OPINIONS FILED UNDER THE ORDER OF THE SENATE. Ordered, That when the Senate adjourns to-day, it adjourn to meet on Monday next, at eleven o'clock, a. m., for the purpose of deliberation, under the rules of the Senate, sitting on the trial of impeachments, and that on Tuesday next following, at twelve o'clock in., the Senate shall proceed to vote without debate on the several articles of impeachment; and each Senator shall be permitted to file within two days after the vote shall have been so taken his written opinion, to be printed with the proceedings.-In Senate, Thursday, May 7, 1868. OPINION OF HON. LYMAN TRUMBULL. To do impartial justice in all things appertaining to the present trial, according to the Constitution and laws, is the duty imposed on each Senator by the position he holds and the oath he has taken, and he who falters in the discharge of that duty, either from personal or party considerations, is unworthy his position, and merits the scorn and contempt of all just men. The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Constitution and laws in other respects than those alleged against him. As well might any other fifty-four persons take upon themselves by violence to rid the country of Andrew Johnson because they believed him a bad man as to call upon fifty-four Senators, in violation of their sworn duty, to convict and depose him for any other causes than those alleged in the articles of impeachment. As well might any citizen take the law into his own hands, and become its executioner, as to ask the Senate to convict outside of the case made. To sanction such a principle would be destructive of all law and all liberty worth the name, since liberty unregulated by law is but another name for anarchy. Unfit for President as the people may regard Andrew Johnson, and much as they may desire his removal, in a legal and constitutional way, all save the unprincipled and depraved would brand with infamy and contempt the name of any Senator who should violate his sworn convictions of duty to accomplish such a result. Keeping in view the principles by which, as honest men, we are to be guided, let us inquire what the case is. The first article charges Andrew Johnson, President of the United States, with unlawfully issuing an order, while the Senate was in session, and without its advice and consent, with the intent to remove Edwin M. Stanton from the office of Secretary for the Depart ment of War, contrary to the Constitution and the act regulating the tenure of certain civil offices," passed March 2, 1867. It will be observed that this article does not charge a removal of the Secretary, but only an intent to remove, which is not made an offense by the tenure-of-office act or any other statute; but, treating it as if the President's order had been obeyed, and an actual removal had taken place, would such removal, had it been consummated, have been a violation of the Constitution irrespective of the tenure-of-office act? The question of the power to remove from office arose in 1789, in the First Congress which assembled under the Constitution, and except as to offices SUPPLEMENT--27. whose tenure was fixed by that instrument, advice and consent of the Senate, appointed navy agent to succeed Eastin. June 20, 1864, and while the Senate was in session, President Lincoln removed Isaac Henderson, navy agent at New York, an officer appointed by and with the advice and consent of the Senate, and placed the office in charge temporarily of Paymaster John D. Gibson. the offices placed temporarily in charge of special agents, and it was not till some time after the removals that nominations were made to fill the vacancies. Other cases, during other Administrations, might be referred to, but these are sufficient to show that removals from office by the Presbeen no unusual thing in the history of the ident during the session of the Senate have Government. Isaac V. Fowler, postmaster at New York; Samuel F. Marks, postmaster at New Orleans; and Mitchell Steever, postmaster at Milwaukee, all of whom had previously been appointed by and with the advice and consent of the Senate, were severally removed by the President durIndeed, there is not an instance on recording the sessions of the Senate in 1860 and 1861, prior to the passage of the tenure-of-office act, in which the consent of the Senate had been invoked simply for the removal of an officer. It is appointments to, and not removals from, office that the Constitution requires to be made by and with the advice and consent of the Senate. It is true that an appointment to an office, when the appointee becomes duly qualified, authorizes him to oust the prior incumbent, if there be one, and in that way effects his removal; but this is a different thing from a simple removal. The Constitution makes no distinction between the power of the President to remove during the recess and the sessions of the Senate, nor has there been any in practice. The elder Adams, on the 12th of December, 1800, the Senate having been in session from the 17th of November preceding, in a communication to Timothy Pickering, used this language, "You are hereby discharged from any further service as Secretary of State." Here was a positive dismissal of a Cabinet officer by the President, while the Senate was It is no in session, and without its consent. answer to say that President Adams the same day nominated John Marshall to be Secretary of State in place of "Timothy Pickering, removed." The nomination of a person for an office does not, and never did, effect the removal of an incumbent. And such incumbent, unless removed by a distinct order, holds on till the nominee is confirmed and qualified. The Senate might never have given its advice and consent to the appointment of John Marshall, and did not in fact do so until the following day. The removal of Pickering was complete before Marshall was nominated to the Senate, as the message nominating him shows; but whether this was so or not we all know that a person in office is never removed by the mere nomination of a successor. Thomas Eastin, navy agent at Pensacola, was removed from office by President Van Buren on the 19th of December, 1840, while the Senate was in session, and the office the same day placed temporarily in charge of Dudley Walker, and it was not till the 5th of January following that George Johnson was, by and with the Of the power of Congress to define the tenure of the offices it establishes and make them determinable either at the will of the President alone, of the President and Senate together, or at the expiration of a fixed period, I entertain no doubt. The Constitution is silent on the subject of removals except by