the necessity of construing a law passed by one House with a different intention from that which animated the other. I am, of course, left to determine the true intent and meaning of the law by the law itself, giving to its language its ordinary legal scope and signification.

Coming thus to the consideration of the first section of the act, (which alone is material to this inquiry,) it will be observed that it does not deal with the incidents of offices, but with the franchises of persons. It regulates tenures, not terms, of office. It is only the opposite view, which has no sanction in the statute, that can lead to a misconception of its scope.

The word tenure comes to us from the law of real estate:

"The thing holden is styled a tenement, the possessors tenants, and the manner of their possession a tenure."-2 Bla, Com., 60.

Webster defines the word as follows: "Tenure: the act or right of holding as property. Manner of holding in general."

It is a right or title pertaining to a person, and as such is treated throughout the statute. The body of the section comprehends "every person holding civil office," and is restricted only by a single exception, namely, the persons described in the proviso as holding their offices during the term of the President by whom they were appointed. The counsel for the President (page 1099, Impeachment Trial) quotes the proviso:

"That does not mean the men; it means the offices shall have that tenure."

This certainly sounds like absurdity. The Secretary of State or of War is not an office but an officer; a person holding an office. An office has no tenure; the possessor of an office has that "manner of possession," that "act or right of holding," that "manner of holding," which is a tenure. The absurdity becomes apparent if we read the proviso according to the construction of the ingenious counsel for the President;

"The offices of Secretary of State, of War, &c., shall hold their respective offices," &c.

It follows, therefore, as suggested by one of the Managers, that it is immaterial whether we consider Mr. Stanton as holding his office during the term of the President by whom he was appointed or not; all agree that he was holding the office; if within the term of the President by whom he was appointed he is embraced in the proviso; if not within such term, he was a "person holding civil office," and protected by the body of the section.

If, now, I turn to contemporaneous construction to ascertain the meaning of the law, I find such a construction given both by the executive and legislative departments of the Government. Whatever the President or his Cabinet may have thought before the final passage of the act of its effect upon Mr. Stanton, a period arrived within a few months after its passage when it became necessary for Mr. Johuson to give it a practical construction. He informs us that he proceeded with great and anxious deliberation, and the evidence before us demonstrates that he arrived at the conclusion that Mr. Stanton was within the act.

On the 12th of August, 1867, the President suspended the Secretary of War from office, in conformity with the provisions of the act. By the same authority he appointed General Grant Secretary ad interim. He notified the Secretary of the Treasury of his action, citing the act by name as the authority for such notification. He sent in his reasons to the Senate, pursuant to the law, and, as he informs us, hoped for the concurrence of the Senate and the removal of the Secretary, in accordance with the law.

It is too late now to do away with the effect of this executive construction by the assertion that a power of suspension has been discovered in the Constitution which has never been exer

cised and never thought of before since the foundation of the Government.

Upon the presentation of the President's reasons for the removal of the Secretary the Senate gave a legislative construction to the statute. It proceeded in exact conformity with the terms of the law; it considered the reasons; it debated them; it refused to concur in them, and sent notice thereof to the President. I am not aware that a single Senator in that debate suggested that Mr. Stanton was suspended by virtue of the Constitution, or that he was not embraced in the protection of the tenure-ofoffice act.

Upon, then, a fair consideration of the debates accompanying the passage of the act, upon the proper construction of the language of the act itself, and upon the contemporaneous construction given to it by the executive and legislative branches of the Government, I find Mr. Stanton to be embraced within the provisions of the first section.

I find, therefore, the act to be valid, and that it includes Mr. Stanton in its protection against the presidential power of removal without the consent of the Senate.

I find that the President has deliberately broken this law, and, by its express terms, has, in so doing, committed a high misdemeanor.

in favor of or against the whole system of reconstruction adopted by Congress, according to the views of the possessor. Mr. Stanton was known to favor that system, as the President himself declares in the letter to General Grant.

And herein I find the intent of the President in this removal of the Secretary an intent to defeat the will of the people already crystallized into law, and substitute his own will instead; an intent unlawful, unconstitutional, and revolutionary, and which, breaking out into overt act, in the removal of Mr. Stanton, gives to that act a deeper tinge of guilt than attaches to any mere violation of a penal

statute.

