the President, but only the right to make a nomination, which becomes an appointment only when the nomination has been confirmed by the Senate, the power of removing a public officer cannot be deemed an executive power solely within the meaning of this provision of the Constitution. This view of the subject is in harmony with the opinion expressed in the seventy-sixth number of the Federalist. After stating with great force the objections which exist to the "exercise of the power of appointing to office by an assembly of men," the writer proceeds to say: "The truth of the principles here advanced seems to have been felt by the most intelligentof those who have found fault with the provision made in this respect by the convention. They contend that the President ought solely to have been authorized to make the appointments under the Federal Government. But it is easy to show that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him, while several disadvantages which might attend the abso lute power of appointment in the hands of that officer would be avoided. In the act of nominating his judgment alone would be exercised, and as it would be his sole duty to point out the man who with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case would exist in the other; and as no man could be appointed but upon his previous nomination, every man who might be appointed would be in fact his choice. have great weight in forming that of the public, could not fail to operate as a barrier to one and to the other. He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, and possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." When the President has made a nomination for a particular office, and that nomination has been confirmed by the Senate, the constitutional power of the President during the session of the Senate is exhausted with reference to that officer. All that he can do' under the Constitution is in the same manner to nominate a successor, who may be either confirmed or rejected by the Senate. Considering the powers of the President exclusively with reference to the removal and appointment of civil officers during the session of the Senate it is clear that he can only act in concurrence with the Senate. An office being filled, he can only nominate a is, by operation of the Constitution, appointed successor, who, when confirmed by the Senate, to the office, and it is the duty of the President to issue his commission accordingly. commission operates as a supersedeas, and the previous occupant is thereby removed. This No legislation has attempted to enlarge c diminish the constitutional powers of the President, and no legislation can enlarge or diminish his constitutional powers in this respect, as I shall hereafter show. It is here and now, in the presence of this provision of the Constitution concerning the true meaning of which there neither is nor has ever been any serious doubt in the mind of any lawyer or statesman that we strip the defense of the President of all the questions and technicalities which the intellects of men, sharpened but not enlarged But his nomination may be overruled. This it certainly may, yet it can only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though, perhaps, not in the highest degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted by the preference they might feel to another to reject the one proposed, because they could not assure themselves that the person they might wish would be brought forward by a second, or by any subse-by the practice of the law, have wrung from the quent nomination. They could not even be certain legislation of the country covering three fourths of a century. On the 21st day of February last Mr. Stan: ton was de facto and de jure Secretary for the Department of War. The President's letter to Mr. Stanton of that date is evidence of this fact: EXECUTIVE MANSION, WASHINGTON, D. C., February 21, 1868. SIR: By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby removed from office as Secretary for the Department of War, and your functions as such will terminate upon receipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the Army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge. Respectfully, yours, ANDREW JOHNSON. Hon. EDWIN M. STANTON, Washington, D. C. This letter is an admission, not only that Mr. Stanton was Secretary of War on the 21st of February, 1868, but also that the suspension of that officer of the 12th of August, A. D. 1867, whether made under the tenure-of-office The President cannot assume to exercise a power as a power belonging to the office he act or not, was abrogated by the action of the Senate of the 13th of January, 1868, and that then Mr. Stanton thereby was restored law-holds, there being no warrant in law for such fully to the office of Secretary for the Department of War. On the 21st day of February the Senate was în session. There was then but one constitutional way for the removal of Mr. Stanton; a nomination by the President to the Senate of a successor, and his confirmation by that body. The President attempted to remove Mr. Stanton in a way not known to the Constitution, and in violation thereof, by issuing the said order for his removal. In the first of the articles it is set forth that this order was issued "in violation of the Constitution and of the laws of the United States," and the President is consequently guilty under this article if we have proved a violation either of the Constitution