impeachment, which it must be admitted only applies to removals for crimes and misdemeanors; and if the Constitution admits of removals in no other way, then a person once in office would hold for life unless impeached, a construction which all would admit to be inadmissible under our form of Government. The right of removal must, then, exist somewhere. The First Congress, in the creation of the Departing in the President, by providing that the ment of War, in 1789, recognized it as existchief clerk should perform the duties of the principal officer, called a Secretary, "whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy." Under this act the power of the President to remove or session of the Senate, is manifest. the Secretary of War, either during the recess law makes no distinction in that respect, and whether it was an inherent power belonging to the President, under the Constitution as President, or was derived from the statute creating the office, is not material so far as relates to the power of the President to remove that officer. The This continued to be the law until the passage of the tenure-of-office act, March 2, 1867; and had the President issued the order for the removal of the Secretary of War prior to the passage of that act, it would hardly be contended by any one that, in so doing, he violated any law constitutional or statutory. The act of March 2, 1867, was passed to correct the previous practice, and had there been no such practice there would have been no occasion for such a law. Did that act, constitutional and valid as it is believed to be, change the law so far as it related to a Secretary then in office, by virtue of an appointment made by a former President during a presidential term which ended March 4, 1865? The language of the first section of the act is: "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 one month thereafter, subject to removal by and with the advice and consent of the Senate." Mr. Lincoln, by and with the advice and consent of the Senate, appointed Mr. Stanton Secretary of War on the 15th of January, 1862, and commissioned him to hold the oflice "dur ing the pleasure of the President of the United States for the time being." He was never reappointed, either by Mr. Lincoln after his reelection, or by Mr. Johnson since Mr. Lincoln's death. The continuance of Mr. Stanton in office by Mr. Lincoln after his second term commenced, and by Mr. Johnson after Mr. Lincoln's death, cannot be construed as a reap pointment during that term, because the word appointed" in the tenure-of-office act must be construed to mean a legal appointment, which could only be made by and with the advice and consent of the Senate. The term of the President by whom Mr. Stanton was appointed, and the one month thereafter, expired nearly two years before the passage of the tenure-ofoffice act. It will not do to say that because Mr. Lincoln was elected for a second term that therefore the term of the President by whom Mr. Stanton was appointed has not expired. The fact that Mr. Lincoln was his own successor in 1865 did not make the two terms one any more than if any other person had succeeded him, and were he now alive the presidential term during which he appointed Mr. Stanton would long since have expired. But Mr. Lincoln, in fact, deceased soon after his second term commenced, and was succeeded by the Vice President, elected for the same term, on whom the office of President was by the Constitution devolved. It has been argued that this is Mr. Lincoln's term. If this be so, it is his second term, and not the term during which Mr. Stanton was appointed; but if this be Mr. Lincoln's and not Mr. Johnson's term, when will the "term of the President" by whom Mr. Browning and the other Cabinet officers appointed since Mr. Lincoln's death expire? Mr. Lincoln never appointed them, and if they are to hold "during the term of the President by whom they were appointed and for one month thereafter" they hold indefinitely, because, according to this theory, Mr. Johnson, the President by whom they were appointed, never had a term, and we have the anomaly of a person on whom the office of President is devolved, and who is impeached as President, and whom the Senate is asked to convict as President, who has no term of office. The clause of the Constitution which declares that the President "shall hold his office during the term of four years" does not mean that the person holding the office shall not die, resign, or be removed during that period, but to fix a term or limit during which he may, but beyond which he cannot, hold the office. If he die, resign, or be removed in the mean time, manifestly the term, so far as he is concerned, has come to an end. The term of the presidential office is four years, but the Constitution expressly provides that different persons may fill the office during that period, and in popular language it is called the term of the person who happens for the time being to be in the office. It is just as impos sible for Mr. Stanton to now serve as Secretary of War for the term of the President by whom he was appointed as it is for Mr. Lincoln to serve out the second term for which he was elected. Both the presidential term of the President who appointed Mr. Stanton and the person who made the appointment have passed away, never to return; but the presidential office remains, filled, however, by another person, and not Mr. Lincoln. It being apparent that so much of the proviso to the first section of the tenure-of-civiloffice act of March 2, 1867, as authorizes the Secretary of War to hold the office for and during the term of the President by whom he was appointed is inapplicable to the case of Mr. Stanton, by what tenure did he hold the office on the 21st of February last, when the President issued the order for his removal? Originally appointed to hold office during the pleasure of the President for the time being, and, as has already been shown, removable at the will of the President, according to the act of 1789, there would seem to be no escape from the conclusion that the President had the right to issue the order for his removal. It has, however, been insisted that if the proviso which secures to the Secretaries the right to hold their respective offices during the term of the President by whom they may have been appointed and for one month thereafter does not embrace Mr. Stanton, because Mr. Johnson did not appoint him, that then, as a civil officer, he is within the body of the first section of the act and entitled to hold his office until by and with the advice and consent of the Senate a successor shall have been appointed and duly qualified. Not so; for the