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cers confirmed by the Senate was the theme of the great debate in 1789 upon the establishment of the State Department. It was purely a question of interpretation, and was argued upon both sides by lawyers of unsurpassed ability. Even the great statesmen who had been master spirits in the constitutional Convention, and whose genius had passed largely into the framework of the Government, entered the lists and battled earnestly on either side. When the Constitution was before the State conventions for adoption the Federalist expressly denied this right to the Executive, but the Congress of 1789 reversed that interpretation which had received the popular approval by a close vote of thirty-four to twenty in the House and by the casting vote of the Vice President in the Senate. It is believed that the character of Washington, then Chief Magistrate, largely influenced the result, and statesmen as patriotic and enlightened as any who took part in the deliberations of the First Congress have since deprecated a construction which they believe a hazardous and unwarranted change of the Constitution.

In 1835, a committee of Congress, composed of such men as Calhoun, Webster, and Benton, reported a bill designed to limit the abuse of executive patronage, and requiring the President in all cases of removal to state the reasons thereof. In the debate, Mr. Clay spoke as follows:

*It is legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the Constitution, but the law. The office coming into existence by the will of Congress, the same will may provide how and in what manner the office and officer shall cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed.

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The language of Mr. Webster was not less explicit or emphatic:

"I think, then, sir, that the power of appointment naturally and necessarily includes the power of removal, where no limitation is expressed, nor any tenure but that at will declared. The power of appointment being conferred on the President and Senate, I think the power of removal went along with it, and should have been regarded as a part of it and exercised by the same hands. I think the Legislature possesses the power of regulating the condition, duration, qualification, and tenure of office in all enses where the Constitution has made no express

provision on the subject. I am, therefore, of opinion that it is competent for Congress to decide by law, as one qualification of the tenure of office, that the incumbent shall remain in place till the President shall remove him, for reasons to be stated to the Senate. And I am of opinion that this qualification, mild and gentle as it is, will have some effect in arresting the evils which beset the progress of the Government and seriously threaten its future pros || perity. After considering the question again and again within the last six years, I am willing to say that, in my deliberate judgment, the original decision was wrong. I cannot but think that those who denied the power of 1789 had the best of the argument. It appears to me, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution in this respect by the decision of the First Congress."

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"I have the clearest conviction that they [the Convention] looked to no other mode of displacing an officer than by impeachment or the regular appointment of another person to the same place.

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"I believe it to be within the just power of Congress to reverse the decision of 1789, and I mean to hold myself at liberty to act hereafter upon that question as the safety of the Government and of the Constitution may require."

Mr. Calhoun and Mr. Ewing were equally positive in their advocacy of the bill, and Marshall, Kent, and Story seem to have entertained similar views in respect to the original intent of the Constitution.

But there has been a conflict of legislative constructions as well as of individual opinions upon this subject. Subsequent Congresses have claimed and exercised, without the obstruc tion of an executive veto, the power to regulate. the tenure of office, both civil and military.

A law of February 25, 1863, provides that the Comptroller of the Currency “shall hold his office for the term of five years unless sooner removed by the President by and with the advice and consent of the Senate.'

By section five of an act of July 13, 1866, it is provided that

"No officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial, te that effect or in commutation thereof."

These are late acts, but they are only instances of other similar acts scattered through our statutes, whose validity has never been questioned. There is, therefore, no decision of the Supreme Court or settled precedent of legislation which can bar the right of Congress to regulate by law both appointments to and removals from office. Never until now, so far as I know, has the right been questioned. Whatever differences of opinion legislators may have enter tained in respect to the original grant of power, all have acquiesced in the exercise of legislative authority over the tenure of office.

Hence the claim of the President of a judi: cial right to settle ex cathedra the constitution. ality of a law upon this subject is inadmissible and subversive of the powers and independ ence of a coördinate branch of the Government. In a clear case of a legislative usurpation of his constitutional prerogatives, such as would occur in an effort to destroy his veto or

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pardoning power, he might be justified in treating the act as a nullity, but not when Congress moves in the path of authoritative precedents, and where, at most, only a doubt can be raised against its original right of its jurisdiction.

