we attend to the scope and meaning of the accusation be fore it.

The first eight articles set out in several distinct forms the acts of the respondent in removing Mr. Stanton from office, and appointing Mr. Thomas, ad interim, differing in legal effect in the purposes for which and the intent with which either or both of the acts were done, and the legal duties and rights infringed, and the acts of Congress violated in so doing

All the articles allege these acts to be in contravention of his oath of office, and in disregard of the duties thereof.

If they are so, however, the President might have the power to do them under the law; still, being so done, they are acts of official misconduct, and, as we have seen, impeachable.

The President has the legal power to do many acts which, if done, in disregard of his duty, or for improper purposes, then the exercise of that power is an official mis demeanor.

Ex. gr: he has the power of pardon; if exercised in a given case for a corrupt motive, as for the payment of money, or wantonly pardoning all criminals, it would be a misdemeanor. Examples might be multiplied indefinitely.

Article first, stripped of legal verbiage, alleges that, hav ing suspended Mr. Stanton and reported the same to the Senate, which refused to concur in the suspension, and Stanton having rightfully resumed the duties of his office, the respondent, with knowledge of the facts, issued an order, which is recited, for Stanton's removal, with intent to violate the act of March 2, 1867, to regulate the tenure of certain civil offices, and with the further intent to remove Stanton from the office of Secretary of War, then in the lawful discharge of its duties, in contravention of said act without the advice and consent of the Senate, and against the Constitution of the United States.

Article 2 charges that the President, without authority of law, on the 21st of February, 1868, issued letter of authority to Lorenzo Thomas to act as Secretary of War ad interim, the Senate being in session, in violation of the Tenure of Office act, and with intent to violate it and the Constitution, there being no vacancy in the office of Secretary of War.

Article 3 alleges the same act as done without authority of law, and alleges an intent to violate the Constitution. Article 4 charges that the President conspired with Lorenzo Thomas and divers other persons, with intent, by intimidation and threats, to prevent Mr. Stanton from holding the office of Secretary of War, in violation of the Constitution and of the act of July 31, 1861.

Article 5 charges the same conspiracy with Thomas to prevent Mr. Stanton's holding his office, and thereby to prevent the execution of the civil tenure act.

Article 6 charges that the President conspired with Thomas to seize and possess the property under the control of the War Department by force, in contravention of the act of July 31, 1861, and with intent to disregard the civil tenure of office act.

Article 7 charges the same conspiracy, with intent only to violate the civil tenure of office act.

Articles 3d. 4th, 5th, 6th, and 7th may be considered together, as to the proof to support them.

It will be shown that having removed Stanton and appointed Thomas, the President sent Thomas to the War Office to obtain possession: that having been met by Stanton with a denial of his rights, Thomas retired, and after consultation with the President, Thomas asserted his purpose to take possession of the War Office by force, making his boast in several public places of his intentions so to do, but was prevented by being promptly arrested by process from the court.

This will be shown by the evidence of Hon. Mr. Van Horn, a member of the House, who was present when the demand for possession of the War Office was made by General Thomas, already made public.

By the testimony of the Hon. Mr. Burleigh, who, after that, in the evening of the twenty-first of February, was told by Thomas that he intended to take possession of the War Office by force the following morning, and invited him up to see the performance. Mr. Burleigh attended, but the act did not come off, for Thomas had been arrested and held to bail.

By Thomas boasting at Willards' Hotel on the same evening that he should call on General Grant for military force to put him in possession of the office, and he did not see how Grant could refuse it.

Article 8 charges that the appointment of Thomas was made for the purpose of getting control of the disbursement of the moneys appropriated for the military service and Department of War.

In addition to the proof already adduced, it will be shown that after the appointment of Thomas, which must have been known to the members of his Cabinet, the President caused a formal notice to be served on the Secretary of the Treasury, to the end that the Secretary might answer the requisitions for money of Thomas, and this was only prevented by the firmness with which Stanton retained possession of the books and papers of the War Office.

It will be seen that every fact charged in Article 1 is admitted by the answer of the respondent; the intent is aleo admitted as charged; that is to say, to set aside the civil tenure of office act, and to remove Mr. Stanton from the office for the Secretary of the Department of War without the advice and consent of the Senate, and, if not Justified, contrary to the provisions of the Constitution itself.