reason that the body of the first section can have no reference to the tenure of an office expressly excepted from it by the words "except as herein otherwise provided," and the provision which follows, fixing a different tenure for the Secretary of War. Can any one doubt that the law was intended to make, and does make a distinction between the tenure of office given to the Secretaries and that given to other civil officers? How, then, can it be said that the tenures are the same, or the same as to any particular Secretaries? commencing on the first Monday of June and November, except as herein otherwise provided; provided, that two terms of the district court in each of the judicial districts in the State of New York shall be held during the year 1868, commencing on the first Mon day of April and September:" manifestly it would at this time be as impossible to comply with so much of the proviso as requires a court to be held in the New York districts in April, 1868, as it now is for Mr. Stanton to serve out the term of the President by whom he was appointed, which ended March 4, 1865. Would that circumstance take the provision for the New York districts out of the proviso, and because, by the body of the act, two terms are required to be held in every judicial district in the United States on the first Monday of June and November, authorize the holding of courts in the New York districts at those periods? It is believed that no judge would for a moment think of giving such a construction to such an act; and yet this is precisely the construction of an act believed to be analogous in principle which must be resorted to to bring Mr. Stanton within the body of the first section of the tenure-of-office act. Laying out of view what was said at the time of the passage of the tenure-of-office act, as to its not interfering with Mr. Johnson's right to remove the Secretaries appointed by his predecessor, and the unreasonableness of a construction of the act which would secure them in office longer than the Secretaries he had himself appointed, and fasten them for life on all future Presidents, unless the Senate consented to the appointment of successors, the conclusion seems inevitable, from the terms of the tenure-of-office act itself, that the Presi dent's right to remove Mr. Stanton, the Secretary of War appointed by his predecessor, is not affected by it, and that, having the authority to remove that officer under the act of 1789, he did not violate either the Constitution or any statute in issuing the order for that par pose. But even if a different construction could be put upon the law, I could never consent to convict the Chief Magistrate of a great people of a high misdemeanor and remove him from office for a misconstruction of what must be admitted to be a doubtful statute, and partieularly when the misconstruction was the same put upon it by the authors of the law at the time of its passage. The second article charges that the Presi dent, in violation of the Constitution, and contrary to the tenure-of-office act, and with intent to violate the same, issued to Lorenzo Thomas a letter of authority empowering him to act as Secretary of War ad interim, there being no vacancy in the office of Secretary of War. There is nothing in the tenure-of-office act, or any other statute, prohibiting the issuing of such a letter, much less making it a crime or misdemeanor. The most that can be said is that it was issued without authority of law. The meaning of the section is not different from what it would be if instead of the words, "every person holding any civil office," there had been inserted the words marshal, district attorney, postmaster, and so on, enumerating and fixing the tenure of all other civil officers except the Secretaries; and then had proceeded to enumerate the different Secretaries and fix for them a different tenure from that given to the other enumerated officers. Had the section been thus written, would any one think, in case a particular Secretary for some personal reason was unable to avail himself of the benefit of the law securing to Secretaries a certain tenure of office, that he would therefore have the right to the benefit of the law in which Secretaries were not mentioned, securing to marshals and others a different tenure of office? The object of an exception or proviso in a stat- The Senate is required to pass judgment ute is to limit or take something out of the body upon each article separately, and each mast of the act, and is usually resorted to for con- stand or fall by itself. There is no allegation venience, as a briefer mode of declaring the in this article of any design or attempt to use object than to enumerate everything embraced the letter of authority, or that any harm came in the general terms of the act, and then pro- from it; and any Senator might well hesitate vide for the excepted matter. The fact that to find the President guilty of a high misde the terms of the proviso which fix the tenure meanor for simply issuing such a letter, alof office of all Secretaries are such that a par- though issued without authority of law. The ticular Secretary, for reasons personal to him-proof, however, shows that the letter was self, cannot take advantage of them, does not operate to take from the proviso the office of a Secretary, and the tenure attached to it, and transfer them to the body of the section which provides a tenure for holding office from which the office of Secretary is expressly excepted. The meaning of this first section will be still more apparent by supposing a case involving the same principle but wholly disconnected with the one under consideration. Suppose Congress were to-day, May 16, 1868, to pass an act declaring that "two terms of the district court in every judicial district of the United States shall be held during the year 1868, issued by the President in connection with the order for the removal of Mr. Stanton, which, as has already been shown, was a valid order. The question, then, arises whether the Presi dent was guilty of a high misdemeanor in issu ing to the Adjutant General of the Army a letter authorizing him, in view of the contemplated vacancy, temporarily to discharge the duties of Secretary of War. Several statutes have been passed providing for the temporary discharge of the duties of an office by some other person in case of a vacancy, or when the officer himself is unable to perform them. The first was the eighth section of the act of May 8, 1792, and is as follows: "That in case of the death, absence from the seat of Government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any other officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.' the