impeachable becomes such at once, and when the words "high crimes or misdemeanors" are used in that instrument they are without signification and intended merely to give solemnity to the charge.

To sustain this extraordinary view of the character of this tribunal we have been referred to English precedents, and especially to early English precedents, when, according to my recollection, impeachment and attainder and bills of pains and penalties labored together in the work of murder and confiscation. Senators, I do not propose to linger about these English cases. We have cases of our own upon this subject; we have teachings of our own. This we know: our fathers, in framing|| the Constitution, were jealous of delegating their power, and tried to make a limited constitutional Government; tried to enumerate all the power they were willing to intrust to any department of it. The executive department is limited; the judicial department is limited; and the legislative department, we have supposed, was also limited; but according to the argument made here on this trial it is otherwise, and it has in its service and at its command an institution that is above all law and acknowledges no restraint; an institution worse than a court-martial, in that it has a broader and more dangerous jurisdiction. Senators, I cannot believe for one moment that there is lying in the heart of the Constitution any such tribunal as this; and I invite your attention to a brief examination of our own authorities and of our own teachings upon this subject.

It was with much doubt and hesitation that the jurisdiction to try impeachment at all was intrusted to the Senate of the United States. The grant of this power to this body was deferred to the last moment of time. Nor was your jurisdiction overlooked.

"treason, bribery, or other high crimes and misdemeanors"-no malpractice, no neglect of duty, nothing that left the jurisdiction open. The jurisdiction is shut and limited by any fair construction of this language; and it was intended to be shut. It is impossible to observe the progress of the deliberations of the Convention upon this single question, beginning with the broadest and most open jurisdiction and ending in a jurisdiction defined in these technical terms of law, without coming to the conclusion that it was their determination that the jurisdiction should be circumscribed and limited.

But in what character, Senators, do you sit here? You have heard the argument of the Managers; you have heard their frequent discussions upon this subject all through the progress of the cause, appealing to English precedents to maintain the position that you sit here not as a court, but as an inquest of office or as some nameless tribunal with unbounded and illimitable jurisdiction. Now, we have precedents, we have our own precedents upon this subject; and let me call your attention to them for a few moments.

But, before doing so, I desire to say that it has been heard for the first time in this trial that this tribunal, sitting as you are sitting, was anything else than a court. I challenge the gentlemen in all the investigations they may have made of the action of the constitutional Convention, of the utterances of jurists, or of anything that has been said or done to throw light upon this inquiry, to produce anything calculated to make the impression that the tribunal that tried impeachment was anything else than a court.

Let us look, Senators, to our own precedents. We have had five trials of impeachment in the United States. The first was the case of Blount. What was the language of the tribunal in that trial-not of counsel, but of the tribunal itself? What was its language upon this identical question? Hear it. When they came to give their final decision they did it in this language:

'The court is of opinion that the matter alleged in the plea of the defendant is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment be dismissed.”

Allow me to call your attention very briefly to the proceedings of the Federal Convention upon this subject as recorded in the Journal of that body. In the first report that was presented it was proposed to allow impeachment for "malpractice or neglect of duty." It will be observed that this was very English-like and very broad in the jurisdiction proposed to be conferred. There is not necessarily any crime in the jurisdiction here proposed to be conferred. In the next report it was proposed to allow the tribunal jurisdiction for "treason, bribery, and corruption. It will be observed that they began to get away from the English precedents and to approach the final result at which they arrived. The jurisdiction here proposed was partly criminal and partly broad and open, not necessarily involving penal liability. In the next report it was proposed that impeach-least to confuse. ment should be allowed for "treason or bribery"—nothing else. It will be observed that here was nothing but gross, flagrant crime. This jurisdiction was considered too limited and was opened, and that gives us the jurisdiction we have in the present. Constitution, ||

That is good authority. It is good American precedent upon this question. It is the deliberate opinion of the Senate of the United States in the first trial in which it sat in this capacity, declaring itself, in the most solemn language it uttered throughout the trial, its final decision, to be a court and not an inquest of office or some nameless thing that by reason of its mystery is calculated to frighten, or at

What was the next case? The Pickering case. I am referring now to the appendix to volume three of the Senate Journal. On pages 489 and 507 the language of the body will be found on this subject in the following form: in its process, its own language, it styles itself

In what spirit, Senators, should you try this case? Allow me to refer you upon this sub-prompting its commission; otherwise there can

as he can neither plead nor prove his motive, the presumption of the law must remain that in violating his oath of office and the Constitution of the "United States he was influenced by a bad motive."