Complaint has been made because upon this question of intent the Senate refused to hear the testimony of Cabinet officers as to the advice given by them to the President. I cannot conceive of any proposition more dangerous to the stability of our institutions than that the President may shield himself from impeachment for high crimes and misdemeanors behind the advice of his Secretaries. Apart from the common-law objection of irrelevancy, such evidence should be excluded upon the gravest considerations of public policy.

cle of impeachment.

But I do not find, in fact, that it was the intention of the President to try the constitutional question. The means adopted were not adapted to that end. Upon the removal of Mr. Stanton the latter could have no remedy in the courts, and the President, though time and opportunity have been ample since the passage of the law, has never attempted to initiate legal proceedings himself.

The evidence in this case exhibits the real intent with perfect clearness. The declarations of the President at different periods during the last two years, as proved before us; his intermeddling with the southern Legislatures in opposition to Congress, as shown by the Alabama telegram; his conversation with Wood, unfolding his purpose of distributing a patronage, whose emoluments exceed twenty. one million dollars a year, for the purpose of creating a party hostile to the measures of Congress all these demonstrate a fixed and unconstitutional design to "defeat" and "prevent" the execution of the laws. Grant that he was honest in all this, and that he believed that the laws ought to have been defeated. So were Charles I and James II honest in their ideas of the royal prerogative; but those ideas brought one to the block and cost the other his crown. In this country the Legislature is the organ of the people, and the laws are the people's will. For the Executive to set his own will in opposition to the will of the people, expressed through Congress, and employ the powers vested in him for other purposes to that end, is repugnant to the whole spirit of the Constitution.

Yet the evidence leaves no doubt that such has been the persistent course of the President for more than two years. In this course Mr. Stanton had become a formidable obstacle to the designs of Mr. Johnson. The message of the latter of December 12, 1867, communicating the reasons for the suspension of the Secretary, and the answer to the first article of impeachment, disclose the irreconcilable nature of their differences, and, as is evident from the President's letter to General Grant, these differences culminated soon after the passage of the supplementary reconstruction bill of March 23, 1867. From the time of the passage of that bill the possession of the Depart ment of War would confer vast influence either

It is a necessary result of this opinion that I also find him guilty of high misdemeanors as charged in the second, third, eighth, and elev enth articles of impeachment. I do not think it needful to elaborate the legal and logical connection, as it will be obvious to any careful reader of the articles themselves, keeping in mind that the construction suggested by the Chief Justice is applied to the eleventh article, as before stated.

OPINION

OF

HON. WILLIAM P. FESSENDEN.

The House of Representatives have, under the Constitution of the United States, presented to the Senate eleven distinct articles of im peachment for high crimes and misdemeanors against the President. Each Senator has solemnly sworn, as required by the Constitution, to "do impartial justice according to the Consu tution and the laws," upon the trial. It needs no argument to show that the President is on trial for the specific offenses charged, and for none other. It would be contrary to every principle of justice, to the clearest dictates of right, to try and condemn any man, however guilty he may be thought, for an offense not charged, of which no notice has been given to him, and against which he has had no oppor tunity to defend himself. The question theu is, as proposed to every Senator, sitting as a judge, and sworn to do impartial justice, is the President guilty or not guilty of a high crime or misdemeanor, as charged in all or either of the articles exhibited against him?"

The first article of the series substantially charges the President with having attempted to remove Edwin M. Stanton from the office of Secretary of War, which he rightfully held, in violation of law and of the Constitution of the United States. Granting that an illegal and unconstitutional attempt to remove Mr. Stanton in the manner alleged in the article, whether successful or not, is a high misdemeanor in office, the first obvious inquiry presents itself, whether under the Constitution and the laws the President had or had not a right to remove that officer at the time such attempt was made, the Senate being then in session. To answer this inquiry it is necessary to examine the several provisions of the Constitution bearing upon the question, and the laws of Congress applicable thereto, together with the practice, if any, which has prevailed since the formation of the Gor ernment upon the subject of removals from office.

The provisions of the Constitution applicable to the question are very few. They are as follows:

ARTICLE 11. SECTION 1. "The executive power shall be vested in a President of the United States of America.

"ART. 11. SEC. 2. He[the President?"

'shall nominate, and, by and with the advice and consent of the Senate, shall appoint, embassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." Same section:

"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.

