THE SUBSTITUTION OF THOMAS AD INTERIM The case of Mr. Stanton has two branches: first, his removal, and, secondly, the substitution of General Thomas as Secretary of War ad interim. As the first was contrary to positive statute, so also was the latter without support in the acts of Congress. For the present I content myself with this latter proposition, without opening the question of the powers of the President under the Constitution. 66 66 The offender rests his case on the act of Congress of February 13, 1795, (1 Statutes at Large, 415,) which authorizes the President, "in case of vacancy in the office of Secretary of War, whereby he cannot perform the duties of said office," to appoint any person" until a successor be appointed or such vacancy be filled; and the supply of the vacancy is limited to six months. Under this early statute the President defends himself by insisting that there was a vacancy," when, in fact, there was none. All this is in that unfailing spirit of prerogative which is his guide. Here is an assumption of power. In point of fact, Mr. Stanton was at his office quietly discharging its duties when the President assumed that there was a "vacancy," and forthwith sent the valiant Adjutant General to enter upon possession. The assumption and the commission were on a par. There is nothing in any law of the land to sanction either. Each testifies against the offender. The hardihood of this proceeding becomes more apparent, when it is understood that this very statute of 1795, on which the offender relies, was repealed by the statute of February 20, 1863, passed in our own day, and freshly remembered by many of us. The latter statute, by necessary implication, obliterated the former. Such is the obvious intention, and I do not hesitate to say that any other construction leads into those absurdities which constitute the staple of the presidential apologists. The object of Congress was to provide a substi tute for previous statutes, restricting at once the number of vacancies which might be filled, and the persons who might fill them. And this was done. As by the Constitution all appointments must receive the consent of the Senate, therefore any legislation in derogation thereof must be construed strictly; but the President insists that it shall be extended even in face of the constitutional requirement. To such pretensions is he driven. The exception recog nized by the Constitution is only where a vacancy occurs during the recess of the Senate, when the President is authorized to appoint until he can obtain the consent of the Senate and no longer. It is obvious, however, that cases may arise where a sudden accident vacates the office or where the incumbent is temporarily disabled. Here was the occasion for an ad interim appointment, and the repealing statute embodying the whole law of the subject, was intended to provide for such cases; securing to the President time to select a successor, and also power to provide for a temporary disability. Such is the underlying principle of this statute, which it is for us to apply on the present occasion. The expiration of a commission, which ordinary care can foresee, is not one of these sudden emergencies for which provision must be made; and, assuming that vacancies by removal were contemplated, which must be denied, it is plain that the delay required for the examination of the case would give time to select a successor, while a removal without cause would never be made until a successor was ready. Look now at the actual facts and you will see how little they come within the reason of an ad interim appointment. Evidently the President had resolved to remove Mr. Stanton last summer. Months passed, and he did not consummate his purpose till February. All the intervening time was his to select a successor, being a period longer than the longest fixed for the duration of an ad interim appointment by the very statutes under which he professed to act. In conver sation with General Sherman, a month before the removal, he showed that he was then looking for a successor ad interim. Why not a permanent successor! It took him only a day to find Mr. Ewing. If, as there is reason to suppose, Mr. Ewing was already selected, when General Thomas was pushed forward, why appoint General Thomas at all? Why not, in the usual way, transmit Mr. Ewing's name as the successor? For the excellent reason, that the offender knew the Senate would not confirm him, and that, therefore, Mr. Stanton would remain in office; whereas through an ad interim appointment he might obtain possession of the War Department, which was his end and aim. The ad interim appointment of General Thomas was, therefore, an attempt to obtain possession of an office without the consent of the Senate, precisely because the offender knew that he could not obtain that consent. And all this was under the pretext of an act of Congress, which, alike in letter and spirit, was inapplicable to the case. Thus does it appear, that, while Mr. Stanton was removed in violation of the tenure-of-office act, General Thomas was appointed Secretary of War ad interim in equal derogation of the acts of Congress regulating the subject. REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION. It remains to consider if the removal and substitution were not each in violation of the Constitution. The case is new, for never until now could it arise. Assuming that the tenure-of-office act does not protect Mr. Stanton, who is thus left afloat in the limbo between the body of the act and the proviso, then the President is remitted to his prerogative under the Constitution, and he must be judged accordingly, independent of statute. Finding the power of removal there, he may be justified; but not finding it there, he must bear the consequences. And here the tenure-of-office act furnishes a living and practical construction of the Constitution from which there is no appeal. From the Constitution it appears that the power of appointment is vested in the President and Senate conjointly, and that nothing is said of the power of removal, except in case of impeachment, when it is made by the Senate. Therefore, the power of removal is not express, but implied only, and must exist, if at all, as a necessary consequence of the power to appoint. In whom must it exist? It is a familiar rule that the power which makes can unmake. Unless this rule be rejected, the power of removal must exist in the President and Senate conjointly; nor is there anything unreasonable in this conclusion. Removal can always be effected during the session of the Senate by the nomination and confirmation of a successor, while provision can be made for the recess by an act of Congress. This conclusion would be irresistible, were the Senate always in session, but since it is not, and since cases may arise during the recess requiring the immediate exercise of this power of removal, it has been argued that at least during the recess it must be in the President alone. From this position there has been a jump to the next, and it has been insisted that since, for the sake of public convenience, the power of removal exists in the President, he is at liberty to exercise it, either during the recess or the session itself. Here is an obvious extension of the conclusion which the premises do not warrant. The reason failing the conclusion must fail. Cessante ratione cessat etiam ipsa lex. Especially must this be the case under the Constitution. A power founded on implied