Senate was in session; some which were made in vacation were continued in force long after the Senate assembled. Sometimes the temporary officer was the commissioned head of another Department, sometimes a subordinate in the same Department. Sometimes the affairs of the Navy Department have been directed ad interim by a commodore, and those of the War Department by a general." section of the tenure-of-office act recognizes that authority by making it the duty of the President, when such designations are made, to notify the Secretary of the Treasury thereof; and if any one of the Secretaries were to die or resign to-morrow the authority of the President to detail an officer in one of the Departments to temporarily perform the duties of the vacant office, under the act of 1863, would be unquestioned. This would not be the appoint-articles were found by the House of Representment of an officer while the Senate was in atives, of the following resolution: session without its consent, but simply direct The second act, passed February 13, 1795, ing a person already in office to discharge tem declares: "That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secrctary of the Department of War, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed or such vacancy be filled: Provided. That no one vacancy shall be supplied in manner aforesaid for a longer term than six months." Neither of these acts provided for vacancies in the Navy, Interior or Post Office Department. Mr. Lincoln, in 1863, called attention to this defect in a special message, as follows: To the Senate and House of Representatives: I submit to Congress the expediency of extending to other Departments of the Government the authority conferred on the President by the eighth section of the act of the 8th of May, 1792, to appoint a person to temporarily discharge the duties of Secretary of State, of the Treasury, and the Secretary of War, in case of the death, absence from the seat of Government, or sickness of either of those officers. ABRAHAM LINCOLN. WASHINGTON, January 2, 1863. February 20, 1863, Congress passed a third act on this subject, which declares: "In case of the death, resignation, absence from the seat of Government, or sickness of the head of any executive Department of the Government, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize the head of any other executive Department, or other officer in either of said Departments whose appointment is vested in the President at his discretion, to perform the duties of the said respective offices until a successor be appointed, or until such absence or disability by sickness shall cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months." These statutes contain all the legislation of Congress on the subject to which they relate. It has been insisted that, inasmuch as under the act of 1863 the President had no authority to designate any other person to perform the duties of Secretary of War than an officer in that or some of the other Executive Departments, and then in case of vacancy to supply such only as are occasioned by death or resignation, his designation of the Adjutant General of the Army to supply temporarily a vacancy occasioned by removal was without authority. If the act of 1863 repealed the act of 1795 this would doubtless be so; but if it did not repeal it, then the President clearly had the right, under that act, which provided for the temporary discharge of the duties of Secretary of War in any vacancy by any person, to authorize General Thomas temporarily to discharge those duties. The law of 1863, embracing, as it does, all the Departments, and containing provisions from both the previous statutes, may, however, be construed to embrace the whole subject on which it treats, and operate as a repeal of all prior laws on the same subject. It must, however, be admitted that it is by no means clear that the act of 1863 does repeal so much of the act of 1795 as authorizes the President to provide for the temporary discharge of the duties of an office from which an incumbent has been removed, or whose term of office has expired by limitation before the regular appointment of a successor. It has been argued that the tenure-of-office act of March 2, 1867, repealed both the act of 1795 and that of 1863, authorizing the temporary supplying of vacancies in the Departments. This is an entire misapprehension. The eighth 66 Importance is sought to be given to the passage by the Senate, before the impeachment Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim" passed before an adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in passing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed on the trial, shelter himself under such a resolution. I am sure no honest man could. It is known, however, that the resolution coupled the two things, the removal of the Secretary of War and the designation of an officer ad interim, together, so that those who believed either without authority were compelled to vote for the resolution. porarily, in no one case exceeding six months, the duties of another office not then filled. It is the issuing of a letter of authority in as if Senators sitting as a court on the trial respect to a removal, appointment, or employ- of the President for high crimes and misde ment contrary to the provisions" of the ten- meanors would feel bound or influenced in any ure-of-oice act that is made a high misde-degree by a resolution introduced and hastily meanor. As the order for the removal of Mr. Stanton has already been shown not to have been "contrary to the provisions of this act," any letter of authority in regard to it is not forbidden by the sixth section thereof. Admitting, however, that there was no statute in existence expressly authorizing the President to designate the Adjutant General of the Army temporarily to discharge the duties of the office of Secretary of War, made vacant by removal, till a successor, whose nomination was proposed the next day, could be confirmed, does it follow that he was guilty of a high misdemeanor in making such temporary designation when there was no law making it a penal offense or prohibiting it? Prior to 1863, as Mr. Lincoln's message shows, there was no law authorizing these temporary desig- || nations in any other than the three Departments of State, Treasury, and War; and yet President Lincoln himself, on the 22d of September, 1862, prior to any law authorizing it, issued the following letter of authority appointing a Postmaster General ad interim: I hereby appoint St. John B. L. Skinner, now acting First Assistant Postmaster General, to be acting Postmaster General ad interim, in place of