visions of the Constitution, every possible condition of offices, and to apply to all without exception.

If this law provides, wherever the Constitution does not, a general rule in relation to all offices, it repeals, to its extent, all former laws, and destroys the effect of all previous customs, rules, or precedents; and if it provides such general rule in relation to all conditions of offices, without exception, it covers the subject-matter of all former laws on the same subject, and overlies and repeals them.

It is apparent, then, that after the passage of this act the whole law in relation to both removals and appointments of civil officers requiring confirmation was to be found in the Constitution and the tenure-of-office act. These together constitute the general governing rule of action on this subject, and all lawful action must be under and in accordance with it, and any official act in disregard of or contrary to it is a violation of law and a misdemeanor in office.

That the President understood that this was the effect of the tenure-of-office law is conclusively apparent. His action in August last in regard to Mr. Stanton, and his suspension from office, was had under the second section of this law, otherwise it could not lawfully have been had at all, for that section prescribes when and how the suspension may be made, and forbids one under all other circumstances. The President acted strictly under the provisions of this law; first, in the form of the suspension; second, in the authorization of General Grant; third, in the notice to the Secretary of the Treasury; fourth, in his report to the Senate. Indeed, how could he intend, as he claims that he did intend, to test in the courts the constitutionality of the law by the removal of Mr. Stanton, if he thought that his case was not included in the law?

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Again, by the second section, which applies without question to Mr. Stanton, the President was not authorized during the recess of the Senate" to "remove" him; he was only authorized, and only claimed to be authorized, to suspend" him, although it was during the recess. Now, upon whatever implication of constitution or law the power of removal or suspension is assumed for him, that implica. tion is certainly, on principle and precedent, stronger in favor of the power during a recess of the Senate than during its session. Upon what principle, then, in view of the authoritative declaration of Congress that he may only suspend" an officer "during the recess," can he claim to remove him during the session?

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But, again, this second section in terms settles the question of removal against him. The section is admitted to include Stanton within its general provisions. It provides that the President may, under certain circumstances, suspend an officer during the recess. This he did. It provides that having done so, he shall, when the session occurs and within a limited time after its commencement, report the suspension, with his reasons, to the Senate. This he also did. It also provides that, if the Senate shall concur and advise and consent, and so certify, he may "thereupon remove. It will be observed that this is during the session of the Senate, and that the removal is only to be made upon the advice and consent of the Senate. He may remove him "thereupon," that is, not otherwise. In Mr. Stanton's case the Senate did not concur, and the condition of his removal being wanting, the President could not remove him, but under the provisions of this section he "forthwith resumed the functions of his office." He holds his office, then, by the provisions of this law, contained in a section which certainly applies to him, contrary to the will of the President, under the action of the Senate, which is thus by law made capable of preventing his removal. Why should he so hold it, and why is this power declared by law to be in the Senate, and the President's power thus restrained, if the President may the next moment remove him without consent and despite the action of the Sen

ate? And does not this show that this law is intended to comprehend the whole subjectmatter, and to regulate in all respects the power of the President in this regard? Is it not conclusive that all power of suspension and removal, except by nomination and confirmation, under the Constitution, is exhausted by these proceedings? What becomes of the claimed implication of a power of removal in the President, without precedent, or even with precedent, in the face of the irresistible language and implication of this law, that the Senate must concur in all removals, and that any removal without such concurrence is a direct defiance of the legislative authority, and a misdemeanor in office?

The remaining question on these three articles is, was the appointment of Thomas, as set out in the second and third articles, an act authorized either by the Constitution or by law? If not, then these articles are sustained. A general power of appointment by the Executive, by and with the advice and consent of the Senate, a special power himself to fill vacancies which may happen" during the recess, and the power to appoint inferior officers where such power has been given him by legislative enactment-these comprise all the authority of the President for this purpose, given in or to be derived from the Constitution.

Whatever rightful authority, then, was exercised by the President in making this appointment to the War Department, must have been derived by the express terms of some legislative

enactment.

By the eighth section of the act of 1792, making alterations in the Treasury and War Departments, it is made lawful for the President, in case of the death, sickness, or absence of the Secretary, to authorize some person to perform the duties of the office until a successor is appointed, in case of death or the absence or inability from sickness shall cease. The only actual vacancy contemplated by this act is one happening by death.