or the laws. If we show that he has violated the Constitution of the United States, we show also that he has violated his oath of office, which pledged him to support the Con- || stitution. Thus is the guilt of the President, under the Constitution and upon admitted facts, established beyond a reasonable doubt. This view is sufficient to justify and require at your hands a verdict of guilty under the first article, and this without any reference to the legislation of the country, and without reference to the constitutionality of the tenure-ofoffice act or to the question whether the Secretary of War is included within its provisions or not. But I intend in the course of my argument to deal with all these questions of law, and to apply the law as it shall appear to the facts proved or admitted. To be sure, in my To be sure, in my judgment, the case presented by the House of Representatives in the name of all the people of the United States might safely be rested here; but the cause of justice, the cause of the country, requires us to expose and demonstrate the guilt of the President in all the particulars set forth in the articles of impeachment. We have no alternative but to proceed. In this connection I refer to a view presented by the counsel for the President in his opening argument. He insists or suggests that inasmuch as the letter to Stanton of the 21st of February did not, in fact, accomplish a removal of the Secretary, that therefore no offense was committed. The technicalities of the law have fallen into disrepute among the people, and sometimes even in the courts. The technicalities proper of the law are the rules developed by human experience, and justly denominated, as is the law itself, the perfection of human reason. These rules, wise though subtle, aid in the administration of justice in all tribunals where the laws are judicially administered. But it often happens that attorneys seek to confuse the minds of men and thwart the administration of justice by the suggestion of nice distinctions which have no foundation in reason and find no support in general principles of right. exercise, and then plead that he is not guilty because the act undertaken was not fully accomplished. The President is as guilty in contemplation of law as he would have been if Mr. Stanton had submitted to his demand and retired from the office of Secretary for the Department of War. Nothing more possible remained for the President except a resort to force, and what he did and what he contemplated doing to obtain possession of the office by force will be considered hereafter. If these views are correct, the President is wholly without power, under and by virtue of the Constitution, to suspend a public officer. And most assuredly nothing is found in the Constitution to sustain the arrogant claim which he now makes, that he may during a session of the Senate suspend a public officer indefinitely and make an appointment to the vacancy thus created without asking the advice and consent of the Senate either upon the suspension or the appointment. I pass now to the consideration of the third clause of the second section of the second article of the Constitution: "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.' The phrase, "may happen," construed according to the proper and well-understood meaning of the words when the Constitution was framed, referred to those vacancies which might occur independently of the will of the Government-vacancies arising from death, from resignation, from circumstances not produced by the act of the appointing power. The words "happen" and "happened" are of frequent use in the Bible, "that well of pure English undefiled," and always in the sense of accident, fortuity, chance, without previous expectation, as to befall, to light, to fall, or to come unexpectedly. This clause of the Constitution contains a grant of power to the President, and under and by virtue of it he may take and exercise the power granted, but nothing by construction or by implication. He then, by virtue of his office, may, during the recess of the Senate, grant commissions which shall expire at the end of the next session, and thus fill up any vacancies that may happen; that is, that may come by chance, by accident, without any agency on his part. If, then, it be necessary and proper, as undoubtedly it is necessary and proper, that provision should be made for the suspension or temporary removal of officers who, in the recess of the Senate, have proved to be incapable or dishonest, or who in the judgment of the President are disqualified for the further discharge of the duties of their offices, it is clearly a legislative right and duty, under the clause of the Constitution which authorizes Congress. "to make all laws which shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested in the Government of the United States, or in any department or officer thereof," to provide for the contingency. It is no answer to this view of the case to say that until the 2d of March, 1867, Congress neglected to legislate upon this subject, and that during the long period of such neglect, by the advice of Attorneys General, the practice was introduced and centinued, by which the President, during the recess of the Senate, removed from office persons who had been nominated by the President and confirmed by the Senate. This practice having originated in the neglect of Congress to legislate upon a subject clearly within its