At an earlier period I apprehend such a claim would not have been advanced. Civil war naturally tends to concentrate power in the chief who administers it. Forces and resources must be at his disposal. Defeat waits • upon the commander who is hampered by the forms and delays of law. His authority is nothing if not supreme. The laws of war are swift and absolute and can recognize no personal rights, no claims of Magna Charta. Active warfare necessarily encroaches upon the domain of legislation, and familiarizes the Executive with a use of authority hazardous in a time of peace.

Power once possessed is soon felt to be a right and is yielded with reluctance. Our experience has added another example to the long record of history. The President's defense denies the supremacy of law and is more dangerous to the Government than the alleged crime which has brought him to the bar of the Senate. If he can determine the validity of law, the Supreme Court is an empty mockery. No act can pass his veto, and all legislation may be subverted at pleasure. The right to substitute the judgment of the ruler for the judgment of the people and to override their laws by his will is absolutism. If the plea is good, it is a valid defense for unlimited usurpation.

of Congress after it had rejected his judicial opinion of the constitutionality of the law, and had passed it by a two-thirds vote over his veto. After it had reaffirmed the validity of its action and the invalidity of his on this very subject, and assuming that the removal had been effected, he issued a letter of authority to fill the vacancy. To crown the effrontery he nominates General Scofield to the vacant Secretaryship, while urging upon the Senate his acquittal on the ground that the removal was not effected, but only attempted. Thus duplicity is made the proof of innocence. Haying put the case into a condition in which he could not sue ont a writ of quo warranto, I deny that he can honestly plead a desire to test the law. He knew full well if Stanton was not in the law he could not test it by his removal.

This defense is clearly an afterthought. Having recognized the validity of the law by conforming all commissions to its provisions; having suspended Mr. Stanton and appointed General Grant under it; having notified the Secretary of the Treasury of the change, tö wit, as follows:

"SIR: In compliance with the requirements of the act entitled 'An act to regulate the tenure of certain civil offices,' you are hereby notified that on the 12th instant Hon. Edwin M. Stanton was suspended from his office as Secretary of War, and General U. S. Grant authorized and empowered to act as Secretary of War ad interim "—

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upon the law at the point where it baffled his cherished political policy and curbed a career which the law-makers believed dangerous to the peace and liberties of the country. regard for the Constitution, and not a desire to get control of the Army, had been his purpose, why did he not test the law in the first instance when called upon to execute it, and when his motive would have been simple and unquestioned? Facts show that it was not the nature but the effect of the law which troubled the President.

and having afterward transmitted a message to the Senate giving the reasons for the suspension, as required by the act, he cannot, without criminality, under the pretext of seekThe plea of the President that he removeding a judicial decision, set aside or trample Mr. Stanton for the purpose of securing a decision of the court upon the constitutionality of the law is equally untenable as a ground of defense. It is inconsistent with the answer which he made by his counsel, that he effected the removal in the exercise of an executive power of which Congress could not deprive him, "because satisfied that he could not allow the said Stanton to continue to hold the office of Secretary of the Department of War without hazard of the public interests." It is irreconcilable with the further answer that "in his capacity of President of the United States" he" did form the opinion that the case of the said Stanton and his tenure of office were not affected by the first section of the last named act," referring thereby to the tenure-of-office

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But, passing over the contradictory nature of this defense, we submit that the evidence shows an anxious and persistent effort to get possession of the War Office, and not a purpose to have the law adjudicated. If to test the law had been his desire, he should have sued out a writ of quo warranto" on the refusal of Stanton to obey his order of removal. Instead of that, he not only endeavored to keep him out of office by an unworthy trick when we had annulled his suspension, but issued a letter of absolute removal in the face

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The enactment was designed to circumscribe and limit his power, lest he should abuse it to the injury of the country. It was effective; and when it arrested the execution of his policy, regardless alike of his oath and the wishes of the nation, he defiantly violated the law to remove the man who was a trammel upon his will.