ART. 11.SEC. 4. The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors."

The whole question of removals from office caine under the consideration of the First Congress assembled after the adoption of the Constitution and was much discussed by the able men of that day, among whom were several who took a prominent part in framing that instrument. It was noticed by them that the only provision which touched in express terms upon the subject of removals from office was found in the clause which related to impeachment; and it was contended that, consequently, there was no other mode of removal. idea, however, found no favor at the time, and seems never since to have been entertained. It is quite obvious that as such a construction would lead to a life tenure of office, a supposition at war with the nature of our Government, and must of necessity involve insuperable difficulties in the conduct of affairs it could not be entertained.

This

But it was equally obvious that a power of removal must be found somewhere, and as it was not expressly given except in the impeach ment clause, it must exist among the implied powers of the Constitution. It was conceded by all to be in its nature an executive power; and while some, and among them Mr. Madison, contended that it belonged to the President alone, because he alone was vested with the executive power, and, from the nature of his obligations to execute the law and to defend the Constitution, ought to have the control of his subordinates, others thought that as he could only appoint officers "by and with the advice and consent of the Senate" the same advice and consent should be required to authorize their removal. The first of these constructions finally prevailed, as those who have read the debates of that period well know. This was understood and avowed at the time to be a legislative construction of the Constitution, by which the power of removal from office was recognized as exclusively vested in the President. Whether right or wrong, wise or unwise, such was the decision, and several laws were immediately enacted in terms recognizing this construction of the Constitution.

The debate referred to arose upon a bill for establishing what is known as the Department of State. And in accordance with the decision of that First Congress the right and power of the President to remove the chief officer of that Department expressly recognized in the second section, as follows:

*

"SEC. 2. And be it further enacted, That there shall be in the said Department an interior officer," &c.. who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have the charge," &c.-Act approved July 27, 1789.

The same provision is found in totidim verbis in the act establishing the Department of War, approved August 7, 1789; and terms equally definite are found in the act to establish the Treasury Department, approved September 2, 1789. These several acts have continued in force to the present day; and although the correctness of the legislative construction then established has more than once been questioned by eminent statesmen since that early period, yet it has been uniformly recog

nized in practice, so long and so uniformly as to give it the force of constitutional authority. A striking illustration of this practical construction arose in the administration of John Adams, who, when the Senate was in session, removed Mr. Pickering from the office of Secretary of State without asking the advice and consent of the Senate, nominating to that body for appointment on the same day John Marshall, in the place of Timothy Pickering, removed. No question seems to have been made at the time of this exercise of power. The form of all commissions issued to the heads of Departments, and to other officers whose tenure was not limited by statute, has been "during the pleasure of the President for the time being." And the right to remove has been exercised without restraint, as well upon officers who were appointed for a definite term as upon those who held during the pleasure of the President.

It has been argued that even if this right of removal by the President may be supposed to exist during the recess of the Senate, it is otherwise when that body is in session. I am tion, or to find any proof that it has been reunable to perceive the grounds of this distinecognized in practice. The Constitution makes no such distinction, as it says nothing of removal in either of the clauses making distinct provis ions for appointment in recess and during the session. Probably this idea had its origin in the fact that in recess the President could appoint for a definite period without the advice and consent of the Senate, while in the other case no appointment could be made without that advice and consent. It has been uniformly held that a vacancy occurring in time of a session can only be filled during session by and with the advice and consent of the Senate, and cannot be lawfully filled during recess. But I am not aware that the President's power of removal during the session has ever been seriously questioned while I have been a member of the Senate. The custom has undoubtedly been to make the nomination of a successor the first step in a removal, so that the two acts were substantially one and the same. But instances have not unfrequently occurred dur ing session where the President thought it proper to remove an officer at once, before sending the name of his successor to the Senate. And during my time of service previous to the passage of the act of March 2, 1867, I never heard his right to do so seriously ques tioned. The passage of that act is, indeed, in itself an admission that such were understood to be the law and the practice.