jurisdiction, and only tolerated by Congress, has, at most, the force of a practice or usage which can at any time be annulled or controlled by statute. This view is also sustained by the reasoning of Hamilton, in the sixty-seventh number of the Federalist, in which he says: "The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First, the relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment in cases to which the general method was inadequate. The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments 'during the recess of the Senate, by granting commissions which should expire at the end of their next session."" The arguments which I have thus offered, and the authorities quoted, show that the President had not the power during the session of the Senate to remove either the Secretary of War or any civil officer from office by virtue of the Constitution. The power of removal during the recess of the Senate was recognized by the act of 1789, and tolerated by the country upon the opinions of Attorneys General till 1867. The President claims, however, and as an incident of the power of removal, the power to suspend from office indefinitely any officer of the Government; but inasmuch as his claim to the power of removal is not supported by the Constitution, he cannot sustain any other claim as an incident of that power. But if the power to remove were admitted, it would by no means follow that the President has the power to suspend indefinitely. The power to suspend indefinitely is a different power from that of removal, and it is in no proper sense necessarily an incident. It might be very well conceived that if the framers of the Constitution had thought fit to confer upon the President the power to remove a public officer ab solutely, his removal to be followed by the nomination of a successor to the Senate, they might yet have denied to the President the power to suspend public officers indefinitely and to supply their places by his appointees without the advice and consent of the Senate. But, inasmuch as the power to suspend indefinitely is not a power claimed as a specific grant under the Constitution, and as the claim by the President of the power of removal during a session of the Senate is not sustained by the text of the Constitution or by any good authority under it, it is not important to consider whether, if the power of removal were admitted to exist, the power to suspend indefinitely could be considered as an incident. It is sufficient to say that neither power, in the sense claimed by the President, exists under the Constitution or by any provision of law. I respectfully submit, Senators, that there can be no reasonable doubt of the soundness of the view I have presented, both of the language and meaning of the Constitution in regard to appointments to office. But, if there were any doubt, it is competent and proper to consider the effects of the claim, if recog nized, as set up by the President. And in a matter of doubt as to the construction of the Constitution it would be conclusive of its true interpretation that the claim asserted by the President is fraught with evils of the gravest character. He claims the right, as well when the Senate is in session as when it is not in session, to remove absolutely, or to suspend for an indefinite period of time, according to his own discretion, every officer of the Army, of the Navy, and of the civil service, and to supply their places with creatures and partisans of his own. To be sure, he has not asserted, in direct form, his right to remove and suspend indefinitely officers of the Army and Navy; but when you consider that the Constitution makes no distinction in the tenure of office between military, naval, and civil officers; that all are nominated originally by the President and receive their appointments upon the confirmation of the Senate, and hold their offices under the Constitution by no other title than that which secures to a Cabinet officer or to a revenue collector the office to which he has been appointed, there can be no misunderstanding as to the nature, extent, and dangerous character of the claim which the President makes. The statement of this arrogant and dangerous assumption is a sufficient answer to any doubt which might exist in the mind of any patriot as to the true intent and meaning of the Constitution. It cannot be conceived that the men who framed that instrument, who were devoted to liberty, who had themselves suffered by the exercise of illegal and irresponsible power, would have vested in the President of the United States an authority, to be exercised without the restraint or control of any other branch or department of the Government, which would enable him to corrupt the civil, military, and naval officers of the country by rendering them absolutely dependent for their positions and emoluments upon his will. At the present time there are forty-one thousand officers, whose aggregate emoluments exceed $21,000,000 per annum. To all these the President's claim applies. These facts express the practical magnitude of the subject. Moreover, this claim was never asserted by any President or by any public man from the beginning of the Government until the present time. It is in violation also of the act of July 13, 1866, which denies to the Executive the power to remove officers of the Army and the Navy, except upon sentence of a court-martial. The history of the career of Andrew Johnson shows that he has been driven