The only question remaining is, does the respondentJustify himself by the Constitution and laws?

On this he avers, that by the Constitution, there is "conferred on the President, as a part of the executive power, the power at any and all times of removing from office all executive officers for caure, to be judged of by the Presi dent alone, and that he verily believes that the executive power of removal from office, confided to him by the Constitution, as aforesaid, includes the power of suspension from office indefinitely."

Now, these offices, so vacated, must be filled, tempora rily at least, by his appointment, because government must go on; there can be no interregnum in the execution of the laws in an organized government; he claims, there fore, of necessity, the right to fill their places with appointments of his choice, and that this power cannot be restrained or limited in any degree by any law of Congress, because, he avers, "that the power was conferred, and the duty of exercising it in fit cases was imposed on the President by the Constitution of the United States, and that the President could not be deprived of this power, or relieved of this duty, nor could the same be vested by law in the President and the Senate jointly, either in part or whole."

This, then, is the plain and inevitable issue before the Senate and the American people:

Has the President, under the Constitution, the more than kingly prerogative at will to remove from office and sus pend from office indefinitely, all executive officers of the United States, either civil, military or naval, at any and all times, and fill the vacancies with creatures of his own appointment, for his own purposes, without any restraint whatever, or possibility of restraint by the Senate or by Congress through laws duly enacted?

The House of Representatives, in behalf of the people, join this issue by affirming that the exercise of such powers is a high misdemeanor in office.

If the affirmation is maintained by the respondent, then, so far as the first eight articles are concerned-- unless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime-the respondent must go and ought to go quit and free.

Therefore, by these articles and the answers thereto, the momentous question, here and now, is raised whether the Presidential office itself (if it has the prerogatives and power claimed for it) ought, in fact, to exist as a part of the constitutional government of a free people, while by the last three articles the simpler and less important inquiry is to be determined, whether Andrew Johnson has so conducted himself that he ought longer to hold any constitutional office whatever. The latter sinks to merited insignificance compared with the grandeur of the former. If that is sustained, then a right and power hitherto unclaimed and unknown to the people of the country is en grafted on the Constitution, most alarming in its extent, most corrupting in its influence, most dangerous in its tendencies. and most tyrannical in its exercise.

Whoever, therefore, votes "not guilty" on these articles, votes to enchain our free institutions, and to prostrate them at the feet of any man who, being President, may choose to control them.

For this most stupendous and unlimited prerogative the respondent cites no line and adduces no word of consti tutional enactment-indeed he could not, for the only mention of removal from office in the Constitution is ass part of the judgment in case of impeachment, and the only power of appointment is by nomination to the Senate of officers to be appointed by their advice and consent, save a qualified and limited power of appointment by the President when the Senate is not in session. Whence then does the respondent by his answer claim to have derived this power? I give him the benefit of his own words, "that it was practically settled by the first Congress of the United States." Again, I give him the benefit of his own phrases as set forth in his message to the Senate of 2d of March, 1867, made a part of his answer:-"The question was decided by the House of Representatives by a vote of 34 to 20, (in this, however, he is mistaken,) and in the Senate by the casting vote of the Vice President," In the same answer he admits that before he undertook the exer cise of this most dangerous and stupendous power, after seventy-five years of study and examination of the Constitution by the people living under it, another Congress has decided that there was no such unlimited power. So that he admits that this tremendous power which he claims from the legislative construction of one Congress by a vote of 34 to 20 in the House, and a tie vote in the Senate, has been denied by another House of more than three times the number of members by a vote of 133 to 37; and by a Senate of more than double the number of Senators by a vote of 38 to 10. and this, too, after he had presented to them all the arguments in its favor that he could find to sustain his claim of power.

If he derives this power from the practical settlement of one Congress of a legislative construction of the constitu tional provisions, why may not such construction be as practically settled more authoritatively by the greater unanimity of another Congress-yea, as we shall see, of many other Congresses?

I

The great question, however, still returns upon uswhence comes this power?-how derived or conferred? it unlimited and unrestrained? illimitable and unrestrainable, as the President claims it to be!