I will not attempt to discuss the question here whether the construction of the Constitution thus early adopted is sound or unsound. Probably it was thought that while the restraining power of the Senate over appointments was a sufficient protection against the danger| of executive usurpation from this source, the President's responsibility for the execution of the laws required a prompt and vigorous check upon his subordinates. Judging from the short experience we have had under the act of March 2, 1867, the supervising power of the Senate over removals is poorly calculated to secure a prompt and vigorous correction of abuses in office, especially upon the modern claim that where offices are of a local character the representative has a right to designate the officer; under which claim this branch of executive authority, instead of being lodged where the Constitution placed it, passes to one of the legislative branches of the Government.

Such as I have described was the legislative construction of the Constitution on the subject of removals from office, and the practice under it, and such was the statute establishing the Department of War, distinctly recognizing the President's power to remove the principal officer of that Department at pleasure, down to the passage of the act regulating the tenure of certain civil offices, which became a law March 2, 1867. Although that act did not receive my vote originally, I did vote to overrule the President's veto, because I was not then, and am

not now, convinced of its unconstitutionality, although I did doubt its expediency, and feared that it would be productive of more evil than good. This is not the occasion, however, to criticise the act itself. The proper inquiry is, whether the President, in removing, or attempt ing to remove, Mr. Stanton from the othice of Secretary of War, violated its provisions; or, in other words, whether, if the President had a legal right to remove Mr. Stanton before the passage of that act, as I think he clearly had, he was deprived of that right by the terms of the act itself. The answer to this question must depend upon the legal construction of the first section, which reads as follows, namely:

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

In considering how far these provisions apply to the case of Mr. Stanton, the state of existing facts must be carefully borne in mind.

Mr. Stanton was appointed by President Lincoln during his first term, which expired on the 4th of March, A. D. 1865. By the terms of his commission he was to hold "during the pleasure of the President for the time being." President Lincoln took the oath of office, and commenced his second term on the same 4th day of March, and expired on the 15th day of the succeeding April. Mr. Johnson took the oath of office as President on the day of the death of President Lincoln. Mr. Stanton was not appointed Secretary of War by either, but continued to hold under his original commission, not having been removed. How, under these circumstances, did the act of March 2, 1867, affect him?

A preliminary question as to the character under which Mr. Johnson administered the office of President is worthy of consideration, and may have a material bearing.

of the Constitution, provides as follows, namely: The fifth clause of section one, article eleven,

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve upon the Vice President."

What shall devolve upon the Vice President? The powers and duties of the office simply, or the office itself? Some light is thrown upon this question by the remainder of the same clause, making provision for the death, &c., of both the President and Vice President, enabling Congress to provide by law for such a contingency, as to declare "what officer shall act as President," and that such officer shall act accordingly”—a very striking change of phraseology. The question has, however, in two previous instances, received a practical construction. In the case of Mr. Tyler, and again in that of Mr. Fillmore, the Vice President took the oath as President, assumed the name and designation, and was recognized as constitutionally President of the United States, with the universal assent and consent of the nation. Each was fully recognized and acknowledged to be President, as fully and completely, and to all intents, as if elected to that office.

Did

Mr. Johnson then became President. he have a term of office? Was he merely the tenant or holder of the term of another, and that other his predecessor, President Lincoln? Did Mr. Lincoln's term continue after his death, as has been argued? It is quite manifest that two persons cannot be said to have one and the same term of the Presidency at the same time. If it was Mr. Lincoln's term, it was not Mr. Johuson's. If it was Mr. Johnson's, it was not Mr. Lincoln's. If Mr. Johnson had no term, when do the Secretaries appointed by him go out of office, under the

act of March 2, 1867? When does the one month after "the expiration of the term of the President by whom they have been appointed" expire? A President without a term of office would, under our system, be a singular anomaly, and yet to such a result does this argument lead. I am unable to give my assent to such a proposition.

If Mr. Stanton was legally entitled to hold the office of Secretary of War on the 21st of February, 1868, as averred in the first article, he must have been so entitled by virtue of his original appointment by President Lincoln, for he had received no other appointment. If the act of March 2, 1867, terminated his office, he must, to be legally in office on the 21st of February, 1868, have been again appointed and confirmed by the Senate. He must, therefore, be assumed to have held under the commission by the terms of which he held "during the pleasure of the President for the time being.' After the death of President, Lincoln, then, he held at the pleasure of President Johnson, by his permission, up to the passage of the act of March 2, 1867, and might have been removed by him at any time. Did that act change his tenure of office without a new appointment, and transform what was before a tenure at will into a tenure for a fixed period? Granting that this could legally be done by an act of Congress, which may well be questioned, the answer to this inquiry must depend upon the terms of the act itself. Let us examine it.

