Lincoln removed James S. Chambers from the office of navy agent at Philadelphia, and placed Paymaster Watson in charge. These two offices were highly important, both in view of the duties to be discharged and the emoluments received by the incumbents.

On the 19th December, 1840, Thomas Eastin, the navy agent at Pensacola, was, by order of President Van Buren, "dismissed from the service of the United States," and Purser Dudley Walker appointed to take charge of the office. The Senate was then in session.

These are but a few of the hundreds of cases that might be cited to show that the practice of making ad interim appointments has been uniform, whether authorized by statute or not.

I cannot concur in the opinion that has been expressed, that if a technical violation of law has been established, the Senate has no discretion, but must convict. I think the Senate may judge whether in the case a high crime or misdemeanor has been established, and whether in the name of the people the prosecution ought to be made and sustained. Van Buren was not impeached for the removal of the Pensacola navy agent and the designation of Purser Walker to take charge of the office. President Jackson was not impeached for the ad interim appointment of Boyle as Secretary of the Navy under a claim of constitutional authority, without any statute allowing it. Presidents Harrison and Fillmore were not impeached for making ad interim appointinents of Secretary of the Navy, with no statute authorizing it. President Buchanan was not impeached for removing the postmaster at New Orleans and filling the place ad interim, nor for removing Fowler, the postmaster at New York, during the session of the Senate, and supplying the service ad interim, with no statutory authority; nor was he impeached for authorizing Joseph Holt to discharge the duties of Secretary of War ad interim upon the resignation of John B. Floyd, though the Senate called upon him for his authority, and in his reply he cited one hundred and seventy-nine precedents, not going back of Jackson's administration. Mr. Lincoln was not impeached for the appointment of General Skinner Postmaster General ad interim without any statute authorizing it, nor for the removal of Isaac Henderson, navy agent at New York, during the session of the Senate, and the ad interim appointment of Paymaster Gibson to the office; nor for the removal of Chambers, the navy agent at Philadelphia, during the session of the Senate, and the appointment of Paymaster Watson ad interim to the office, there then being no statute authorizing it. He was not impeached for continuing Major General Frank P. Blair in command long after the Senate had declared by resolution that in such case the office could not be held “without a new appointment in the manner prescribed by the Constitution;" nor for appointing at one time many more generals in the army than the laws allowed. Supported by a long line of precedents, coming through our whole history, unchallenged and unrebuked by Congress, President Johnson stands before us upon these charges; and I ask my brother senators what answer we will make to the people when they ask us why we selected him for a sacrifice for doing just what was always recognized as right in his predecessors? Upon my oath I cannot strike such a blow.

The judgment of the first Congress was, that the President has the right under the Constitution to remove the Secretaries, and that judgment is supported by the uniform practice of the government from that day till the meeting of the 39th Congress. The evidence shows that Mr. Johnson was advised by every member of his cabinent, including Mr. Stanton, that he had that right under the Constitution, and that Congress could not take it from him, nor impair it, and therefore it was his duty to veto the tenure-of-office bill; and that the bill did not include the appointments made by Mr. Lincoln; and that notwithstanding passage of the bill he would have the right to remove the Secretaries of War, of State, and of the Navy. This advice was given by the members of

the

the cabinet under the obligations of the Constitution and of their oaths; and now, if we say that he, being so informed and advised, was guilty of a crime in demanding the right to select his own constitutional advisers, as it has been conceded to all the Presidents, and for that drive him from his office and give it to a member of this body, it does seem to me that we will do an act of such flagrant injustice and cruelty as to bring upon our heads the indignant condemnation of all just men, and this impeachment will itself stand impeached before the civilized world.

OPINION OF MR. SENATOR YATES.

It is difficult to estimate the importance of this trial. Not in respect merely to the exalted position of the accused, not alone in the fact that it is a trial before the highest tribunal known among us, the American Senate, upon charges preferred by the immediate representatives of the sovereignty of the nation, against the President of the United States, alleging the commission by him of high crimes and misdemeanors; it is not alone in these respects that the trial rises in dignity and importance, but because it presents great and momentous issues, involving the powers, limitations and duties of the various departments of the government, affecting the very form and structure of the government, and the mightiest interests of the people, now and in the future.

It has been aptly termed the trial of the Constitution. Constructions of our Constitution and laws here given and precedents established by these proceedings will be quoted as standard authorities in all similar trials hereafter. We have here at issue, before this highest judicial tribunal, in the presence of the American people, and of the civilized world, whether our Constitution is to be a landmark to the citizen, a guide to the statesman, and authoritative over the magistrate, or whether this is a land of anarchy, crime and lawless usurpation. It is a trial which challenges the broadest comprehension of the statesman, the highest intellect and clearest discrimination of the jurist, and the deepest solici tude of the patriot. Its issues are to be determined by clearly ascertaining the duties and powers of the co-ordinate branches of the government, all jealous of encroachments upon their functions, and all in danger if one shall usurp powers which by virtue of the Constitution and laws belongs to others.