Hon. Montgomery Blair, now temporarily absent. ABRAHAM LINCOLN. WASHINGTON, September 22, 1862. To provide for temporary disabilities or vacancies in the Navy Department, and for which no law at the time existed, President Jackson, during his administration, made ten different designations or appointments of Secretaries of the Navy ad interim. Similar ad interim desig. nations in the Navy Department were made by Presidents Van Buren, Harrison, Tyler, Polk, Filmore, and others; and these appointments were made indiscriminately during the sessions of the Senate as well as during its recess. As no law authorizing them existed at the time Navy and Post Office Departments, it must be these ad interim appointments were made in the admitted that they were made without authority of law; and yet, who then thought, or would now think, of impeaching for high crimes and misPresident Buchanan, in a communication to the Senate made January 15, 1861, on the subject of ad interim appointments, used this language: demeanors the Presidents who made them? "Vacancies may occur at any time in the most important offices which cannot be immediately and permanently filled in a manner satisfactory to the appointing power. It was wise to make a provision which would enable the President to avoid a total suspension of business in the interval, and equally wise so to limit the executive discretion as to prevent any serious abuse of it. This is what the framers of the act of 1795 did, and neither the policy nor the constitutional validity of their law has been questioned for sixty-five years. "The practice of making such appointments, whetherin a vacation or during thesession of Congress, has been constantly followed during every Administration from the earliest period of the Government, and its perfect lawfulness has never, to my knowledge, been questioned or denied. Without going back further than the year 1829, and without taking into the calculation any but the chief officers of the several Departments, it will be found that provisional appointments to fill vacancies were made to the numof one hundred and seventy-nine from the commencement of General Jackson's administration to the close of General Pierce's. This number would probably be greatly increased if all the cases which occurred in the subordinate offices and bureaus were added to the count. Some of them were made while My understanding at the time was, that the act of 1863 repealed that of 1795 authorizing the designation of a Secretary of War ad interim in the place of a Secretary removed; but I never entertained the opinion that the President had not power to remove the Secretary of War appointed by Mr. Lincoln during his first term. Believing the act of 1795 to have been repealed, I was bound to vote that the President had no power under the law to designate a Secretary of War ad interim to fill a vacancy caused by removal, just as I would feel bound to vote for a resolution that neither President Jackson nor any of his successors had the power, under the law, to designate ad interim Postmasters General or Secretaries of the Navy and Interior prior to the act of 1863; but it by no means follows that they were guilty of high crimes and misdemeanors in making such temporary designations. They acted with such appointments. Johnson claims, and not out the shadow of statutory authority in making without plausibility, that he had authority under the act of 1795 to authorize the Adjutant General of the Army to perform temporarily the duties of Secretary of War; but if that act was repealed, even then he simply acted as his predecessors had done with the acquiescence of the nation for forty years before. Considering that the facts charged against the President in the second article are in no respect contrary to any provision of the tenure-of-office act; that they do not constitute a misdemeanor, and are not forbidden by any statute; that it is a matter of grave doubt whether so much of the act of 1795 as would expressly authorize the issuing of the letter of authority to General Thomas is not in force, and if it is not, that President Johnson still had the same authority for issuing it as his predecessors had exercised for many years without objection in the Navy, Interior, and Post Office Departments, it is impossible for me to hold him guilty of a high misdemeanor under that article. To do so would, in my opinion, be to disregard, rather than recognize, that impartial justice I am sworn to administer. What has been said in regard to the second article applies with equal force to the third and eighth articles: there being no proof of an unlawful intent to control the disbursements of the moneys appropriated for the military service, as charged in the eighth article. Articles four, five, six, and seven, taken together, charge in substance that the President conspired with Lorenzo Thomas and other persons with intent, by intimidation and threats, to prevent Edwin M. Stanton from holding the office of Secretary of War, and by force to seize and possess the property of the United States in the Department of War; also that he conspired to do the same things contrary to the tenure-of office act, without any allegation of force or threats. The record contains no sufficient proof of the intimidation, threats, or force charged; and as the President had, in my opinion, the right to remove Mr. Stanton, his order for that purpose, as also that to General Thomas to take possession, both peacefully issued, have, in my judgment, none of the elements of a conspiracy about them. The ninth article, known as the Emory article, is wholly unsupported by evidence. The tenth article, relating to the speeches of the President, is substantially proven, but the speeches, although discreditable to the high office he holds, do not, in my opinion, afford just ground for impeachment. So much of the eleventh article as relates to the speech of the President made August 18, 1866, is disposed of by what has been said on the tenth article. The only proof to sustain the allegation of unlawfully attempting to devise means to prevent Edwin M. Stanton from resuming the office of Secretary of War is to be found in a letter from the President to General Grant, dated February 10, 1868, written long after Mr. Stanton had been restored. This letter, referring to a controversy between the Presi dent and General Grant in regard to certain communications, oral and written, which had passed between them, shows that it was the President's intent, in case the Senate did not concur in Stanton's suspension, to compel him to resort to the courts to regain possession of the War Department, with a view of obtaining a judicial