It is obvious to my mind that the intention was to provide for two classes of officers; one, the heads of Departments, and the other comprising all other officers, appointed by and with the advice and consent of the Senate. The act provides a distinct tenure for each of these classes; for the heads of Departments a fixed term, ending in one month after the expiration of the term of the President by whom they were appointed; for all others an indefinite term, ending when a successor shall have been appointed and duly qualified. These two provisions are wholly unlike each other. Both are intended to apply to the present and the future, and to include all who may come within their scope. Does Mr. Stanton, by any fair construction, come within either? How can he be included in the general clause, when the Secretary of War is expressly excepted from its operation? The language is, "Every person holding any civil office, &c., shall be entitled to hold such office," except as herein otherwise provided." Then follows the proviso, in which the Secretary of War is specifically designated, and by which another and a different tenure is provided for the Secretary of War. Surely, it would be violating every rule of construction to hold that either an office or an individual expressly excluded from the operation of a law can be subject to its provisions.

Again, does Mr. Stanton come within the proviso? What is the term therein fixed and established for the Secretary of War? Specifically, the term of the President by whom he was appointed, and one month thereafter. He was appointed by President Lincoln, and the term of President Lincoln existing at the time of his appointment expired on the 4th of March, 1865. Can any one doubt that had a law been in existence on that day similar to that of March 2, 1867, Mr. Stanton would have gone out of office in one month thereafter? The two terms of Mr. Lincoln were as distinct as if held by different persons. Had he been then reappointed by Mr. Lincoln, and confirmed, and a law similar to that of March 2, 1867, been then in existence, is it not equally clear that he would have again gone out of office in one month after the expiration of Mr. Lincoln's second term? If so, the only question would have been whether Mr. Lincoln's term expired with him, or continued, notwithstanding his death, until the 4th day of March, 1869, although he could no longer hold and execute the office, and although his successor, elected and qualified according to all the forms

of the Constitution, was, in fact and in law, President of the United States. How could all that be, and yet that successor be held to have no term at all? To my apprehension such a construction of the law is more and worse than untenable.

The word "term," as used in the proviso, when considered in connection with the obvious design to allow to each person holding the presidential office the choice of his own confidential advisers, must, I think, refer to the period of actual service. Any other construction might lead to strange conclusions. For instance, suppose a President and Vice Pres ident should both die within the first year of the term for which they were elected. As the law now stands, a new election must be held within thirty-four days preceding the first Wednesday of December then next ensuing. A new term of four years would commence with the inauguration of the new President before the term for which the preceding President was elected had expired. Do the heads of Departments appointed by that preceding President hold their offices for three years of the term of the new President and until one month after the expiration of the term for which such preceding President was elected? Such would be the consequence of giving to the word "term" any other meaning than the term of actual service. It must be evident, therefore, that the word "term" of the President, as used in the proviso, is inseparable from the individual, and dies with him.

If I am right in this conclusion, Mr. Stanton, as Secretary of War, comes neither within the body of the section nor within the proviso, unless he can be considered as having been appointed by Mr. Johnson.

Words used in a statute must, by all rules of construction, be taken and understood in their ordinary meaning, unless a contrary intention clearly appears. As used in the Constitution, appointment implies a designationan act. And with regard to certain officers, including the Secretary of War, it implies a nomination to the Senate and a confirmation by that body. A Secretary of War can be appointed in no other manner. This is the legal meaning of the word appointed. Is there any evidence in the act itself that the word appointed, as used in the proviso, was intended to have any other meaning? The same word occurs three times in the body of the section, and in each case of its use evidently has its ordinary constitutional and legal signification. There is nothing whatever to show that it had, or was intended to have, any other sense when used in the proviso. If so, then it cannot be contended that Mr. Stanton was ever appointed Secretary of War by Mr. Johnson, and he cannot, therefore, be considered as included in the proviso. The result is, that he is excluded from the general provision because expressly excepted from its operation, and from the proviso by not coming within the terms of description.