Although it seems to me that no man of honest judgment and true heart can have a possible doubt as to the guilt of the respondent in this cause, and although he has long since been indicted and found guilty in the judgment and conscience of the American people of a giant apostacy to his party-the party of American nationality and progress-and of a long series of atrocious wrongs and most daring and flagrant usurpations of power, and for three years has thrown himself across the path of the country to peace and a restored Union, and in all his official acts has stood forth without disguise, a bold, bad man, the aider and abettor of treason, and an enemy of his country; though this is the unanimous verdict of the loyal popular heart of the country, yet I shall strive to confine myself, in the main, to a consideration of the issues presented in the first three articles. Those issues are simply: whether in the removal of Edwin M. Stanton, Secretary of War, and the appointment of Lorenzo Thomas Secretary of War ad interim, on the 21st day of February, 1868, the President wilfully violated the Constitution of the United States, and the law entitled "An act regu lating the tenure of certain civil offices," in force March 2, 1867.

Upon the subject of appointments to civil office the Constitution is very explicit. The proposition may be definitely stated that the President cannot, during the session of the Senate, appoint any person to office without the advice and consent of the Senate, except inferior officers, the appointment of whom

may, by law, be vested in the President. The following is the plain letter and provision of the Constitution defining the President's power of appointment to office:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, 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; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.

Is it not plain, very plain, from the first clause above set forth, that the appointment of a superior officer, such as a Secretary of War, or the head of any department cannot be made during the session of the Senate without its advice and consent? It is too clear for argument that the Constitution does not confer the prerogative of appointment of any officer upon the President alone during sessions of the Senate, and that he can only appoint inferior officers even, by virtue of laws passed by Congress, so that the appointment of a head of a department cannot be made without the concurrence of the Senate, unless it can be shown that such appointment is, in the words of the Constitution, "otherwise provided for;" and it is not pretended that any such other provision can be shown.

The framers of the Constitution wisely imposed this check upon the President to secure integrity, ability, and efficiency in public officers, and to prevent the appointment of men who, if appointed by the President alone, might be his mere instruments to minister to the purposes of his ambition.

I maintain that Congress itself cannot pass a law authorizing the appointment of any officer, excepting inferior officers, without the advice and consent of the Senate, it being in session at the time of such appointment. It is just as competent for Congress, under the clause which I have read, to invest the President with the power to make a treaty without the concurrence of twothirds of the Senate, which is, as all agree, inadmissible. Any law authorizing the class of appointments just mentioned, without the Senate's concurrence, would be just as much a violation of the constitutional provision which I have read, as would a law providing that the President should not nominate the officer to the Senate at all. No appointment is complete without the two acts, nomination by the President, and confirmation by the Senate.

I think my colleague, (Mr. Trumbull,) had not well considered when he made the statement in his argument, that "the Constitution makes no distinction between the power of the President to remove during the recess and the sessions of the Senate."

The clause of the Constitution which I shall now quote shows very clearly that the power of the President to fill vacancies is limited to vacancies happening during the recess of the Senate :

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shail expire at the end of their next session. His power to fill vacancies during the recess, without the advice and consent of the Senate at the time, proceeds from the necessity of the case, because the public service would suffer unless the vacancy is filled; but even in this case the commission of the temporary incumbent is to expire at the end of the next session of the Senate, unless the Senate, during said next session, shall have consented to his appointment. The reason of this limitation upon the President to the filling of vacancies happening during the recess, and why he cannot appoint during the session of the Senate without consent, is clearly because. the Senate being in session may at the time of the nomination give its advice and consent. The provision that "the President shall have power to fill all vacancies during the recess of the Senate by granting commissions which shall

expire at the end of the next session," excludes the conclusion that he may create vacancies, and fill them during the session and without the concurrence of the Senate. If this view is not correct, it would seem that the whole provision of the Constitution on this point is meaningless and absurd.

The conclusion of the whole matter is, that if the President issued an order for the removal of Mr. Stanton and the appointment of Thomas, without the advice and consent of the Senate, it being then in session, then he acted in pal pable violation of the plain letter of the Constitution, and is chargeable with a high misdemeanor in office. The production of his own order removing Stanton, and of his letter of authority to Thomas, commanding him to take posses sion of the War Office, are all the proofs necessary to establish his guilt. And when it appears, as it does most conclusively in the evidence before us, that he not only did not have the concurrence of the Senate, but its absolute, unqualified dissent, and that he was notified of that dissent by a certified copy of a resolution to that effect, passed by the Senate, under all the forms of parliamentary deliberation, and that he still wilfully and defiantly persisted, and does stil! persist in the removal of Mr. Stanton, and to this day stubbornly retains Thomas as a member of his cabinet, then who shall say that he has not wickedly trampled the Constitution under his feet, and that he does not justly deserve the punishment due to his great offence?