to the assertion of this claim by circumstances and events connected with his criminal design to break down the power of Congress, to subvert the institutions of the country, and thereby to restore the Union in the interest of those who partici- || pated in the rebellion. Having entered upon this career of crime, he soon found it essential to the accomplishment of his purposes to secure the support of the immense retinue of public officers of every grade and description in the country. This he could not do without making them entirely dependent upon his will; and in order that they might realize their dependence, and thus be made subservient to his purposes, he determined to assert an authority over them unauthorized by the Constitution, and therefore not attempted by any Chief Magistrate. His conversation with Mr. Wood in the autumn of 1866 fully discloses this purpose. Previous to the passage of the tenure-ofoffice act he had removeď hundreds of faithful and patriotic public officers, to the great detriment of the public service, and followed by an immense loss of the public revenues. At the time of the passage of the act he was so far involved in his mad schemes-schemes of ambition and revenge-that it was, in his view, impossible for him to retrace his steps. He consequently determined, by various artifices and plans, to undermine that law and secure to himself, in defiance of the will of Congress and of the country, entire control of the officers in the civil service and in the Army and the Navy. He thus became gradually involved in an unlaw ful undertaking from which he could not retreat. In the presence of the proceedings against him by the House of Representatives he had no alternative but to assert that under the Constitution power was vested in the President exclusively, without the advice and consent of the Senate, to remove from office every person in the service of the country. This policy, as yet acted upon in part, and developed chiefly in the civil service, has already produced evils which threaten the overthrow of the Government. When he removed faithful public officers, and appointed others whose only claim to consideration was their unreasoning devotion to his interest and unhesitating obe dience to his will, they compensated themselves for this devotion and this obedience by frauds upon the revenues and by crimes against the laws of the land. Hence it has happened that in the internal revenue service alone--chiefly through the corruption of men whom he has thus appointed-the losses have amounted to not less than twenty-five, and probably to more than fifty million dollars during the last two years. In the presence of these evils, which were then only partially realized, the Congress of the United States passed the tenure-of-office act as a barrier to their further progress. This act thus far has proved ineffectual as a complete remedy; and now the President, by his answer to the articles of impeachment, asserts his right to violate it altogether, and by an interpretation of the Constitution which is alike hostile to its letter and to the peace and welfare of the country he assumes to himself absolute and unqualified power over all the offices and officers of the country. The removal of Mr. Stanton, contrary to the Constitution and the laws, is the particular crime of the President for which we now demand his conviction. his conviction. The extent, the evil character, and the dangerous nature of the claims by which he seeks to justify his conduct are controlling considerations. By his conviction you purify the Government and restore it to its original character. By his acquittal you surrender the Government into the hands of an usurping and unscrupulous man, who will use all the vast power he now claims for the corruption of every branch of the public service and the final overthrow of the public liberties. Nor is it any excuse for the President that he has, as stated in his answer, taken the advice of his Cabinet officers in support of his claim. In the first place, he had. no right under the Constitution to the advice of the head of a Department except upon subjects relating to the duties of his Department. If the President has chosen to seek the advice of his Cabinet upon other matters, and they have seen fit to give it upon subjects not relating to their respective Departments, it is advice which he had no constitutional authority to ask, advice which they were not bound to give, and that advice is to him, and for all the purposes of this investigation and trial, as the advice of private persons merely. But of what value can be the advice of men who, in the first instance, admit that they hold their offices by the will of the person who seeks their advice, and who understand most clearly that if the advice they give should be contrary to the wishes of their master they would be at once, and in conformity with their own theory of the rights of the President, deprived of the offices which they hold? Having first made these men entirely dependent upon his will, he then solicits their advice as to the application of the principle by which they admit that they hold their places to all the other officers of the Government. Could it have been expected that they, under such circumstances, would have given advice in any particular disagreeable to the will of him who sought it? It was the advice of serfs to their lord, of servants to their master, of slaves to their owner. The Cabinet respond to Mr. Johnson as old Polonius to Hamlet. Hamlet says: "Do you see yonder cloud, that's almost in shape of a camel? "Polonius. By the mass. and 'tis like a camel, indeed. "Hamlet. Methinks it is like a weasel. 