The evidence demonstrates a purpose to get possession of the Department of War, and disproves the pretense that he was seeking a judicial decision upon the constitutionality of the law.

Finally, was Mr. Stanton's removal a violation of the act entitled "An act regulating the tenure of certain civil offices."

The purpose of the law was to hold in office men whom the policy of Mr. Johnson threat

ened to remove. It is both claimed and denied that the Secretary of War who held a commission under President Lincoln is protected by the law. The true construction must be drawn from the letter of the statute itself, and not from any conflicting opinions expressed in debate at the time of its passage.

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The first section of the act reads as follows:

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 herefn 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 mayhave been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

It will be observed that the body of the section includes all persons who have been or who shall be appointed to civil office by and with the advice and consent of the Senate, 66 except as herein otherwise provided."

This last clause which I have quoted was in the bill before the committee of conference, who added the proviso, was appointed, and undoubtedly refers to officers mentioned in the fourth section whose term is limited by law. The Secretaries were not of this number, and the effect of the proviso which was added by the conferees was simply to limit their time to the term of the President under whom they serve and one month thereafter.

The meaning of the section clearly is that every civil officer who has been confirmed by the Senate shall hold his office until the Senate shall confirm a successor, but provides that such officers as hold a term limited by law shall lose their office by the expiration of their term without the action of the Senate. The only effect of the proviso is to bring the heads of Departments into this last class of officers whose terms are limited by law. The intent and effect of the law is to take the removal of every officer confirmed by the Senate out of the pleasure of the President; and it is a perversion of language to say that the proviso places the tenure of the Secretary of War, or of any other Secretary, at the option of the President. They are all removable by the confirmation of a successor or by the expiration of their term.

It has been said that the proviso brings the office of Secretary of War out of the body of the section into itself, but that the clause which provides that the Secretaries "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," excludes Mr. Stanton from it because he was not appointed by Mr. Johnson.

The office could not be taken out of the body of the section unless it was first in it, and if there, the Secretary was there also. If, now,

the office of Secretary of War is brought into the proviso, and Mr. Stanton excluded, he is left in the section and covered by its provisions. If not there, to what limbo have the gods assigned him?

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The conception of a Secretary of War without an office is worthy of a lawyer without a brief. The argument is a pure creation, and a miserable fallacy at that. The language of the section is in relation to persons, not offices. It says, every person holding any civil office shall be entitled to hold," &c.; "the Secretaries, &c., shall hold their offices," &c. The construction of the section is simple and unmistakable. There are certain officers referred to in the fourth section whose terms are limited by law, and the proviso adds the heads of Departments to this number, but the terms of the law allow no officer to be removed who has been appointed by and with the advice and consent of the Senate, except by the appointment of a successor in the same way.

The language of the proviso itself is, that the Secretaries are "subject to removal by and with the advice and consent of the Senate." If, therefore, Mr. Stanton is not in the proviso, he is in the body of the section, and the law was violated by his removal. I will not stay to inquire in whose term he was holding, for the argument is perfect without it.

This is not all. The President violated the second as well as the first section of the law. It reads as follows:

"That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of miscon duct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer," &c.

If, now, the President can suspend an offi cer during the recess only, and that for the reasons specified in the law and no other, can he remove him outright during the session of the Senate, and when he is free from all the legal disqualifications enumerated in the act?

The act further provides, in respect to a suspension, that

"If the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office," &c.

The Senate refused to concur in the suspension of Mr. Stanton, refused to advise and consent to his removal, but the President removed him in defiance of the letter of the act and of the will of the Senate. No amount of genius for legal sophistries can torture that act of the President into anything less than a willful violation of law. This simple statement of the case without argument is sufficient to command the approval of every mind.