decision on the validity of the tenureof office act; but the intention was carried out, and Stanton took possession by the voluntary surrender of the office by General Grant. Was this intent or purpose of the President to obtain a judicial decision in the only way then practicable a high misdemeanor? It is unnecessary to inquire whether the President would have been justified in carrying his intention into effect. It was not done and his entertaining an intention to do it constituted, in my opinion, no offense. There is, however, to my mind another conclusive answer to this charge in the eleventh article. The President, in my view, had authority to remove Mr. Stanton, and this being so, he could by removal at any time have lawfully kept him from again taking possession of the office. never There is no proof to sustain the other charges of this article. In coming to the conclusion that the President is not guilty of any of the high crimes and misdemeanors with which he stands charged, I have endeavored to be gov erned by the case made without reference to other acts of his not contained in the record, and without giving the least heed to the clamor of intemperate zealots who demand the conviction of Andrew Johnson as a test of party faith, or seek to identify with and make responsible for his acts those who from convictions of duty feel compelled on the case made to vote for his acquittal. His speeches and the general course of his administration have been as distasteful to me as to any one, and I should consider it the great calamity of the age if the disloyal element, so often encouraged by his measures, should gain political ascendency. If the question was, Is Andrew Johnson a fit person for President? I should answer, no; but it is not a party question, nor upon Andrew Johnson's deeds and acts, except so far as they are made to appear in the record, that I am to decide. Painful as it is to disagree with so many political associates and friends whose conscientious convictions have led them to a different result, I must, nevertheless, in the discharge of the high responsibility under which I act, be governed by what my reason and judgment tell me is the truth, and the justice and the law of this case. What law does this record show the President to have violated? Is it the tenure-of-office act? I believe in the consti tutionality of that act, and stand ready to do he intended to violate the laws or the Constitution of the United States. To this answer there is a general traverse by the House of Representatives, and thereon issue is joined; of that issue we are the triers, and have sworn that in that capacity we will do "impartial justice according to the Constitution and the laws." It will be perceived that there is nothing involved in the first eight articles of impeachment but pure questions of law growing out of the construction of statutes. Mr. Johnson's guilt or innocence upon those articles depends wholly on the fact whether or not he had the power, after the passage of the tenure-of-office act of March 2, 1867, to remove Mr. Stanton and issue the letter of appointment to General Thomas, and upon the further fact, whether, having no such legal authority, he nevertheless attempted to exercise it "with intent to violate the Constitution of the United States." Mr. Stanton was appointed Secretary for the Department of War by Mr. Lincoln on the 15th day of January, 1862, and has not since been reappointed or recommissioned. His commission was issued to continue "for and during the was made under the act of August 7, 1789, the first two sections of which read as follows: "There shall be an executive Department to be denominated the Department of War; and there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, and the said principal officer shall conduct the business of the said Department in such manner as the President of the United States shall from time to time order and instruet. There shall be in the said Department an inferior officer, to be appointed by said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk of the Department of War; and whenever the said principal officer shall be removed from office by the President of the United States, and in any other case of vacancy, shall, during the same, have charge of the records, books," &c. Once set the example of impeaching a Pres-pleasure of the President." His appointment ident for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, as several of those now alleged against the President were decided to be by the House of Representatives only a few months since, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty. OPINION OF HON. JAMES W. GRIMES. The President of the United States stands at the bar of the Senate charged with the commission of high crimes and misdemeanors. The principal offense charged against him is embodied in various forms in the first eight articles of impeachment. This offense is alleged to consist in a violation of the provisions of the first section of an act of Congress enti tled "An act regulating the tenure of certain civil offices," approved March 2, 1867, in this, that on the 21st day of February, 1868, the President removed, or attempted to remove, Edwin M. Stanton from the office of Secretary for the Department of War, and issued a letter of authority to General Lorenzo Thomas as Secretary for the Department of War ad interim. The House of Representatives charge in their three first articles that the President attempted to remove Mr. Stanton, and that he issued his letter of authority to General Thomas with an intent to violate the law of Congress, and with the further "intent to violate the Constitution of the United States." The President, by his answer, admits that he sought to substitute General Thomas for Mr. Stanton at the head of the Department of War; but insists that he had the right to make such substitution under the laws then and now in force, and denies that in anything that he has done or attempted to At the same session of Congress was passed the act of July 27, 1789, creating the Department of Foreign Affairs. The two first sections of the two acts are precisely similar except in the designations of the two Departments. Upon the passage of this last act occurred one of the most memorable and one of the ablest debates that ever took place in Congress. The subject under discussion was the tenure of public officers, and especially the tenure by which the Secretaries of the Executive Departments should hold their offices. Without going into the particulars of that great debate, it is sufficient to say that the reasons assigned by Mr. Madison and his associates in favor of a tenure during the pleasure