confesses that he sought to evade and did, as he thinks, evade the declared and admitted will of the legislature.

With this admission in his official answer to this article before our eyes, there can be no doubt that he did with malice prepense violate the true, known, and admitted intent of this law. Believing as I do that the President did thus officially place the correct construction on said law, and that said law is in harmony with the Constitution, and that he did wilfully violate its provisions which violation is declared by said law to be "a high misdemeanor," I do not perceive how it is possible for a senator, on his oath, to avoid finding him guilty as charged in the first article of impeachment.

In relation to the second article of impeachment, I may observe, the House of Representatives accuse the President of the committal of a high misdemeanor in office in appointing Lorenzo Thomas, Adjutant General United States. army, Secretary of War ad interim on the 21st day of February, 1868, there being no vacancy in said office, without the advice and consent of the Senate, the Senate being in session.

The President in his answer admits that he did issue the order of appointment, as charged, without the advice and consent of the Senate, the Senate being in session, (Impeachment trial, p. 27,) and justifies by declaring that there was at the time a vacancy in said office, and that—

It was lawful according to a long and well-established usage to empower and authorize the said Thomas to act as Secretary of War ad interim.

To support this justification, his counsel in the argument of this cause, and several senators during this consultation, have cited two statutes which authorize temporary appointments. The first one was enacted May 8, 1792, and the second February 13, 1795. The first one is marked "obsolete" on the statutebook, and is admitted to have been repealed (if not before) by the act of February 20, 1863, which covers all the matter contained in the act of 1792, and is also inconsistent with it. This brings us to the consideration of the plea of authority to appoint Mr. Thomas to the office of Secretary of War ad interim during the session and without the consent of the Senate, under the statute of 1795, even if a vacancy did legally exist. These are the exact words of the law:

That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancies be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months. Approved February 13, 1795. (Statutes at Large, vol. 1, p. 415.)

I notice that the senator from Maine, [Mr. Fessenden,] in the observations submitted by him, has, as I think, misconstrued this law by omitting in the text, as cited by him, an entire clause, necessary to be considered in arriving at a correct construction. It is in these words: "Whereby they cannot perform the duties of their said respective offices." These are words of limitation which the judge or commentator has no right to ignore or erase. Had they been omitted by Congress in enacting the law-did they not stand as a part of it—the senator's rendering would be less vulnerable. But, giving these words their usual meaning and force, his rendering is manifestly erroneous. Applying this law to the actual case at bar, and omitting unnecessary descriptive phrases, it will read:

That in case of vacancy in the office of the Secretary of War, whereby he cannot perform the duties of his said office, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person, at his discretion, to perform the duties of the said office, &c.: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months.

16 I P-Vol. iii

Now, it may be observed that there are two classes of vacancies known to the statutes, and which may occur in the administration of the departments: absolute legal vacancies in office by death, resignation, or expiration of term of service, whereby there are no officers in existence for the respective offices; and vacancies occasioned by the absence of officers from their respective offices, on account of sickness, or absence from the seat of government. The question therefore arises whether the vacancies contemplated and provided for by this statute are of the first or of the second class, or whether both are included.

It appears to my mind perfectly clear that the first class are not intended to be included, and that the law is applicable only to cases of vacancy by the absence of officers from their offices, the said offices being legally filled, but the incumbents being incapable, for any sufficient reason, to perform their official duties.

To construe this statute so as to apply to absolute vacancies in office would, as it appears to me, make it both useless and unconstitutional. For, in case of an absolute legal vacancy in the recess of the Senate, the Constitution itself, in direct terms, authorizes the President to fill it temporarily, to continue for as long or as short a period as he may desire, not extending beyond the end of the next session of the Senate. Hence, if this law was intended to confer on the Presi dent the power to fill legal vacancies in office, occurring in the recess, it is nugatory-it is perfectly useless-for the President was previously vested by the Constitution with this authority.

And to assume that the intent of this law was to provide for absolute legal vacancies in office occurring during the sessions of the Senate would make it clearly unconstitutional; for the Constitution provides, as we have seen, that the President "shall nominate, and by and with the advice and consent of the Senate shall appoint, all officers" whose appointments are not otherwise provided for in the Constitution itself, whether created by the Constitution or by law. The President must, therefore, obtain the consent of the Senate when in session before he can make an appointment to fill an absolute legal vacancy, with the exception of one class of officers only, inferior officers, who may be appointed by the President alone when Congress shall so provide by law. But the office of Secretary of War is not of this class. It is not an inferior office, and is declared by the law of 1789 to be a superior office, and the Secretary is styled "a principal officer." Congress could not, therefore, by law vest the appointment of this and similar officers exclusively in the President, either for a short or a long period. To maintain that Congress could by law dispense with the advisory power of the Senate would be equivalent to a declaration that Congress could by law amend the Constitution or abolish it entirely; for if Congress could suspend one of its provisions, they may suspend any or all of them. This would be reducing the authority of that great charter to the grade of a statute only.

The limitation of such appointments to a period not exceeding six months could not change the constitutionality of the provision. For, if Congress could by a statute dispense with the advisory power over appointments during the sessions of the Senate for a single day, they could for a year or ten years or forever. It is not a question of time during which such appointment may run, but of constitutional power to deprive the Senate of an opportunity to exercise a judgment in the case. The Constitution vests this authority in the Senate, without regard to the length of time of the service of the appointee; and it does not confer the authority on the President to disregard it, nor on Congress the power to set it aside either for a long or a short period.