Counsel must have forgotten that the Senate, acting under the solemnity of an oath, had

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repeatedly decided that the law applied to Mr. Stanton. On the 12th of December the Senate, remembering that the "tenure-of-office act' was passed expressly to protect officers whose retention was thought indispensable to the public service against an abuse of executive power, and moved by the eloquent and powerful appeal of the Senator from Maine, refused their assent to the removal of Mr. Stanton, which they had no right to do, or even act upon at all, unless he was covered by the law of March 2, 1867.

ability of the officer to "perform the duties of his office." An officer removed cannot perform the duties of his office, it is true, but the natural implication of the language runs pari passu with that of 1792, confining it to such vacancies as occur from death, absence, or sickness. But if we give it the broadest appli|| cation, and cover all vacancies, the limitation of six months placed upon the temporary appointments which it authorizes is designed clearly to cover the interim between the sessions of Congress, and recognizes the hitherto unbroken practice of the Executive to create and fill vacancies only during the recess of the Senate. I conclude, therefore, it was not dedis-signed to authorize by this act an appointment like that of General Thomas.

Again, on the 21st of February, when the President failed in his attempt to prevent the return of the Secretary by the use of General Grant, informed this body of his absolute missal, it was resolved by the Senate

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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.”

With such action upon our records we have a right to assume that argument upon this is foreclosed, and that Senators who took part with the majority in those transactions will sustain the construction which they helped to establish, and upon which the conduct of the|| Secretary is based.

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We are brought next to consider the charges as stated in the second and third articles. is alleged that the appointment of Lorenzo Thomas as Secretary of War "ad interim,' was a high misdemeanor, being made without law, and in violation of both law and the Constitution. The provision of the Constitution is, that

"The President shall have power to fill up all vacancies that may happen [not such as he may make] during the recess of the Senate, by granting commissions which shall expire at the end of their next session.'

This certainly does not confer the right to make "ad interim" appointments during the session of the Senate, but, by necessary inference, denies it, by expressly granting the power for the recess only. Hence, to fill a vacancy in this way, while the Senate is in session and ready to provide for any emergency, is, in the absence of positive law authorizing it, a clear violation of the Constitution. The guilt was in this case enhanced by an attempt to fill an office which the respondent himself claims has never been vacated.

But the President is equally unfortunate in his appeal to law. The act of 1789 makes no provision for "ad interim" appointments. That of May 2, 1792, authorizes temporary appointments in case of death, absence, or sickness, but not for vacancies created by removal. That of February 13, 1795, allows the President to appoint for six months, "in case of vacancy, whereby the Secretaries or any officer in any of the Departments cannot perform the duties of his office."

The construction of this act is somewhat obscure and doubtful. It applies to such vacancies of office as are occasioned by the in

The act of February 20, 1863, fails equally to provide for this case.

But even if these statutes by a proper construction covered the action of the President, he cannot use them, for they have been swept away by the tenure-of-office act, and he is remitted to its provisions alone, which explicitly prohibited any such appointment.

If the first and second sections take from

him, as I have argued, the right to remove Stanton, then there was no vacancy, and the 66 contrary appointment of Thomas was made to the provisions of this act," and was by the sixth section of the same a high misdemeanor.

It has been urged that the last clause of the third section empowers the President to make the section shows this to be a perversion. It such an appointment, but an examination of simply provides that in case the Senate shall fail to fill a vacancy which has occurred by death or resignation during the recess of the same, such officers as may by law exercise such powers and duties shall exercise all the powers and duties belonging to such office so vacant, but that "such office shall remain in abeyance without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto by and with the advice and consent of the Senate."

General Thomas was not so appointed. The law cannot possibly be stretched to cover and justify his case.

Equally fallacious is the interpretation which has been given to the eighth section. This simply makes it the duty of the President to notify the Secretary of the Treasury whenever he shall have "designated, authorized or employed any person to perform the duties of any office" temporarily vacated, as designated in the third article.

This is the whole extent of its meaning, and it cannot be so tortured as to authorize an "ad interim" appointment made during the session of the Senate.

I conclude, therefore, that the President having violated the act of March 2, 1867, as alleged in the first, second, and third articles, is guilty of a high misdemeanor.

