Congress by statute give him a right to hold his office for a term of years against the President's will? If they can do this they can also hereafter, at their pleasure, assign him an additional term of years or give him a life estate in his office. In either case what have we but a new appointment to office by Congress? By the express words of the Constitution the principal officers of the government (including, I think, the heads of the executive departments) must be appointed by the President by and with the advice and consent of the Senate, and the appointment of inferior officers may be vested by law in the President alone, in the courts of law, or in the heads of departments. Each house of Congress may choose their own officers, but in no case whatever can Congress appoint an officer of the United States. Being clearly incapable of making an appointment, they cannot change one after it is made, giving it a character and duration which were not within the contemplation or intention of the appointing power when the office was conferred. I conclude, then, that if the tenure-of-office act be construed to place the cases of Mr. Stanton and of the other Lincoln Secretaries within a new tenureof-office rule, it is so far forth unconstitutional and void, and can afford no support to the first eight and to the eleventh articles of impeachment. 2. It is important to observe that no objection upon constitutional grounds is made, or can be made, to some parts of the tenure-of-office act. The sixth section, for instance, is entirely unexceptionable, and was very properly acted upon by the President in giving notice to the Secretary of the Treasury of Mr. Stanton's suspension in August, 1867. And so the second section of the act, in authorizing the suspension of officers between sessions of the Senate, violates no provision of the Constitution, and denies no just claim of executive power. It was quite competent for the President to suspend Mr. Stanton under that section, notwithstanding his denial of the validity of the first section, and if he had done so in express terms he would not have exposed himself to a charge of inconsistency. It is true he puts his suspension of Mr. Stanton upon the executive power to remove him under the Constitution, holding that the power to remove includes the power to suspend, but still the act of suspension fell within the letter of the law and was in all respects conformed to it. While it was from the President's point of view a good exercise of power under the Constitution, it was also undeniably a good exercise of power within the terms of the law; and if placed upon the latter ground alone it would not be an admission of the constitutionality of the whole law, but only of so much of the second section as authorizes suspension from office. It is only necessary to add here, by way of explanation, that while Mr. Stanton's case is believed not to come within the operation of the first section, the power to suspend him is clearly conferred by the second. 3. I hold that the violation of law by a President which will constitute an impeachable high crime or misdemeanor must be a wilful and intentional violation, and in its nature calculated to produce serious injury to the public service. Mistake and error of judgment merely are not to be punished by impeachment, but only grievous and wilful crime which endangers the public safety or welfare. Therefore, if there was an honest misconstruction of the tenure-of-office act by the President, in holding that Mr. Stanton's case was not within it, he cannot be convicted. The removal of Mr. Stanton was not an act calculated to injure the public service or shock the moral sense of the people. And the construction of the tenure-of-office act adopted by the President, whether right or wrong, was not an unreasonable or rash one, but was precisely that construction which had been assigned to it in the Senate, at the time of its passage, and which appears to be most consistent with its terms. 4. Assuming that the first section of the tenure-of-office act was one of doubtful constitutionality and construction, I hold that the President was fully justified in challenging its application to his Secretaries, and in taking necessary steps to have its validity and construction determined in the courts of law. But his position as to his right and duty in this respect has been grossly misrepresented and, perhaps, greatly misunderstood. It was stated, however, by Judge Curtis, in his opening for the defence, with a clearness and completeness which leave nothing to be desired, and remove all excuse for misconception or complaint. He said: * * * I am not intending to advance upon or occupy any extreme ground, because no such ground has been advanced upon or occupied by the President of the United States. He is to take care that the laws be faithfully executed. When a law has been passed through the forms of legislation, either with his assent or without his assent, it is his duty to see that that law is faithfully executed so long as nothing is required of him but ministerial action. He is not to erect himself into a judicial court and decide that the law is unconstitutional, and that therefore he will not execute it. He asserts no such power. He has no such idea of his duty. His idea of his duty is, that if a law is passed over his veto which he believes to be unconstitutional, and that law affects the interests of third persons, these whose interests are affected must take care of them, vindicate them, raise questions concerning them if they should be so advised. If such a law affects the general and public interests of the people, the people must take care at the polls that it is remedied in a constitutional way. But when, senators, a question arises whether a particular law has cut off a power confided to him by the people through the Constitution, and he alone can raise the question, and he alone can cause a judicial decision to come between the two branches of the govern ment to say which of them is right, and after due deliberation with the advice of those who are his proper advisers, he settles down firmly upon the opinion that such is the character of the law, it remains to be decided by you whether there is any violation of his duty when he takes the needful steps to raise that question and have it peacefully decided. (Page 382.) And again he said, (page 391 :) So long as it is a question of administrative duty merely, he, [the President, ] holds that he is bound by the law. It is admitted on all hands that a private citizen may proceed in a peacefumanner to resist any law which violates his personal rights under the constitul tion, and may bring