2. Had he the right to issue the letter of authority to Thomas?

I propose, as well as I am able in my con

The gentleman seems to acknowledge that dition, to examine these two questions.

there must be motive. There can be no crime without motive. But when the party comes forward and offers to prove it his answer is, "You shall not prove it." When he comes forward and offers to prove it from his warm, living heart, the answer is, "We will make up your motive out of the presumptions of law, and conclude you upon that subject; we will not hear you.' The command is "silence" when you propose to prove the exact motive by which you were prompted in the act.

No, Senators; the jurisdiction of this body is to try crime. There is no crime without unlawful intention and purpose. You cannot get it without the unlawful intent or purpose behind the act prompting its commission. Why, what is the judgment that you shall render in this case? Not did the President do this or that act; that is not your inquiry; but was he guilty of a high misdemeanor in the purpose with which he did the act?

With these preliminary observations, I propose to proceed to a brief examination of the merits of the case.

You are now all of you, Senators, familiar with the articles of impeachment, and I need not attempt to go over them article by article. I have this to say, and you will all concur with me instantly upon making the statement: the first eight articles are built upon two acts of the President; the one, the removal of Stanton, the other the letter of authority given to Thomas. Now, if you will take up these eight articles, and then the last, the eleventh, and notice the substantial part of them, around which they throw their charges of bad intent and their averments, you will see that in the whole eight articles there are but these two acts, the removal of Stanton and the letter of authority to Thomas, so that we have only to inquire in reference to these two acts in order to ascertain the merits of this case upon these eight articles, and in fact I may say the eleventh also.

If the President of the United States had the right to remove Edwin M. Stanton, then these eight articles are without support. If, in addition to that, he had the right to give that letter of authority to Lorenzo Thomas, the eight articles fall in ruins instantly. There is no Senator who has studied this case who will not see the accuracy of this statement at once; and it relieves us from the necessity of going through them, article by article, and step by step. Give me these two propositions, the right to remove Stanton and the right to issue the letter of authority to Thomas, and the articles fall instantly; there is nothing left of them. So that we have at last, in the consideration of these articles, but two inquiries to make:

1. Had the President the right to remove Stanton?

Taking up the questions in their order, first, had the President the right to remove Edwin M. Stanton? I propose to examine that question in the first instance in connection with the act regulating the tenure of certain civil offices. It is claimed on the one side that by the operations of this law Mr. Stanton was withdrawn from his previous position and covered and protected here. It is claimed upon the other side that the law does not apply to his case; and if it do not, I think it will be acknowledged by the Senators that the President had the right to remove him. Allow me to call your attention, therefore, to one section of this law in which the question is presented:

That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be, entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

Now, gentlemen, let me state a few facts before we proceed to the consideration of the construction of this section. The first fact to which I call your attention is that the act was passed on the 2d of March 1867. I further call your attention to the fact that Stanton's commission is dated on the 15th of January, 1862. It is a commission given to him by President Lincoln, by which he was to hold the office of Secretary for the Department of War" during the pleasure of the President of the United States for the time being. Mr. Johnson became President on the 15th of April, 1865. He has not in any manner commissioned Mr. Stanton. Upon these facts, Senators, I claim it is clear that Mr. Stanton is not protected by this bill. Let us inquire. The law proposed to grant to the Cabinet officers, as they are called, a term that shall last during the term of the President by whom they were appointed, and one month thereafter. Mr. Johnson has not appointed Mr. Stanton. He was appointed during the first term of Mr. Lincoln. He was not appointed at all during the current presidential term. He holds his office by a commission which would send him through Administration after Administration until it is recalled. Now, what is the meaning of this language, "he shall hold his office during the term of the President by whom he was appointed?" and he was not appointed during the present term. I think that is enough. It does seem to me that that simple statement settles this question.