In presenting this topic it will be my duty, and I shall attempt to do nothing more, than to state the propositions of law and the authorities to support them so far as they may come to my knowledge, leaving the argument and ilInstrations of the question to be extended in the close by abler and better hands,

If a power of removal in the Executive is found at all in the Constitution, it is admitted to be an implied one, either

from the power of appointment, or because "the executive power is vested in the President."

Has the executive power granted by the Constitution by these words any limitations? Does the Constitution invest the President with all executive power, prerogatives, privileges and immunities enjoyed by executive officers of other countries-kings and emperors-without limitation? If so, then the Constitution has been much more liberal in granting powers to the Executive than to the legislative branch of the government, as that has only "all legislative powers herein granted (which) shall be vested in the Congress of the United States:" not all uncontrollable legisla tive powers, as there are many limitations upon that power as exercised by the Parliament of England for example. So there are many executive powers expressly limited in the Constitution, such as declaring war, making rules and regulations for the government of the army and navy, and coining money.

As some executive powers are limited by the Constitufion itself, is it not clear that the words "the executive power is vested in the President," do not confer on him all executive powers, but must be construed with refer ence to other constitutional provisions granting or regu lating specific powers? The executive power of appointment is clearly limited by the words "he shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors, * and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law."

Is it not, therefore, more in accordance with the theory of the Constitution to imply the power of removal from the power of appointment, restrained by like limitations, than to imply it solely as a prerogative of executive power and therefore illimitable and uncontrollable? Have the people anywhere else in the Constitution granted illimit able and uncontrollable powers either to the executive or any other branch of the government? Is not the whole power of government one of checks, balances, and limitations? Is it to be believed that our fathers, just escaping from the oppressions of monarchical power, and so dread. ing it that they feared the very name of king, gave this more than kingly power to the Executive, illimitable and uncontrollable, and that too by implication merely?

Upon this point our proposition is, that the Senate being in session, and an office, not an inferior one, within the terms of the Constitution being filled, the President has the implied power of inaugurating the removal only by nomination of a successor to the Senate, which, when Consented to, works the full removal and supersedeas of the incumbent. Such has been, it is believed, the practice of the government from the beginning, down to the act about which we are inquiring. Certain it is that Mr. Webster, in the Senate, in 1835, so asserted without contradiction, using the following language:

"If one man be Secretary of State, and another be appointed, the first goes out by the mere force of the appointment of the other, without any previous act of removal whatever. And this is the practice of the government, and has been from the first. In all the removals which have been made they have generally been effected simply by making other appointments. I cannot find a case to the contrary. There is no such thing as any distinct official act of removal. I have looked into the practice, and caused inquiries to be made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office, and the President would only act in such cases by causing some proper record or entry to be made as proof of the fact of removal. 1 am aware that there have been some cases in which notice has been sent to persons in office that their services are or will be, after a given day, dispensed with. These are usually cases in which the object is, not to inform the incumbent that he is removed, but to tell him that a successor either is, or by a day named will be, appointed. If there be any instances in which such notice is given, without express reference to the appointment of a successor, they are few; and even in these such reference must be implied, because in no case is there any distinct official act of removal, as I can find, unconnected with the act of appointment."

This would seem to reconcile all the provisions of the Constitution, the right of removal being in the President to be executed sub modo, as is the power of appointment, the appointment, when consummated, making the remo

This power was elaborately debated in the first Congress upon the bills establishing a Department of Foreign Affairs and the War Department. The debate arose on the motion, in Committee of the Whole, to strike out, after the title of the officer, the words, "to be removable from office by the President of the United States." It was four days dis cussed in Committee of the Whole in the House, and the clause retained by a vote of 20 yeas to 34 nays, which peemed to establish the power of removal as either by a legislative grant or construction of the Constitution. But the triumph of its friends was short-lived, for when the bill came up in the House, Mr. Benson moved to amend it by altering the second section of the bill, so as to imply only the power of removal to be in the President, by inserting, that "whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, the chief clerk shall, during uch vacancy, have charge and custody of all records, books, and papers appertaining to the department."

Mr. Benson "declared he would move to strike out the words in the first clause, to be removable by the President, which appeared somewhat like a grant. Now the mode he took would evade that point and establish a legis.

lative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of the gen tlemen."