It not unfrequently happens, as every lawyer is aware, that a statute fails to accomplish all the purposes of those who penned it, from an inaccurate use of language, or an imperfect description. This may be the case here. But when it is considered that this proviso was drawn and adopted by eminent lawyers accustomed to legal phraseology, who perfectly well knew and understood the position in which certain members of Mr. Johnson's Cabinet stood, not appointed by him, but only suffered to remain in office under their original commissions from President Lincoln; and when it is further considered that the object of that proviso was to secure to each President the right of selecting his own Cabinet officers, it is difficult to suppose the intention not to have been to leave those officers who had been appointed by President Lincoln to hold under their original commissions, and to be removable at pleasure. Had they intended otherwise it was easy so to provide. That they did not do so is in accordance with the explanation given when the proviso was reported to the Senate, and

which was received with unanimous acqui

escence.

It has been argued that Mr. Johnson has recognized Mr. Stanton as coming within the first section of the act of March 2, 1867, by suspending him under the provisions of the second section. Even if the President did so believe, it by no means follows that he is guilty of a misdemeanor in attempting to remove him, if that view was erroneous. The President is not impeached for acting contrary to his belief, but for violating the Constitution and the law. And it may be replied that, if the President did entertain that opinion, testimony was offered to show that his Cabinet entertained a different view. Whatever respect the opinion of either may be entitled to, it does not settle the question of construction. But a sufficient answer to the argument is that, whether Mr. Stanton comes within the first section of the statute or not, the President had a clear right to suspend him under the second section. That section applies to all civil officers, except judges of the United States courts, "appointed as aforesaid; that is, "by and with the advice and consent of the Senate;" and Mr. Stanton was such an officer, whatever might have been his tenure of office. The same remark applies to the eighth section, in relation to the designation of General Thomas. That section covers every "person" designated to perform the duties of any office, without the advice and consent of the Senate. Both of these sections are general in their terms and cover all persons coming within their purview, whether included in the first section or not.

I conclude, then, as Mr. Stanton was appointed to hold "during the pleasure of the President for the time being," and his tenure was not affected by the act of March 2, 1867, the President had a right to remove him from office on the 21st of February, 1868, and, consequently, cannot be held guilty under the first

article.

Even, however, if I were not satisfied of the construction given herein of the act of March 2, 1867, I should still hesitate to convict the President of a high misdemeanor for what was done by him on the 21st of February. The least that could be said of the application of the first section of that act to the case of Mr. Stanton is that its application is doubtful. If, in fact, Mr. Stanton comes within it, the act done by the President did not remove him, and he is still Secretary of War. It was, at most, an attempt on the part of the President, which he might well believe he had a right to make. The evidence utterly fails to show any design on the part of the President to effect his purpose by force or violence. It was but the simple issuance of a written order, which failed of its intended effect. To depose the constitutional chief magistrate of a great nation, elected by the people, on grounds so slight, would, in my judgment, be an abuse of the power conferred upon the Senate, which could not be justified to the country or the world. To construe such an act as a high misdemeanor, within the meaning of the Constitution, would, when the passions of the hour have had time to cool, be looked upon with wonder, if not with derision. Worse than this, it would inflict a wound upon the very structure of our Government, which time would fail to cure, and which might eventually destroy it.

It may be further remarked that the President is not charged in the first article with any offense punishable, or even prohibited, by stat

ute.

The removal of an officer contrary to the provisions of the act of March 2, 1867, is punishable, under the sixth section, as a high misdemeanor. The attempt so to remove is not declared to be an offense. The charge is, that the President issued the order of Febru ary 21, 1868, with intent to violate the act, by removing Mr. Stanton. If, therefore, this attempt is adjudged to be a high misdemeanor, it must be so adjudged, not because the Presi dent has violated any law or constitutions! provision, but because, in the judgment of the Senate, the attempt to violate the law is in

thing but the most temporary character to the
appointment. To hold that an act of such a
character, prohibited by no law, having the
sanction of long practice necessary for the
transaction of business, and which the Presi-proved by the evidence.
dent might well be justified in believing au-
thorized by existing law, was a high misde-
meanor justifying the removal of the President
of the United States from office, would, in my
judgment, be, in itself, a moustrous perversion
of justice, if not of itself a violation of the Con-
stitution.

Article eight is disposed of by what has been said on the preceding articles.