such law before the courts for judicial condemnation. And even if he should be mistaken as to his right, and as to the invalidity of the law, his error will not be imputed to him as a crime. And so, where a question arises as to the constitutional right of the President to change his constitutional advisers-the men who constitute his political household, and for whose acts he is responsible to the people and to the law-as against a statute which invades or denies to him such right, can it be doubted that he may challenge the statute and carry it into the courts of law for judg ment? And where the statute is plainly in contempt of the past practice of the government, and of the very highest authorities which can be cited upon a question of constitutional law, and no one but the President can bring it to the test of judicial examination and judgment, is not his duty to challenge it as incontestable as his right? CONCLUSION. I have now concluded my examination of the several articles of impeachment and of the act of Congress upon which most of them are founded. The general question of presidential power under the Constitution to remove officers of the United States from office at discretion has been but slightly noticed, and no attention has been bestowed upon those topics of declamation and invective which have been intruded into the trial. The constitutional question was discussed by me at length when the tenure-of-office act was passed, and I do not find it necessary to repeat the argument then made by me in order to explain or vindicate my judgment upon these articles of impeachment. As to the extraneous and irrelevant matters introduced into the trial, and particularly into the argument, I put them wholly aside. This case is to be tried upon the laws which apply to it, and upon the facts which are duly proved. The issue joined is not political but judicial, and it is upon specific articles of accusation. They are to be decided honestly and firmly, and nothing beside them is to pass into judgment. In my opinion the acquittal of the President upon all the charges preferred against him is authorized by law and demanded by justice. He has committed no high crime or misdemeanor. He has trampled upon no man's right; he has violated no public duty. He has kept his oath of office unbroken and has sought in a lawful manner to vindicate and preserve the high constitutional powers confided to him by the people. He cannot and ought not to be punished for his opinions upon public measures and public policy; and, in contemplation of law, his conduct in all the matters brought before us for review has been irreproachable. What he has done indicates not criminal intent but patriotic purpose; and besides, that true courage, sustained and invincible, which grapples with difficulty and defies danger.. OPINION OF MR. SENATOR HARLAN. In the first article of impeachment the House of Representatives accuse Andrew Johnson, President of the United States, of the commission of “a high misdemeanor in office," in issuing an order, during the session of the Senate, for the removal of Edwin M. Stanton, Secretary of the Department of War, from said office, February 21, 1868, in violation of the Constitution and of an act entitled "An act regulating the tenure of certain civil offices," approved March 2, 1867. The President in his answer to this article, presented to the Senate March 23, 1868, admits that he did remove said Stanton from said office by suspending him August 12, 1867, and by making it absolute and perpetual, as per order dated February 21, 1868; and justifies the act of removal by asserting That the Constitution of the United States confers on the President * * * the power at any and all times of removing from office all executive officers for cause, to be judged of by the President alone, and that the Congress could not deprive him thereof. (Impeachment Record, p. 23.) It is proper to observe in the beginning that the President does not justify under any existing statute that of 1789, creating the Department of War, or any other. He admits the act of removal, and claims that it was not “a high misdemeanor in office." Alleging that the Constitution confers on him the absolute and exclusive right to remove all executive officers at discretion, whether the Senate be in session or not, and admitting the existence of an act of Congress prohibiting it, the act of removal was, nevertheless, legal, because, in his opinion, Congress had no right, under the Constitution, to prohibit, to regulate, or in any way to interfere with the exercise of this executive function. This is the issue joined under the first article, which brings us necessarily to an examination of the provisions of the Constitution which are supposed to clothe the President with this exclusive authority to make removals from office. The Constitution does not anywhere, in terms, confer on the President the authority to make removals; nor does it anywhere confer on him this right by necessary implication. It does confer on him the qualified right to make appoint ments. The second clause of the second section of article two of the Constitution provides that 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. It also provides that 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. And the last clause of this section provides that— 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. It is therefore clear the President is clothed by direct grant of the Constitution with the absolute, unrestrained, and exclusive right to make appointments to fill vacancies temporarily which may happen during the recess of the Senate, and with the qualified right to make permanent appointments during the sessions of the Senate; but he is not clothed with the authority by direct grant to make removals either in the recess or during the sessions of the Senate. Nor does the President appear to be vested with the exclusive authority to make removals by any necessary implication, or by any necessary construction of any other clause of the Constitution. It is sometimes argued that the right to remove is a necessary incident or concomitant of the right to appoint. But this is begging the very question at issue. Is it a necessary incident of the power to appoint? If so, why is it so? May not the act of appointment be distinct and separate from the act of removal? If not-if they must necessarily go together-if they must necessarily be performed by the same party or parties-if they are necessary concomitants of each other, it will follow irresistibly that the President, having the exclusive and absolute authority to make temporary appointments to fill vacancies during the recess