The act of 1795, amendatory of the last mentioned act, declares, generally, that in every case of vacancy in the Department" it shall be lawful for the President to authorize any person to perform the duties of the office until a successor be appointed, "provided that no one vacancy shall be supplied in manner aforesaid for a longer term than six months." This act contemplates lawful vacancies only, for none others are vacancies which can be lawfully filled. We have already seen that the President could not lawfully make a vacancy without the concurrence of the Senate while it was in session to take concurrent action; and to claim that the President is authorized by this act to make an appointment to a vacancy made during a session of the Senate by his separate action, is simply begging the whole question. If there was no lawful vacancy, it could not lawfully be filled, and there is nothing in the law which makes any vacancy lawful which was not lawful before its passage. By the act of February 20, 1863, it is made lawful for the President, in case of the death, resignation, sickness, or absence of the head of any executive Department, to authorize the head or other officer of one of the Departments to perform the duties "until a successor is appointed, or such absence or inability by sickness shall cease."'

This was the condition of the law before the passage of the "tenure-of-office act.

The act of 1792 had been superseded by the act of 1795, and this had been followed in turn by the act of 1863. This last act was, I doubt not, intended to supersede the act of 1795, as it provides that the vacancies to which it applies shall be filled with a select class of persons, and there could have been no reason why all vacancies in the same office, however produced, should not be filled by the same select class. The act appears to be intended to provide for the temporary supplying of all vacancies in the offices referred to, and by omitting from its list of vacancies vacancies by removal, it seems, by its later implication,

to conclude the President's power of removal, as derived from the implications of the earlier laws of 1789, creating the Departments.

But if it is conceded that the President retained the power of removal during the recess, after the passage of the act of 1863, it must also be conceded that the act of 1863 did not cover all the subject-matter of the act of 1795, and does not, therefore, completely supersede it. It will be seen that none of these laws affirmatively recognize or imply a power of removal in the President during the session of the Senate, and consequently they give him no power of appointment to a vacancy made by him at such time, while not one precedent can be found that goes to this extent, so that this power is claimed contrary to the necessary implications of the Constitution, and without authority either of law or precedent. But the tenure-of-office act clearly covers and regulates this whole subject-matter, and supersedes the previous laws, including the act of 1795. We have already seen that this act applies to this case.

The second section certainly does apply, and if the vacancy which is said to exist in the War Department is claimed to have been made "during a recess' in August last, it must have been under that section, for it provides that

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during the recess of the Senate" vacancies shall only be made by the President by suspension, and that no suspension shall be had, except in a case made under its provisions, and that "in such case and in no other" the President may designate a suitable person temporarily to perform the duties; but if the Senate does not consent the suspended officer shall forthwith resume the functions of his office.' So if the vacancy was made in vacation that vacancy no longer existed after the refusal of the Senate to consent to it, and the appointment of Thomas was without authority of law. But the terms of the President's letter of February 21 to Mr. Stanton assume that he was then in office, and was thereby removed "during the session of the Senate." We have already seen that all removals at such times are regulated by the first section of the tenureof office act, and that the case of Stanton is included by its provisions; but by that section all temporary or ad interim appointments to the offices referred to therein are abolished, and the officer appointed by and with the advice and consent of the Senate is "entitled to hold" his office until a successor shall have been appointed "in like manner," that is, with the concurrence of the Senate. The appointment of Thomas was not "in like manner."

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It will also be perceived that the words in the body of the first section immediately preceding the proviso are except as herein othwise provided." This language refers to the whole act. Its meaning is except as is otherwise provided in this act. Now the term of office, and the manner of removal from and appointment to office, are distinct propositions contained in the body of the section. The proviso relates only to the term of the officers therein named; but that part of the subjectmatter of the general clause which provides how the successors of all civil officers requiring confirmation shall be appointed, namely, "by and with the advice and consent of the Senate," is not affected by the proviso. This subject is not otherwise provided for" in that proviso in relation to any officers, and the provision of the general clause in relation to it, is not restricted by the terms or implications of the proviso.