Article nine is, in my judgment, not only without proof to support it, but actually dis

The first two articles failing, the third, fourth, fifth, sixth, seventh, and eighth must fail with them.

The third differs from the secoud only in the allegation that the President appointed Lorenzo Thomas Secretary ad interim without the assent of the Senate, that body being then in session and there being no vacancy in said office. The answer to this allegation is, first, it was not an appointment requiring the assent of the Senate, but a simple authority to act temporarily and second, there was a legal vacancy in the office existing at the time.

:

Of artiele four it is sufficient to say that there is no evidence to sustain it. There is nothing bearing upon it except the idle vaporing of Thomas himself of what he intended to do; and he testifies under oath that the Presi⚫ dent never authorized or suggested the use of force. What was said by Thomas was said out of doors, not to Mr. Stanton, nor communicated to him by message. The interviews between General Thomas and Mr. Stanton were of the most pacific character. The reply of Mr. Stanton when the letter of the Presi dent was delivered to him was of a nature to repel the idea of resistance, and the testimony of General Sherman shows that the President did not anticipate resistance.

It is essential to the support of this fourth article, and also of article sixth, that intimidation and threats should have been contemplated by the parties charged with the conspiracy, under the act of July 31, 1861. These failing, the charge fails with them in both articles.

As to the fifth and seventh articles, the attempt is made to sustain them under a law of Congress, passed February 27, 1804, extending the criminal laws of Maryland over so much of the District as was part of that State. Inasmuch as the common law was, so far as it had not been changed by statute, the law of Maryland, and conspiracy a misdemeanor, the President is charged with a misdemeanor by conspiring with Thomas to do an act made unlawful by the act of March 2, 1867. This is the only interpretation which I am able, with the aid of the arguments of the Managers, to place upon these articles. Granting the positions assumed as the foundation for the charges in these articles, they must fail if the act which the President proposed to do was a lawful act, and he did not propose to accom plish it by unlawful means. The removal of Mr. Stanton is the means proposed in order to prevent him from holding his office, as charged in the fifth, and to take and possess the property of the United States in his custody, as charged in the seventh article. The right to remove him, therefore, disposes of both articles.

Outside of any of these considerations, I have been unable to look upon either of these four articles as justifying a charge of conspiracy. The legal idea of a conspiracy is totally inapplicable to the facts proved. The President, if you please, intends to remove a person from office by an open exercise of power, against the provisions of a law, contending that he has a right so to do, notwithstanding the law, and temporarily to supply the vacancy thus created. He issues an order to that effect, and at the same time orders another person to take charge of the office, who agrees to do so. How these acts, done under a claim of right, can be tortured into a conspiracy, in the ab sence of any specific provision of law declaring them to be such, is beyond my compre hension:

With regard to the tenth article, the specifications are sufficiently established by proof. They are three in number, and are extracts from speeches of the President on different occasions. It is not pretended that in speaking any of the words the President violated the Constitution, or any provision of the statute or common law, either in letter or spirit. If such utterance was a misdemeanor, it must be found in the nature of the words themselves.

I am not prepared to say that the President might not, within the meaning of the Constitution, be guilty of a misdemeanor in the use of words. Being sworn to preserve, protect, and defend the Constitution," if he should in words persistently deny its authority and endeavor by derisive and contemptuous language to bring it into contempt and impair the respect and regard of the people for their form of gov. ernment, he might, perhaps, justly be considered as guilty of a high misdemeanor in office. Other cases might be supposed of a like character and leading to similar results. It remains to inquire what was the character of the words proved.

Those spoken on the 18th day of August, 1866, contained nothing calcrlated to impair the confidence of the country in our form of government or in our cherished institutions. They did not contain severe reflections upon the conduct of a coördinate branch of the Government. They were not an attack upon Congress as a branch of the Government, but upon the conduct of the individuals composing the Thirty-Ninth Congress. He did not speak of Congress generally as "hanging upon the verge of the Government, as it were," but of a par ticular Congress, of which he spoke as assuming to be "a Congress of the United States, while in fact it is a Congress of only a part of the States," and which particular Congress he ac cused of encroaching upon constitutional rights and violating the fundamental principles of

government.