Congress could, of course, abolish the War or any other department created by law. They could also abolish the office of Secretary of War, or unite the War Department with some other department, temporarily or permanently, and require the head of that other department to perform the duties of both, or

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is office-the legal tenure still continuing in him the city; is disabled by insanity or sickness; is i necessarily occupied with other duties. This inte ny with the literal and usual meaning of the wo ase of vacancy in the office of Secretary War * * * * whereby he cannot perform it shall be lawful for the President of the United it necessary, to authorize any person, at his dis of the said office,'" &c. And any other construc ng phrase," whereby they cannot perform the duti =es," meaningless. It is a settled rule of constru ■le, give every word of a statute meaning and fore g can be attached to this clause if applied to an a ch, resignation, removal, or expiration of legal term o officer, and his legal functions as such, have cease in existence. To apply these qualifying words in annot perform the duties of their said respective The law does not provide that "in case of any vac In case of vacancies of this description, "whereby t › duties of their offices."

oning would apply to another qualifying phrase i resident to make temporary appointments. It i he shall think it necessary." How is it possible to ctual legal vacancy in a superior office, such as S f War, &c.? The necessity of having an officer t ettled by Congress when the law was enacted creat cy occurred, the necessity of filling it could not be vas sick or absent from the city, "whereby he coul his said office," the question of necessity for the ap etail or otherwise, to perform these duties, until he is post, would arise. And no one would be a more ecessity than the President.

here, in passing, that the allegation so frequently m President's counsel, and by senators in this consult

almost from the formation of the government," is not supported by facts. I have examined, as carefully as my time would permit, all that long list of cases of temporary appointments, supposed by the President's counsel to bear on this case, as they stand recorded in the printed record of this trial, beginning on page 575 and ending on page 582, and find that nearly all of them were made, as the list itself shows, on account of the absence or sickness of the regularly appointed officer. And nearly all of the residue were made to fill vacancies occurring during the recess of the Senate, and I do not find a single case of temporary appointment to fill a vacancy occasioned by a removal made during the session of the Senate. I therefore conclude that no such case exists, or it would have been produced, as the learned and numerous counsel had full access to the records of the departments and of the chief executive office.

Should it appear, however, that a case or two of temporary appointments had been made by previous Presidents, in a period of nearly eighty years, on account of an actual vacancy occurring by death or resignation, during the ses sion of the Senate, it would not justify the unaccountable allegation of counsel and of senators that the precedents were almost numberless, and that the chain was unbroken. Nor would one case or many of violated law, by others, if they really existed, justify the President in the performance of an illegal act. But when his act is unsupported by a single case, this attempt at justification is most remarkable and startling.

After giving this subject the most careful examination of which I am capable, I am compelled to come to the conclusion that if there had been an existing legal vacancy in the office of Secretary of War, the President had no authority under the statute of 1795, or any other law, the Senate being in session, to fill it in the mode charged in the second article of impeachment, and admitted in the President's answer. Much less had he the right to both create and fill a vacancy, as charged in the first and second articles.

These acts, whether taken jointly or separately, seem to me to be a clear violation both of the Constitution and the law. That they were performed by the President deliberately and wilfully for the purpose of defeating the execution of the latter, according to its true intent and meaning, is, according to my judg. ment, fully established. I do not, therefore, see my way clear, under the solemnities of my oath, to find him innocent.

Several of the succeeding articles merely recite the offence set forth in article one and article two in different forms, and do not therefore require specific notice, and I do not deem it important to present a formal analysis of the remaining articles which allege other offences, nor of the testimony by which they are supported. On these I will be content to express my opinion by my vote.

OPINION OF MR. SENATOR Doolittle.

I. OF THE REMOVAL OF STANTON.

Mr. CHIEF JUSTICE AND SENATORS: I concur in so much of the opinions of Senators Hendricks, Grimes, Johnson, Fessenden, Trumbull, and Buckalew, that I shall not go over the grounds so ably stated by them to give a general opinion in this cause. They all concur with the senator from Ohio (Mr. Sherman) and my colleague (Mr. Howe) that the tenure-of-office act left the Presi dent at liberty to remove the Secretary of War at pleasure. In this opinion agree. I think that opinion will command the assent of nine-tenths of the legal profession of the whole country. It is too clear, in my opinion, to admit of serious argument, and I shall spend no time upon that.

I

word "obsolete" is found. But immediately o so, "act of May 8, 1792, ch. 37." It is the ac solete, not the act of 1795. What makes this cert ublished in 1825, nearly forty years before the ac t Buchanan, in 1860, under the act of 1795, app Var ad interim in place of Floyd. The Senate, what authority he acted, the Senate being in sess sive, overwhelming, giving more than a hundred sad interim. It is impossible for my colleague to 1795 is obsolete.

tute of 1795 repealed by the act of March 2, 18 ton is concerned; for unless his case is covered by demonstrates that it is not, his removal and the Thomas to perform the duties ad interim is no v urly within the act of 1795. I shall dwell no lo

desire to call the attention of the Senator from the act of 1795 which I have not heard commer words of limitation, namely, "whereby they cann respective offices." Do not these words limit the

. Let me remind my honorable friend from Iowa (M the same words in the act of 1863 applying to and resignation, "whereby they cannot perform the ices."

. The same words are in the act of 1792. In t ese words were borrowed from the act of 1792. . That is true; I thank the senator from Pennsy , under the act of 1795, the President can authoriz of the head of the War Department, in case of v power to remove Mr. Stanton is clear under the 5, (Mr. Sherman,) upon the passage of the act, maint n just delivered, makes that point too clear to be c charges I concur entirely with the opinions of Sen nd others, and shall not repeat what they have so w

Tuation and Senators there is another point unc