'Polonius. It is backed like a weasel. Hamlet. Or, like a whale? "Polonius. Very like a whale." The gentlemen of the Cabinet understood the position that they occupied. The President, in his message to the Senate upon the suspension of Mr. Stanton, in which he says that he took the advice of his Cabinet in reference to his action upon the bill regulating the tenure of certain civil offices, speaks thus: "The bill had then not become a law. The limitation upon the power of removal was not yet imposed, and there was yet time to make any changes. If any one of these gentlemen had then said to me that he would avail himself of the provisions of that bill in case it became a law, I should not have hesitated a moment as to his removal.” Having indulged his Cabinet in such freedom of opinion when he consulted them in reference to the constitutionality of the bill, and having covered himself and them with public odium by its announcement, he now vaunts their opinions, extorted by power and given in subserviency, that the law itself may be violated with impunity. This, says the President, is the exercise of my constitutional right to the opinion of my Cabinet. I, says the President, am responsible for my Cabinet. Yes, the President is responsible for the opinions and conduct of men who give such advice as is demanded, and give it in fear and trembling lest they be at once deprived of their places. This is the President's idea of a Cabinet, but it is an idea not in harmony with the theory of the Constitution. not become his instruments, and all who become his instruments are destroyed in the use. He spares no one. Already this purpose of his life is illustrated in the treatment of a gentleman who was of counsel for the respondent, but who has never appeared in his behalf. The thanks of the country are due to those distinguished soldiers who, tempted by the President by offers of kingdoms which were not his to give, refused to fall down and worship the tempter. And the thanks of the country are not less due to General Emory, who, when brought into the presence of the President by a request which he could not disobey, at once sought to protect himself against his machinations by presenting to him the law upon the subject of military orders. The experience and the fate of Mr. Johnson's eminent adherents are lessons of warning to the country and to mankind; and the more eminent and distinguished of his adherents have furnished the most melancholy lessons for this and for succeeding generations. It is not that men are ruined when they abandon a party; but in periods of national trial and peril the people will not tolerate those who, in any degree or under any circumstances, falter in their devotion to the rights and interests of the Republic. In the public judg ment, which is seldom erroneous in regard to public duty, devotion to the country and adherence to Mr. Johnson are and have been wholly inconsistent. Carpenter's historical painting of Emancipation is a fit representation of an event the most illustrious of any in the annals of America since the adoption of the Constitution. Indeed, it is second to the ratification of the Constitution only in the fact that that instrument, as a means of organizing and preserving the nation, rendered emancipation possible. The princi pal figure of the scene is the immortal Lincoln, whose great virtues endear his name and memory to all mankind, and whose untimely and violent death, then the saddest event in our national experience, but now not deemed so great a calamity to the people who loved him The President is a man of strong will, of and mourned for him as no public man was violent passions, of unlimited ambition, with ever before loved or lamented, as is the shame, capacity to employ and use timid men, adhe- humiliation, disgrace, and suffering caused by sive men, subservient men, and corrupt men, the misconduct and crimes of his successor. as the instruments of his designs. It is the It was natural and necessary that the artist truth of history that he has injured every per- should arrange the personages of the group on son with whom he has had confidential rela- the right hand and on the left of the principal tions, and many have escaped ruin only by figure. Whether the particular assignment was withdrawing from his society altogether. He by chance, by the taste of the artist, or by the has one rule of life: he attempts to use every influence of a mysterious Providence which man of power, capacity, or influence within works through human agency, we know not. his reach. Succeeding in his attempts, they But on the right of Lincoln are two statesmen are in time, and usually in a short time, utterly and patriots who, in all the trials and vicissiruined. If the considerate flee from him, iftudes of these eventful years, have remained the brave and patriotic resist his schemes or expose his plans, he attacks them with all the enginery and patronage of his office and pursues them with all the violence of his personal hatred. He attacks to destroy all who will steadfast to liberty, to justice, to the principles of constitutional government. Senators and Mr. Chief Justice, in this presence I venture not to pronounce their names. On the left of Lincoln are five figures repre |