That the facts stated are proved, and substantially admitted in the answer of the President to article first, will not be denied by the counsel for the respond ent, nor by his apologists on the floor of the Senate.

The next question to which I invite attention is whether the President has intentionally violated the law, and thereby committed a misdemeanor. Blackstone defines a misdemeanor thus:

A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it.

Misdemeanor in office, and misbehavior in office, or official misconduct, mean the same thing. Mr. Madison says in Elliott's Debates that:

The wanton removal of meritorious officers would subject him (the President) to impeachment and removal from his own high trust.

Chancellor Kent, than whom no man living or dead ever stood higher as an expounder of constitutional law, whose Commentaries are recognized in all courts as standard authority, and whose interpretations are themselves almost laws in our courts, says, in discussing the subject of impeachment :

The Constitution has rendered him [the President] directly amenable by law for maladministration. The inviolability of any officer of the government is incompatible with the republican theory as well as with the principles of retributive justice.

If the President will use the authority of his station to violate the Constitution or law of the land, the House of Representatives can arrest him in his career by resorting to the power of impeachment. (1 Kent's Com., 289.)

Story, of equal authority as a commentator on the Constitution, says:

In examining the parliamentary history of impeachments, it will be found that many offences not easily definable by law, and many of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy.

Judge Curtis, one of the distinguished counsel for the respondent in this case, said in 1862 :

The President is the commander-in-chief of the army and navy, not only by force of the Con stitution, but under and subject to the Constitution, and to every restriction therein contained. and to every law enacted by its authority, as completely and clearly as the private in the ranks. He is general-in-chief; but can a general-in-chief disobey any law of his own When he can he superadds to his rights as commander the powers of a usurper, and that is mil itary despotism; the mere authority to command an army is not an authority to

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disobey the laws of his country.

country

Besides, all the powers of the President are executive merely. He cannot make a law, He cannot repeal one. He can only execute the laws. He can neither make nor nor alter them. He cannot even make an article of war.

suspend

Section 3, article 1 of the Constitution says:

The Senate shall have the sole power to try all impeachments.

I was present on the 15th day of April, 1865, the day of the death of the lamented Lincoln, when you, Mr. President, administered to Andrew Johnson the oath of office as President of the United States. He then and there swore that he would " preserve, protect, and defend the Constitution of the United States," and "take care that the laws should be faithfully executed."

On the 28 day of March, 1867, Congress passed a law, over the veto of the President, entitled "An act to regulate the tenure of certain civil offices," the first section of which is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 may 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.

This law is in entire harmony with the Constitution. "Every person appointed. or to be appointed" to office with the advice and consent of the Senate, shall hold the office until a successor shall "in like manner," that is, "by the advice and consent of the Senate" be appointed and qualified. This is obviously in pursuance of the Constitution.

Now, if we construe this section independently of the proviso, we shall see that the removal of Mr. Stanton without the advice and consent of the Senate, and, before his successor was appointed with the advice and consent of the Senate, was a misdemeanor, and was so declared and made punishable by the 6th section of the same act. And, again, if Mr. Stanton's case is excepted from the body of the act, and comes within the proviso, then his removal without the concur rence of the Senate, was a violation of the law, because, by the terms of the proviso, he was only subject to removal by and with the advice and consent of the Senate.

But my colleague (Mr. Trumbull) contends that Mr. Stanton was not included in the body of the section, because there is a proviso to it which excepts him and other heads of departments from "every other civil officer," and yet he argues that he is not in the proviso itself, which certainly is strange logic. He argues that his tenure of office was given under the act of 1789, and that by that act the President had a right to remove him. If this be so, why did not the President remove him under that act, and not suspend him under the tenureof-office act, and why did my colleague act under the tenure-of-office law in restoring Mr. Stanton?

It is claimed that Mr. Stanton is not included within the civil-tenure-of-office act, because he was not appointed by Mr. Johnson, in whose term he was removed; that he was appointed by Mr. Lincoln, and that Mr. Stanton's term expired one month after his (Mr. Lincoln's) death, and that Johnson is not serving part of Mr. Lincoln's term.

The true construction of the whole section, including the proviso, is that every person appointed and to be appointed, with the advice and consent of the Senate, is to hold the office until his successor shall have been in like manner appointed and qualified, except the heads of departments, who are to hold their offices, not till their successors are appointed, but during the term of the President by whom they may have been appointed and for one month longer, and always" subject to removal by and with the advice and consent of the Senate." Now, the only object of the proviso was to confer upon the Secretary of War, and other heads of departments, a definite tenure of office, and a different term