The gentleman has said this is Mr. Lincoln's term. The dead have no ownership in office or estate of any kind. Mr. Johnson is the President of the United States with a term, and this is his term. But it would make no difference if Mr. Lincoln were living to-day; if Mr. Lincoln were the President to-day he could remove Mr. Stanton. Mr. Lincoln would not have appointed him during this term. It was during the last term that Mr. Stanton received his appointment and not this; and an appointment by a President during one term, by the operation of this law will not extending the same, have charge of the records, books," &c. the appointee through another term because that same party may happen to be reëlected to the Presidency. Stanton, therefore, holds under his commission, and not under the law. Again, Senators, his tenure of office cannot be extended or changed from his commission to the law. What is the proposition of this law? Mr. Stanton held, before its passage, "during the pleasure of the President for the time being. This law proposes to give him, in place of a term at pleasure, a term of years and one month thereafter. By what authority can the Congress of the United States extend the term in this manner? That office can only be held by the appointment of the President. His nomination and his appointment must cover the whole. term which the appointee claims. On any other theory the Congress of the United States might extend the offices of persons who had been appointed indefinitely through years and years, and thus defeat the constitutional provision that the President shall nominate and shall appoint for the office, for

the whole term of the office. There is no other construction that can be put upon it.

And in this view of it, it appears to me, Senators, that the law we have under consideration cannot be made to apply to any offices which were occupied at the time of its passage. Take the case of a general office held at pleas

ure.

What is the character of that tenure? The lowest tenure known to the law is a tenure at pleasure, at suffrance, at will. To convert that into a tenure for a fixed term is to enlarge it, to extend it, to increase it, to make it a larger estate than it was before. If the office be one that cannot be filled without presidential nomination and appointment it does seem to me, whatever may be the office, it cannot be extended as to those who were in office at the time. If this be a right construction of the act of March 2, 1867, and I am compelled to leave it with this brief examination, Mr. Stanton is left where he was before its sage.

pas

It is further to be observed that the act of March 2, 1867, has no repealing clause. We are, therefore, remitted to the previous laws applicable to his case, and this refers us to the Constitution and the act of August 7, 1789. By the provisions of this law it is provided among other things that

"There shall be an executive Department to be

This is the law to which we are referred, unless the act to regulate the tenure of certain civil offices covers the case of Mr. Stanton. By the terms of this law, by the commission that was issued to Mr. Stanton to hold "during the pleasure of the President of the United States for the time being" framed upon this law, by the uniform construction of it, as I shall show, the President had the right to remove Mr. Stanton according to his pleasure.

Mr. FESSENDEN. Mr. President, the counsel will excuse me. I wish to observe, if is evidently laboring under very severe diffiI may be permitted to do so, that the counsel himself very much oppressed I feel disposed culty in endeavoring to go on, and if he finds to move an adjournment unless one of the Managers wishes to occupy the day.

Mr. GROESBECK. I am very much obliged to the Senator, if he will allow me to answer him. I thank him for the suggestion; but I apprehensions that I shall not be any better if came here indisposed this morning, and I have this matter is postponed. Hence I do not know but that I had better go on as best I can. I shall be very thankful for the attention tion in which I find myself. of the Senate to what I shall say in the condi

who argue this cause on the other side that there But we are told, Senators, by the gentlemen

has been no such case as the removal of a head Senate, and that the construction which we of a Department without the coöperation of the claim as applicable to this law is unsound. Allow me, upon that subject, to call your atings. I now refer to the letter of John Adams, tention to pages 357 and 359 of the proceedwritten under one of these three laws that were

passed in the First Congress under the Constitution. I give you the letter:

PHILADELPHIA, May 12, 1800. SIR: Divers causes and considerations, essential to the administration of the Government, in my judgment, requiring a change in the Department of State, you are hereby discharged from any further service as Secretary of State.

JOHN ADAMS, President of the United States. That was the act of John Adams, by whose casting vote the bill of 1789 was passed; that act was done according to the construction that was given to the bill; and it is an outright removal during the session of the Senate without the coöperation of the Senate.