of the President" were adopted as the true constitutional theory on this subject. That great man, with almost a prophetic anticipation of this case, declared on the 16th June, 1789, in his speech in the House of Representatives, of which he was a member from Virginia, that "It is evidently the intention of the Constitution that the First Magistrate should be responsible for the executive department. So far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him he is not res ponsible to the country. Again, is there no danger that an officer, when he is appointed by the concur rence of the Senate and his friends in that body, may choose rather to risk his establishment on the favor of that branch than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy reduce the power of the President to a mere vapor, in which case his responsibility would be annihilated, and the expectation of it unjust. The bigh executive officers joined in cabal with the Senate would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution of the Government." It will be observed that it is here contended that it is the Constitution that establishes the tenure of office. And in order to put this question beyond future cavil, Chief Justice Marshall, in his Life of Washington, volume 2, page 162, says: "After an ardent discussion, which consumed several days, the committee divided, and the amendment was negatived by a majority of thirty-four to twenty. The opinion thus expressed by the House of Representatives did not explicitly convey their sense of the Constitution. Indeed, the express grant of the power to the President rather implied a right in the Legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson moved in the House, when the report of the Committee of the Whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the President. He gave notice that if he should succeed in this he would move to strike out the words which had been the subject of debate. If those words continued, he said, the power of removal by the President might hereafter appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was by fair construction fixed in the Constitution. The motion was seconded by Mr. Madison, and both amendments were adopted." And Judge Marshall adds: As the bill passed into a law it has ever been considered as a full expression of the sense of the Legislature on this important part of the American Constitution." And Chancellor Kent says, when speaking of the action of this Congress, many of the members of which had been members of the Convention that framed the Constitution, the chiefest among them, perhaps, being Madison, who has been called the father of that instrument: "This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as of decisive authority in the case. It applies equally to every other officer of the Government appointed by the President and Senate whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Sen of the proviso to the first section is to prescribe a tenure for the office of Secretary different from the tenure.fixed for other civil officers. This is known to have been done on account of the marked difference between the heads of Departments and all other officers, which made it desirable and necessary for the public service that the heads of Departments should go out of office with the President by whom they were appointed. It would, indeed, be a strange result of the law if those Secretaries appointed by Mr. Lincoln should hold by the tenure fixed by the act for ordinary civil officers, while all the other Secretaries should hold by a different tenure; that those appointed by the present and all future Presidents should hold only during the term of the President by whom they may have been appointed, while those not appointed by him should hold indefinitely; and this under a law which undertakes to define the tenure of all the Secretaries who are to hold their offices under the law. I cannot come to that conclusion. My opinion is, that if Mr. Stanton's tenure of office is prescribed by this law at all, it is prescribed to him as Secretary of War, under and by force of the proviso to the first section; and if his case is not included in that proviso it is not included in the law at all. It is clear to my mind that the proviso does not include, and was not intended to include, Mr. Stanton's case. It is not possible to apply to his case the language of the proviso unless we suppose it to have been intended to legislate him out of office; a conclusion, I consider, ate was an exception to a general principle, and ought wholly inadmissable. He was appointed by to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it."-1 Kent. Com., 310. Thus the Constitution and the law stood as expounded by the courts, as construed by commentators and publicists, as acted on by all the Presidents, and acquiesced in by all of the Congresses from 1789 until the 2d March, 1867, when the tenure-of-office act was passed. The first section of this 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 a like manner appointed and duly qualified, except as herein otherwise provided.” Then comes what is "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." The controversy in this case grows out of the construction of this section. How does it affect the act of 1789, and does it change the tenure of office of the Secretary for the Department of War as established by that act? To that inquiry I propose to address myself. I shall not deny the constitutional validity of the act of March 2, 1867. That question is not necessarily in this case. The first question presented is, is Mr. Stanton's case within the provisions of the tenureof-office act of March 2, 1867? Certainly it is not within the body of the first section. The tenure which that provides for is not the tenure of any Secretary. All Secretaries whose tenure is regulated by this law at all are to go out of office at the end of the term of the President by whom they shall be appointed, and one month thereafter, unless sooner removed by the President, by and with the advice and consent of the Senate, while all other civil officers are to hold until a successor shall be appointed and duly qualified. The office of Secretary has attached to it one tenure; other civil officers another and different tenure, and no one who holds the office of Secretary can, by force of this law, hold by any other tenure than the one which the law specially assigns to that office. The plain intent President Lincoln during his first term of office. He cannot hereafter go out of office at the end of the term of the President by whom he was appointed. That term was ended before the law was passed. The