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To take the officers mentioned in the exception wholly outside of the provisions of the general clause, which covers other subjectmatter besides that covered by the exception, the language must have been except the officers hereinafter mentioned, or something of like effect. Thus, whether Mr. Stanton's case, as far as relates to the tenure of his office, is within the general clause or the exception of this section, or within neither, his successor's case is clearly within the general clause, and no one can be lawfully appointed to succeed

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him except "in like manner," as he was himself appointed; that is, with the concurrence of the Senate.

Again, the reasoning on the spirit of the second section of the act is irresistible. Does it not seem a ridiculous claim that the Presi-| dent may, "during a session of the Senate," appoint a successor or locum tenens, of any kind, for an officer whom the Senate has just, under express authority of law, refused to remove, and who has just, under like authority, resumed the functions of his office?

The appointment of Thomas, then, was unauthorized by any law, and was an unlawful attempt, by the exercise of usurped executive power, to seize upon and control a most important department of the Government, in violation of express legislative enactment.

This crime, so clearly shown; is really a higher and more dangerous one than the removal of Mr. Stanton, for it not only includes the unlawful removal, but is in itself an affirmative, while the other is, in some sense, but a negative act of usurpation.

Whatever plea of misinformation, mistake, or absence of intent may be set up by his friends or his counsel the President makes no such plea. He has claimed, and does claim in his answer and by the lips of his special representatives among the counsel, that he has removed Mr. Stanton and appointed Thomas by virtue of power vested in him as the Chief Executive, notwithstanding the tenure-of-office act. And it is proved that he intends to carry out his attempts should this trial result in his favor. By a verdict of acquittal, then, the Senate must either recede from their position on this act, or must submit that the President may defy its spirit and violate its express provisions with impunity.

In the consideration of this question I have assumed the constitutionality of the tenure-ofoffice act. I cannot consent to even consider this a debatable point. The Senate has solemnly adjudicated this question for itself on four distinct occasions, each individual Senator acting under the obligation of an oath as solemn and binding as that administered at the commencement of this trial, of the solemnity of which we have been so often reminded by the counsel for the President. First, by the passage of the bill in question, after a full discussion of its provisions, by a vote of 29 yeas to 9 nays. Secondly, the bill having been submitted to the President for his approval and returned to the Senate with his objections in an elaborate veto message arguing against the constitutionality of the measure, the Senate again passed the bill in the face of the arguments submitted, by a vote of more than two thirds of the members present and voting. Upon the question "Shall the bill pass, the objections of the President to the contrary notwithstanding?" the vote was as follows: "YEAS-Messrs. Anthony, Cattell, Chandler. Conness, Cragin, Edmunds, Fessenden, Fogg, Foster, Fowler, Frelinghuysen, Grimes, Harris, Henderson,

Howard, Kirkwood, Lane, Morgan, Morrill, Nye,
Poland, Pomeroy, Ramsey, Ross, Sherman, Sprague,
Stewart, Sumner, Trumbull, Van Winkle, Wade,
Willey, Williams, Wilson, and Yates-35.
"NAYS-Messrs. Buckalew, Cowan, Davis, Dixon,
Doolittle, Hendricks, Johnson, Nesmith, Norton,
Patterson, and Saulsbury-11."

Thirdly, the Senate recognized the validity of this law when, in response to the message of the President communicating the fact that he had "during the recess" suspended Mr. Stanton, the Senate took action, under and in accordance with the said law, and after due consideration refused to concur in the suspension of that officer, and informed the President

thereof. Fourthly, when the President, after having exhausted all legal means to displace this faithful and efficient officer, and rid himself of what his counsel chooses to call "a thorn in his heart," deliberately, willfully, and knowingly violated the provisions of this act by the arbitrary removal, or attempted removal, of Mr. Stanton and the appointment of Lorenzo Thomas, and defiantly flaunted his action in the face of the Senate, this body again reaffirmed the validity of the tenure-of-office act by declaring that the action of the President was without lawful authority.

I submit, then, that the tenure-of-office bill, having been passed over the President's veto by a vote of two thirds of both Houses, by express provision of the Constitution" it became a law;" a law to the President, and a law to all the people; a law as valid and binding as any on the statute-book; and I cannot believe that the Senate will consent to stultify itself by the admission that its oft-repeated action upon this bill was in violation of the Constitution, which each member had solemnly sworn to support.