After debate the amendment was carried, 30 to 18. Mr. Benson then moved to strike out the words "to be re movable by the President of the United States," which was carried, 31 to 19; and so the bill was engrossed and sent to the Senate.

The debates of that body being in secret session, we have no record of the discussion which arose on the motion of Mr. Benson establishing the implied power of removal; but after very elaborate consideration, on several succes sive days, the words implying this power in the President were retained by the casting vote of the elder Adams, the Vice President. So, if this claimed "legislative settle ment" was only established by the vote of the second exe cutive officer of the government. Alas! most of our woes in this government have come from Vice Presidents. When the bill establishing the War Department came up, the same words, "to be removable by the President" were struck out, on the motion of one of the opponents of the ro cognition of the power, by a vote of 24 to 22, a like amend ment to that of the second section of the act establishing the Department of State being inserted. When, six years afterwards, the Department of the Navy was established, no such recognition of the power of the President to remove was inserted: and as the measure passed by a strict party vote, 47 yeas to 41 nays, it may well be conceived that its advocates did not care to load it with this constitu tional question, when the executive power was about passing into other hands, for one cannot read the debates upon this question without being impressed with the belief that reverence for the character of Washington largely determined the argument in the first Congress. Neither party did or could have looked forward to such an executive ad ministration as we have this day.

It has generally been conceded in subsequent discussions that here was a legislative determination of this question; but I humbly submit that, taking the whole action of Congress together, it is very far from being determined. I should hardly have dared. in view of the eminent names of Holmes, Clay, Webster and Calhoun, that have heretofore made the admission, to have ventured the assertion, were it not that in every case they, as does the President and his counsel, rely on the first vote in the Committee of the Whole, sustaining the words "to be removable by the Pre sident," and in no instance take any notice of the subae quent proceedings in the House by which these words were taken out of the bill. This may have happened be cause "Eliot's Debates," which is the authority most fre quently cited in these discussions, stops with the vote in Committee, and takes no notice of the further discussion. But whatever may be the effect of this legislative construction, the cotemporaneous and subsequent practico of the government shows that the President made no re movals except by nominations to the Senate when in ses sion, and superseding officers by a new commission to the confirmed nominee. Mr. Adams, in that remarkable letter to Mr. Pickering, in which he desires his resignation, re quests him to send it early, in order that he may nominate to the Senate, then about to sit; and he, in fact, removes Mr. Pickering by a nomination. Certainly no such unlimited power has ever been claimed by any of the earlier Presidents, as has now been set up for the President by his most remarkable, aye, criminal answer.

It will not have escaped attention that no determination was made by that legislative construction as to how the removal, if in the President's power, should be made, which is now the question in dispute. That has been determined by the universal practice of the government, with exceptions, if any, so rare as not to be worthy of consideration; so that we now claim the law to be what the practice has ever been. If, however, we concede the power of removal to be in the President as an implied power, yet we believe it cannot be successfully contended upon any authorities or constant practice of the government that the execution of that power may not be regu lated by the Congress of the United States, under the clause in the Constitution which "vests in Congress the power to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the Government of the United States, or in any department or office thereof."

The power of regulation of the tenure of office, and the manner of removal, has always been exercised by Con gress, unquestioned, until now.

On the 15th of May, 1820 (Vol. 3 Stat. at Large, p. 582), Congress provided for the term of office of certain officers therein named to be four years. but made them re movable at pleasure. By the second rection of the same act Congress removed from office all the officers therein commissioned, in providing a date when each commission should expire, thus asserting a legislative power of re moval from office; sometimes by passing acts which ap Dear to concede the power to the President to remove at pleasure, sometimes restricting that power in their aots by the most stringent provisions. Sometimes conferring the power of removal, and sometimes that of appointment -the acts establishing the territorial officers being most conspicuous in this regard.

Upon the whole, no claim of exclusive right over re movals or appointments seems to have been made either by the Executive or by Congress. No bill was ever vetoed on this account until now.

In 1818, Mr. Wirt, then Attorney-General, giving the earliest official opinion on this question coming from that office, said that only where Congress had not under taken to restrict the tenure of office, by the act creating it,