been that the reconstruction act was both improper and unconstitu tional, and he has detested the Thirty-Ninth and Fortieth Congresses, because they have been of an opposite opinion. This trouble has grown out of his determination to govern the rebel States by his executive decrees in defiance of the wishes of the people of the United States expressed through the legislation of Congress; in other words, to be himself the ruling power in this regard. This is usurpa

met and branded. Our position as the first free nation of the world demands it at our hands; and whatever may chance to be the result of this trial, whatever may be the future fortunes of those who are now sitting in judg

ment, I can desire no better authenticated claim to the free and enlightened approval of future ages than that I gave my vote against him on this article; nor do I think myself capable of any act that would shed greater honor on my posterity than thus to endeavor to vindicate for them and their posterity the rights of a free and independent people governing themselves within the limits of their own free Constitution.

OPINION

OF

HON. JAMES W. PATTERSON,

We have been brought to a new illustration and test of our institutions. The responsibility of the Chief Magistrate to the people and their power to remove him from his place, if faithless and treacherous to his high trusts, are on trial in the Senate. If before civil order is restored and the animosities of war allayed the temper of forty millions of people shall be self-controlled; if the currents of business are uninterrupted and society discharges its ordinary functions without disorder, as the case passes to its final issue of conviction or acquittal, it will not only prove the capacity of the people for self-government, but will reassure the strength and stability of the Republic. It will be a triumph of popular institutions which 'must unsettle the foundations of arbitrary power, and hasten the establishment of free governments.

The first of the articles exhibited by the House of Representatives against the Presi dent of the United States, charges a violation of the Constitution of the United States, and of an act regulating the tenure of certain civil offices, passed March 2, 1867, in the issuance of "" an order, in writing, for the re

moval of Edwin M. Stanton from the office of Secretary for the Department of War."

It is alleged that this was done contrary to the provisions of the Constitution, and with the intent to violate the act above named, and was, therefore, a high misdemeanor, for which he should be removed from office.

First, was it a violation of the Constitution? An unlimited power of removal from office cannot, I think, belong to the President by force of the Constitution. There certainly is no word in that instrument which confers any such authority directly. It says "the executive power shall be vested in a President of the United States of America," but that power is limited by the letter of the Constitution, and by direct grants of power to other departments of the Government. If the Executive possesses the right of removal in the case of officers appointed by the coördinate action of himself and the Senate, it must be by implication.

The Constitution says the President "shall nominate, and, by and with the advice and consent of the Senate, appoint," &c. Now, the

right to remove cannot be drawn from the right to nominate, and if it comes from the right to appoint, then it exists conjointly in the President and Senate.

There is an objection to this doctrine, however, more fundamental. We cannot by inference lodge in the President a power which would enable him to destroy another power vested expressly in the legislative branch of the Government. The Constitution coördinates the Senate with the President in the appointment of the higher officials. Hamilton, in speaking of this, says:

"It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the Administration."

But it will be readily seen that if the President has the right to remove and make “ad interim" appointments at pleasure, the coördinate function of the Senate in appointments may become a nullity, and the purpose of the Constitution be defeated. It destroys at one blow this great safeguard against usurpation and maladministration in the Executive.

Without delaying to discuss this subject further, I simply say, that to my mind a natural interpretation of the Constitution would give the appointing and removing power to the same parties.

But the acts of 1789 and 1795 gave a legisla tive construction adverse to this view, and whether these acts are repealed or not, if it can be shown that the President violated no law in the removal of Mr. Stanton it would be clearly unjust to impeach him for having conformed to a legislative construction of the Constitution unquestioned for fifty years against the views and wishes of the majority of Congress. So heavy a judgment should not fall upon the Chief Magistrate for having followed an exposition of the fundamental law, authorized by solemn enactment, and supported by some of the ablest among the earlier statesmen of the Republic.

The second allegation in the article is a violation of law in the removal of Mr. Stanton. The respondent urges a threefold defense against this charge:

First. That the non-execution of the act of March 2, 1867, "regulating the tenure of certain civil offices," was not a breach of executive trusts, as the law was unconstitutional and void.

Second. That a denial of the validity of the act and an intentional disregard of its provisions in order to bring the statute into court and test its constitutionality is not an impeachable offense.

Third. That the language of the statute does not include Mr. Stanton, and hence his removal was no violation of law.

Whether the President had or had not a constitutional right to remove at pleasure offi