It may be remarked that those words were not official. They were spoken in reply to an address made to him by a committee of his fellow citizens-spoken of the Congress and not to it. The words did not in terms deny that it was a constitutional Congress or assert that it had no power to pass laws. He asserted what was true in point of fact, that it was a Congress of only a part of the States. Granting that the words spoken would seem to imply that he had doubts, to some extent, of the true character of that Congress and the extent of its powers, so long as several States were excluded from representation, he did not, in fact or in substance, deny its constitutional existence; while in all his official communications with that Congress he has ever treated it as a constitutional body. Is there another man in the Republic, in office or out of office, who had not on that day a perfect right to say what the President said? Would any one think of punishing any member of Congress for saying out of doors precisely the same things of the body of which he was a member? Is the President alone excluded from the privilege of expressing his opinions of the constitution of a particular Congress and of denouncing its acts as encroachments upon constitutional rights" and the "fundamental principles of government?" In process of time there might possibly be a Congress which would be justly liable to the same eriminations of a President. In such a case is he to remain silent, and is he forbidden by the Constitution, on pain of removal from office, to warn the people of the United States of their danger?

It is not alleged that the President did not believe what he said on this occasion to be true. Whether he did or not is a question between him and his conscience. If he did, he had a perfect moral right so to speak. If he did not, his offense is against good morals,

and not against any human law. There is, in my judgment, nothing in these words to prove the allegation that the President's intent in speaking them was to impair and destroy the respect of the people for the legislative power of Congress, or the laws by it duly and constitutionally enacted, or to set aside its rightful authority and powers. If the words were designed to bring that particular Congress into contempt, and to excite the resentment of the people against it, however much I may disapprove both words and intention, I do not think them an impeachable offense.

The remarks contained in the second and third specifications present themselves to my mind in the same light. They, too, contain severe reflections upon the Thirty-Ninth Congress; nothing more. I have not been able to discover any menaces or threats against Congress, unless they are found in the declaration that he would veto their measures; and this, I think, must in fairness be taken as applying to measures of a certain character, of which be had been speaking. The speeches at Cleve land and St. Louis, though highly objectionable in style, and unbecoming a President of the United States, afford nothing to justify the allegation that they were menacing toward Congress or to the laws of the country. To consider their utterance a high misdemeanor, within the meaning of the Constitution, would, in my view, be entirely without justification.

So highly did the people of this country estimate the importance of liberty of speech to a free people, that, not finding it to be specifie ally guarantied in the Constitution, they provided for it in the first amendment to that instrument. "Congress shall make no law abridging the freedom of speech." Undoubtedly there are great inconveniences, and per haps positive evils, arising from the too frequent abuse of that freedom; more, perhaps, and greater from an equally protected freedom of the press. But the people of the United States consider both as essential to the preservation of their rights and liberties. They, therefore, have chosen to leave both entirely unrestrained, subjecting the abuse of that liberty only to remedies provided by law for individual wrongs. To deny the President a right to comment freely upon the conduct of coördinate branches of the Government would not only be denying him a right secured to every other citizen of the Republic, but might deprive the people of the benefit of his opinion of public affairs, and of his watchfulness of their interests and welfare. That under circumstances where he was called upon by a large body of his fellow-citizens to address them, and when he was goaded by contumely and insult, he permitted himself to transcend the limits of proper and dignified speech, such as was becoming the dignity of his station, is matter of deep regret and highly censurable. But, in my opinion, it can receive no other punishment than public sentiment alone can inflict.

If I rightly understand the accusation contained in the eleventh article it is substantially this:

"That, on the 18th day of August, 1866, the President, by public speech, declared, in substance, that the Thirty-Ninth Congress was not a Congress of the United States, authorized to exercise legislative power, thereby intending to deny that the legisiation of said Congress was valid or obligatory on him. except so far as he saw fit to approve the same, and thereby denying, and intending to deny, the power of said Thirty-Ninth Congress to propose amendments to the Constitution."

And “in pursuance of said declaration" the President, on the 21st day of February, 1868, attempted to prevent the execution of the set of March 2, 1867:

First. By unlawfully attempting to devise means to prevent Mr. Stanton from resuming the functions of Secretary of War, after the Senate had refused to concur in his suspension.

Second. By unlawfully attempting to devise means to prevent the execution of the appropriation act for the support of the Army for the fiscal year ending June 30, 1868.

And that further, in pursuance of said decla ration, he unlawfully attempted to prevent the