The

letter is addressed to the Secretary of State in
his office, declaring him removed; and when
Mr. Adams comes to communicate with the
Senate he sends his communication nominat-
ing John Marshall, not "in place of Mr. Pick-
ering, to be removed with your assent," but
"in place of Mr. Pickering, removed by my
will, and according to the law and the language
of his commission." Why, Senators, there
is no doubt about it. If John Adams, who
passed this law in the Senate by his casting
vote, had had the least idea that the power of
removal was not, as it is said to be in the law,
in his own hand, do the gentlemen suppose
that he would have taken the course he did,
and that he would not have taken some such
course as this: "Senators, I propose, with your
consent, to remove Timothy Pickering and
appoint John Marshall in his place."
was not the right construction of the law. His
act is the true construction according to his
own interpretation and according to the in-
terpretation that has been given from that day
to this, down to the passage of the act of March
2, 1867, done in session, done by himself, done
without consultation or coöperation with the
Senate; and that very form which he adopted
when he did remove, as a distinct and inde-
pendent act, has been followed from that day
to this.

That

Senators, let me call your attention, too, while I am upon this subject, and lest I forget || it, to the language of John Marshall in the case of Marbury vs. Madison. He was there discussing the question when an appointment was made, when it was complete, so that it was withdrawn from the control of the President; and he held in the decision of that case that it was complete when the commission was made out; but in the course of his decision he goes on to remark:

"When the officer is removal at the will of the Exec

utive the circumstance with completes his appointment is of no concern, because the act is at any time revocable."

So it was always held and so it has been always understood, "removable by the Presremovable by the President; that is the language; so the commission runs, “removable at the pleasure of the President for the time being. 19 When? In recess? no, at his pleasure; in session? no, at his pleasure, is the language of the commission and the authority given by the commission and by the law. Who will attempt to construe a commission in such language, holding at pleas ure, into a commission that he may remove this month or that month or the next month, or in recess or in session? It is, Senators, at pleasure; so it has always been understood and construed.

If I am right in the view which I have very briefly taken of the operations of this law, Mr. Stanton was not covered by it, and he is subject to removal under the commission which he received from Mr. Lincoln and under the law of 1789. I beg you to observe that that

law is in full force. There is no attempt to repeal it in the act of March 2, 1867. That act in fact has no repealing clause. What then? What becomes of the first eight articles of this case ?

Let us stand at this point and look over the case; it is an excellent point of observation from which to look at it. We have removed one difficulty; we have ascertained one fact: Edwin M. Stanton could be removed by the President. I should like to linger on this question longer. I should like, if I had voice and health to-day, to call your attention to many other points which I had intended to present in this discussion. I should like to read to you the language of your own Senators upon this question, especially the pertinent language of the Senator who from the conference committee reported this bill for your consideration. I should like to read that language, for it was the last utterance in this Chamber before the bill was passed; and it was received with no dissenting voice. It was the true, sound, accepted construction of the law.

A

But I pass on. We have torn down the main structure of these eight articles. Take out the question of the power to remove Stanton from these eight articles and they are without support. All you have left to consider is the single, question of the right to confer the ad interim authority upon Lorenzo Thomas. Senators, we see more than that, if this be so. All these questions of intent all these questions of force all these questions of whether we intended to go into court-all these questions that occupied us so much in the course of this investigation, vanish out of sight; for if we had this authority, Edwin M. Stanton was a trespasser; we had the right to remove him, and we were not bound to go to court to ascertain that right.

But, Senators, let me ask you still one other question before I proceed. Suppose Mr. Stanton is within the tenure-of-office act—what then? The inquiry then comes for your consideration whether the President is criminal in acting upon the supposition that he was not within it. This inquiry does not challenge the constitutionality of the law. It is a question of construction of a doubtful law. Is there a Senator here who will not admit, whatever his view may be upon this subject, that it was a law about which any one might reasonably adopt this construction? I believe that the majority of the Senators in this Chamber are of the opinion that it does not apply to the case of Mr. Stanton; and even if it did, there is no majority of Senators, intelligent Senators as you are, who would say that there was not room for doubt in the construction of the law. What then? Let me in this connection refer you to the | act creating the office of Attorney General. It is to be found on page 93 of 1 Statutes-atLarge, and reads as follows:

"And there shall also be appointed a meet person, learned in the law, to act as Attorney General for