Of the fourth, sixth, seventh, and ninth

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articles, I need not speak, as the trial failed entirely, to my apprehension, in establishing the allegations therein set forth by any substantial proof. No satisfactory evidence was presented to my mind of a conspiracy as alleged in either of the articles. In this I think the House entirely failed to make good their charges.

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The fifth article charges that the President conspired with Lorenzo Thomas and others to prevent and hinder the execution of an act entitled 'An act regulating the tenure of certain civil offices,' and in pursuance of said conspiracy did unlawfully attempt to prevent Edwin M. Stanton" from holding the office of Secretary of War. That there was an understanding between the President and Thomas that the latter was to be substituted for Stanton in the office of Secretary of War, in disregard of the act of March 2, 1967, is clear, but that there was any concert to use force to bring it about does not appear from the evidence.

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The eighth article charges upon Andrew Johnson a high misdemeanor, in that he issued a letter of authority to Lorenzo Thomas, transferring to him the office of Secretary for the Department of War, in violation of law, when there was no vacancy in said office, and when the Senate was in session, with intent unlawfully to control the disbursements of the moneys appropriated for the military service and for the Department of War.

I have already given my opinion upon the issuance of the letter to Thomas in what I have said in respect to the second and third articles. That a control of the money appropriated for the military service and the Department of War was a principal motive for securing the place of Mr. Stanton is self-evident, for without it the office could not be administered, and would be a vain and useless shadow of power. I do not see that this article adds anything new, for the gravamen of the charge is involved in the third article. The final judgment upon this must be the same as upon that.

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than availability in those whom it advances to the great trusts of society. When we reflect how essential to national welfare and human progress is that liberty of speech which we have inherited, and how readily a restriction upon its abuse may turn to an abuse upon its restriction, we hesitate to inflict a merited penalty upon this prominent offender. We deem it safer to

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"Bear those ills we have,

Than fly to others that we know not of"

There are four distinct allegations in the eleventh article. The first relates to the President's misrepresentations of Congress in public speech, and has already been reviewed in considering the tenth article.

The second charges a violation of "an act regulating the tenure of certain civil offices," by unlawfully devising and contriving, and attempting to devise and contrive, means to prevent Mr. Stanton from resuming his office of Secretary of War after the Senate had refused to concur in his suspension. This is charge not mentioned in any preceding article, and its proof is unequivocal and satisfactory.

The attempt was made through General Grant, and the President's letter of reproof to that distinguished citizen for defeating his wicked purpose by refusing to participate with him in a premeditated breach of law and contempt of the Senate, is the impregnable demonstration of the allegation. The following is the language of his letter:

"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 suc

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The third and fourth allegations of this arti cle do not seem to have received that attention which their importance would justify. evidence upon the records by which they are supported is very slight. I have been the more surprised at this inasmuch as the last sets forth that the President attempted to prevent the execution of the act entitled "An act to provide for the more efficient government of the rebel States.' This I have deemed the primum mobile which has impelled the entire policy of the Executive.

The facts alleged in the tenth article are known and read of all men, and are not denied by the respondent. That the speeches referred to in this article were "slanderous harangues, showing not only a want of culture, but the entire absence of good sense, good taste, or good temper, nobody can deny. But in view of the liberty of speech which our laws authorize, in view of the culpable license of speech which is practiced and allowed in other branches of the Government, I doubt if we can at present make low and scurrilous speeches a ground of impeachment. I say this in sorrow, and not in any spirit of palliation, for the speeches referred to in the charges were infamous and blasphemous, and could not have been uttered by any man worthy to hold the exalted position of Chief Magistrate of an intelligent and This has been the motive of all our excepvirtuous people. Personal decency should be tional legislation; this has prolonged and muldeemed essential to high official responsibility | tiplied our sessions; this has distracted busiin this Republic, but it must be secured by a ness, and protracted the unrest of society, and public sentiment which shall exact virtue rather this will be the crowning infamy of an Admin

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