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Moreover, the President himself recognized the validity of the law by taking action under its provisions in the suspension of Mr. Stanton, I have already shown in the course of this argument. Upon what principle may he consider a law valid and binding to-day and of no force or effect to-morrow? The law was sufficient so long as he thought he could accomplish his purpose to get rid of Mr. Stanton under it; but when he failed in this, by the refusal of the Senate to concur in the proposed removal, he overrides the law and then attempts to shelter himself, when arraigned for the offense, under the plea that it is not a constitutional law.

But admitting, for the sake of argument, that there were no doubts as to the constitutionality of the law, who clothed Andrew Johnson with || judicial power to settle that question? Under what clause of the Constitution does he presume to derive the power to decide which of the enactments of Congress are valid and binding and which are not? If he may exercise judicial functions in regard to one law, why not in regard to all laws? As I read the Constitution, the President is enjoined to "take care that the laws be faithfully executed." I fad no provision in that instrument which clothes him with the more than regal power to decide which laws he will execute and which he will not.

If judicial power is a prerogative of the Executive, of what use is the Supreme Court? Why not abolish so useless an institution? Nay, more, if a law of Congress, though passed by the constitutional vote of two thirds of both Houses, may not "become a law" unless it meets the sanction of the Executiveif he may suspend or virtually repeal by rendering inoperative the enactments of Congress, why not abolish the legislative department of

the Government?

It may be that Andrew Johnson is wiser than the Senate and House of Representatives; it may be that wisdom will die with him; it may be unfortunate that the Constitution under which we live has not given to him who claims to be its especial custodian and guardian the more than imperial power to make the laws and judicially pass upon them, as well as the duty to take care that they "be faithfully executed;" but, in my judgment, the American people will be slow in arriving at any such conclusion. So monstrous a proposition as that which virtually surrenders to one man all

the power of our great Government is not worthy of serious consideration.

Mr. President, for the first time in the history of our Government we are confronted with a clear, decided, and flagrant act of executive usurpation. For his offense against the majesty of the law the House of Repre sentatives, in accordance with the provisions of the Constitution, and in the name of all the people of the United States, have impeached Andrew Johnson for high crimes and misdemeanors, and have brought him to the bar of the Senate to answer to the charges exhibited against him. The issues involved in these proceedings are of the gravest character, reaching down to the very foundation of our system of government, and it behooves us as the representatives of forty million people to see to it that impartial justice is done as between the people and the accused. If this, the highest tribunal of the nation, shall render a verdict of acquittal, it will be a virtual admission of the President's assertion of "the power at any and all times of removing from office all executive officers for cause to be judged by the President alone." It will be a complete surrender of the consti tutional power of the Senate over all appointments to office, for of what practical value will be the required advice and consent of the Senate to an appointment if the person so appointed may the next hour be removed by the action of the Executive alone, regardless of, and, indeed, in despite of, the wishes of the Senate?

It will, moreover, be a virtual surrender of what has been claimed from the origin of the Government to this day, the right to regulate and control, by legislative enactment, the executive power over removals from office of such officers as require confirmation by the Senate, and it will give to the President the unrestrained control of the officers of the Army and Navy, as well as those of the civil service.

It will give license to Andrew Johnson and all future occupants of the presidential office to disregard at pleasure the enactments of the legislative department, and to plead in justification that you have so ruled by your verdict in this case.

It will tend to destroy the harmonious relations of the several departments of the Government, so nicely adjusted, with cheeks and balances and limitations by the wisdom of the fathers of the Constitution, by increasing immensely the powers and privileges of the executive at the expense of the legislative department. Thenceforward the ruler will no longer be the servant of the people, but the people will be the servants of the ruler, and we shall not be able hereafter to say, in the sublime language of the martyred Lincoln, that ours is a Government of the people, by the people, and for the people."

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Believing, as I conscientiously do, that such are the results which must follow the acquittal of Andrew Johnson by this tribunal, and believ ing that the House of Representatives have made good the material charges preferred against him, I cannot doubt as to my duty in the premises. I deeply regret that the necessity for these momentous proceedings has arisen. I would gladly have escaped the solemn responsibility of this hour. But this may not be, and I must, therefore, upon the law and the evidence, in accordance with the dictates of my conscience, and in view of the solemn obligations of my oath, declare that in my judgment Andrew Johnson is guilty of high crimes and misdemeanors as charged by the Representatives of the people.