of the Senate, may make removals during the recess; and as he is clothed only with a qualified right to make appointments during the session, the right to remove during the sessions of the Senate must be qualified by the same limi tations. To assert the contrary would involve the absurdity of insisting that the incident is superior to the principle, that the implied power is greater than the direct grant; or, to apply the reasoning in physics, it would be to assert that the reflected light from another surface may be superior to the direct solar ray-that the momentum of a flying projectile is greater than the original force from which it derived its motion. It is clear, therefore, as it seems to me, if the right of removal is an incident of the right to appoint-if the two acts must go together-if all the authority possessed by the President to remove an officer is derived from the grant of authority to appoint, and if the power to appoint during the sessions of the Senate is qualified, depending on the "advice and consent of the Senate," it must follow that the authority to remove during the sessions is in like manner qualified and dependent on the advice and consent of the Senate. But if the power of appointment and the power of removal are separate func tions, it would have been possible for the framers of the Constitution to have conferred on the President the authority to perform the one and to have withheld from him the authority to perform the other. Conferring on him the right to appoint, they might have left the power to remove in abeyance, to be regulated by law, or might have conferred the latter authority on some other officer or department of the government. And if it should be found on examination that the authority to remove officers of the United States or any of them has been vested by the Constitution in some other organ of the government, it would seem to raise a very strong presumption that it was not the intention of the framers to confer this authority, as them, on the President. Now, by reference to the fourth section of article two of the Constitution it will be seen that the authority to remove all civil officers is vested in the Senate. It directs that The President, Vice-President, and all civil officers of the United States shall be removed from office ou impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. The sixth clause of the third section of article one provides that— This, if it were a new question, would seem to make it clear that the President could not make removals of civil officers. The Constitution does not confer the right on him by any direct grant, and does confer the power in direct terms on the Senate to remove all civil officers, and, if they should see proper, to disqualify them ever afterward from the right to hold office under the United States. The implied right of the President to make removals at discretion is sometimes claimed under the third section of article three of the Constitution, which provides that the President "shall take care that the laws be faithfully executed." It is insisted that the President must exercise the power of removing unfaithful, incompetent, and corrupt officers in order to secure "the faithful execution of the laws." But if this is a correct construction, if being charged with seeing that the laws are faithfully executed necessarily vests in him the right to remove unfaithful officers at his own discretion, he may remove judicial as well as executive officers; the judges of the Supreme Court as well as the heads of executive departments. If not, why not? It may be said that the Constitution provides that "the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior." But who shall judge of their behavior," whether it be good or bad? If in the President's opinion the judges do behave badly; if in his opinion, on account of their malfeasance or misfeasance in office, he could not faithfully execute the laws, why may he not remove them? It may be said that the Constitution does not in terms confer on the President the right to remove them even for cause, however flagrant, and does confer the power on the Senate by impeachment. I answer that it does not confer on the President in express terms the right to remove other officers, even for cause, and that it does confer this right on the Senate to remove the latter as well as judges. In this respect the judges are not exceptional. 66 It may be said, however, that although the Constitution does vest the power to remove all other civil officers for impeachable offences in the Senate, it does not provide that they shall not be removed in some other mode or by some other officer or department of the government. I answer, nor does the Constitution provide that judges shall not be removed in any other mode, or by any other officer or department of the government. It simply says that the judges shall hold their offices during good behavior. When they behave badly they may be removed. They may be removed for impeachable offences, like all other civil officers, by the Senate. And if clothing the Senate with power to remove other civil officers does not, by implication, deprive the President of the authority to remove them when, in his opinion, the faithful execution of the laws may require it, by what process of reasoning can it be claimed that the judges can be removed by the Senate only? The Constitution does not say so. It does not prohibit the removal of the judges by the President. And if he finds that a judge is corrupt, wilfully misinterprets the laws, or refuses to adjudicate causes, and if Congress should not be in session, or being in session, should refuse or neglect to remove him by impeachment, why may not the President do it? If it is conceded that he may remove a Secretary of War at discretion, either during the session of the Senate or in the recess, under that clause of the Constitution which makes it his duty "to see that the laws are faithfully executed," why may he not, under the same clause, remove a judge for what he may consider gross misconduct ? There can be but one answer. The practice of the government has sanctioned the removal of other civil officers by the President at will during the recess of the Senate, and by and with the advice and consent of the Senate during its sessions; and no President has yet ventured on the exercise of the authority to remove the judges of the courts of the United States. The distinction has no sanction in reason, or in the well-settled rules of legal construction. But if the President is clothed by the Constitution "with power at any and all times (during the session as well as in the recess) of removing from office all' |