proviso, therefore, cannot have been intended to make a rule for his case; and it is shown that it was not intended. This was plainly declared in debate by the conference committee, both in the Senate and in the House of Representatives, when the proviso was introduced and its effect explained. The meaning and effect of the proviso were then explained and understood to be that the only tenure of the Secretaries provided for by this law was a tenure to end with the term of service of the President by whom they were appointed, and as this new tenure could not include Mr. Stanton's case, it was here explicitly declared that it did not include it. When this subject was under consideration in the House of Representatives on the report of the conference committee on the disagreeing vote of the two Houses, Mr. SCHENCK, of Ohio, chairman of the conference committee on the part of the House, said: "It will be remembered that by the bill as it passed the Senate it was provided that the concurrence of the Senate should be required in all removals from office, except in the case of the heads of Departments. The House amended the bill of the Senate so as to extend this requirement to the heads of Departments as well as to their officers. "The committee of conference have agreed that the Senate shall accept the amendment of the House. But, inasmuch as this would compel the President to keep around him heads of Departments until the end of his term who would hold over to another term, a compromise was made by which a further amendment is added to this portion of the bill, so that the term of office of the heads of Departments shall expire with the term of the President who appointed them, allowing these heads of Departments one month longer." When the bill came to the Senate and was considered on the disagreeing vote of the two Houses, and Mr. DOOLITTLE, of Wisconsin, charged that although the purpose of the measure was, in his opinion, to force the President, against his will to retain the Secretaries appointed by Mr. Lincoln, yet that the phraseology was such that the bill, if passed, would not accomplish that object, Mr. SHERMAN, of Ohio, who was a member of the conference committee and assisted to frame the proviso, said: "I do not understand the logic of the Senator from Wisconsin. He first attributes a purpose to the committee of conference which I say is not true. I say that the Senate have not legislated with a view to any persons or any President, and therefore he com-, mences by asserting what is not true. We do not legislate in order to keep in the Secretary of War, the Secretary of the Navy, or the Secretary of State." Then a conversation arose between the Senator from Ohio and another Senator, and the Senator from Ohio continued thus: "That the Senate had no such purpose is shown by its vote twice to make this exception. That this provision does not apply to the present case is shown by the fact that its language is so framed as not to apply to the present President. The Senator shows that himself, and argues truly that it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State. And if I supposed that either of these gentlemen was so wanting in manhood, in honor, as to hold his place after the politest intimation by the President of the United States that his services were no longer needed, I certainly, as a Senator, would consent to his removal at any time, and so would we all." 66 Did any one here doubt the correctness of Mr. SHERMAN's interpretation of the act when he declared that it would not prevent the present President from removing the Secretary of War, the Secretary of the Navy, and the Secretary of State?" Was there any dissent from his position? Was there not entire acquiescence in it? Again, said Mr. SHERMAN: "In this case the committee of conference-I agreed to it, I confess, with some reluctance-came to the conclusion to qualify to some extent the power of removal over a Cabinet minister. We provide that a. Cabinet minister shall hold his office not for a fixed term, not until the Senate shall consent to his removal, but as long as the power that appoints him holds office." But whatever may have been the character of the debates at the time of the passage of the law, or whatever may have been the contemporaneous exposition of it, I am clearly convinced that the three Secretaries holding over from Mr. Lincoln's administration do not fall within its provisions under any fair judicial interpretation of the act; that Mr. Stanton held his office under the act of 1789, and under his only commission, issued in 1862, which was at the pleasure of the President; and I am, consequently, constrained to decide that the order for his removal was a lawful order. Any other construction would involve us in the absurdity of ostensibly attempting to limit the tenure of all Cabinet officers to the term of the officer having the power to appoint them, yet giving to three of the present Cabinet ministers an unlimited tenure; for, if the construction contended for by the Managers be the correct one, while four of the present Cabinet officers will go out of office absolutely, and without any action by the Senate, on the 4th of April next, they having been appointed by Mr. Johnson, the three Cabinet officers appointed by Mr. Lincoln will hold by another and different tenure, and cannot be removed until the incoming President and the Senate shall mutually agree to their removal. If I have not erred thus far in my judgment, then it follows that the order for the removal of Mr. Stanton was not a violation of the Constitution of the United States by reason of its having been issued during the session of the Senate. If Mr. Stanton held his office at the pleasure of the President alone under the act of 1789, as I think he did, it necessarily follows that the President alone could remove him. The Senate had no power in reference to his continuance in office. I am wholly unable to perceive, therefore, that the power of the President to remove him was affected or qualified by the fact that the Senate was in session. It has sometimes been put forward, as it was by Mr. Webster in the debate of 1835, that the usual mode of removal from office by the Presi dent during a session of the Senate had been by the nomination of a successor in place of A B, removed. This would naturally be so in all cases except the few in which the officer could not be allowed, consistently with the public safety, to continue in office until his successor should be appointed and qualified and also should refuse to resign. Such cases cannot often have occurred. But when they have occurred, I believe the President has exercised that power which was understood to |