necessity must fail when that necessity does not exist. The implication cannot be carried beyond the reason. Therefore, the power of removal during the recess, doubtful at best unless sanctioned by act of Congress, cannot be extended to justify the exercise of that power while the Senate is in session, ready to act conjointly with the President. Against this natural conclusion we have the assumption that a contrary construction of the Constitution was established after debate in 1789. I avoid all details with regard to this debate which has been considered and cited so often. I content myself by asking if at best it was anything but a congressional construction of the Constitution, and, as such, subject to be set aside by another voice from the same quarter. It was, moreover, a congressional construction adopted during the administration of Washington, whose personal character must have influ enced opinion largely; and it prevailed in the House of Representatives only after earnest debate, by a bare majority, and in the Senate only by the casting vote of the Vice-President, John Adams, who, from position as well as principle, was not inclined to shear the President of any prerogative. Once adopted, and no strong necessity for a change occurring, it was allowed to go unaltered, but not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, Calhoun, and Benton, recorded themselves adversely, and it was once reversed by the vote of the Senate. This was in 1835, when a bill passed the Senate, reported by Mr. Calhoun and sustained by the ablest statesmen of the time, practically denying the power of the President. The tenure-of-office act was heralded in 1863 by a statute making the Comptroller of the Currency removable "by and with the advice and consent of the Senate," thus, in this individual case, asserting for the Senate a check on the President; and then in 1866, by a more important measure, being the provision in the army appropriation act, that "no military or naval officer shall be dismissed except upan the sentence of a court-martial;" thus putting another check on the President. Finally, this congressional construction, born of a casting vote, and questioned ever since, has been overruled by another congressional construction, which has been twice adopted in both houses, first by large majorities on the original passage of the tenure-of-office act, and then by a vote of two-thirds on the final passage of the same act over the veto of the President; and then again adopted by a vote of more than two-thirds of the Senate, when the latter condemned the removal of Mr. Stanton; and all this in the light of experience, after ample debate, and with all the consequences before them. Such a congressional construction must have a controlling influence, and the fact that it reversed the practice of eighty years and overcame the disposition to stand on the ancient ways, would seem to increase rather than diminish its weight. Now, mark the consequences. Originally, in 1789, there was a congressional construction, which, in effect, made the Constitution read: The President shall have the power of removal. For the next eighty years all removals were made under this construction. The tenure-of-office act was a new congressional construction, overruling the first and entitled to equal if not superior weight. By virtue of this congressional construction, the Constitution now reads: : The President shall not have the power of removal. It follows, then, that in removing Mr. Stanton the President violated the Constitution as now construed. The dilemma is this: If the President can remove Mr. Stanton during the session of the Senate, without any power by statute, it is only by virtue of a prerogative vested in him by the Constitution, which must necessarily override the tenure-of-office act, as an unconstitutional effort to abridge it. If, on the other hand, this act is constitutional, the prerogative of removal is not in the President, and he violated the Constitution when he assumed to exercise it. The tenure-of-office act cannot be treated otherwise than constitutional. Certainly not in the Senate, where some among the apologists of the President voted for it. Therefore the prerogative of removal is not in the President. The long practice which grew up under a mere reading of the Constitution, has been declared erroneous. To this extent the Constitution has been amended, and it is as absurd to plead the practice under the first reading in order to justify an offence under the second, as to plead the existence of slavery before the constitutional amendment in order to justify this monstrosity now. Thus must we conclude that the offender has not only violated the tenure-ofoffice act, but also the Constitution; that, even assuming that Mr. Stanton is not protected by the statute, the case is not ended; that this statute, if con strued so as to exclude him, cannot be rejected as a congressional construction of the Constitution; and that, under this congressional construction, which in value is second only to a constitutional amendment, the prerogative of removal without the consent of the Senate does not belong to the President. Of course the power of suspension under the Constitution, which is only an incident of the larger pretension, must fall also. Therefore, in the defiant removal of Mr. Stanton, and also in the pretended suspension under the Constitution with which the transaction began, the President violated the Constitution, and was guilty of an impeachable offence. And so, also, we must conclude that, in the substitution of Lorenzo Thomas as Secretary of War ad interim, the offender violated not only the acts of Congress for the supply of vacancies, but also the Constitution. Knowing that he could not obtain possession of the office with the consent of the Senate, he sought to accomplish this purpose without that consent. Thus, under color of a statute, he practically set the Constitution at defiance. sistency. He violates the tenure-of-office act, alleging that it is against the Constitution, whose champion he professes to be, and then takes advantage of the acts of Congress for the supply of vacancies to set aside the Constitution in one of its most important requirements; for all which he is justly charged with an impeachable offence. All this seems clear. Any other conclusion gives to the President the power under the Constitution to vacate all national offices and leaves the republic the w retched victim of tyranny, with a ruler who is not even a constitutional mona'ch, but a king above all laws. It was solemnly alleged in the articles against Charles I of England, that "being admitted king of England, and therein trusted with a limited power to govern by and according to the laws of the land and NOT OTHERWISE," he nevertheless undertook “to rule according to his will and to overthrow the rights and liberties of the people." These very words might be adopted now to declare the crime of Andrew Johnson. THE APOLOGIES. Here I might close; but the offender has found apologists, who plead his cause at the bar and in the Senate. The apologies are a strange compound, enlarging rather than diminishing the offences proved. There is, first, the Apology of Good Intentions; next, the Apology of making a case for the Supreme Court, being the Moot Court Apology; and, then, the Apology that the President may sit in judgment on the laws, and determine whether they shall be executed, which I call the Apology of Prerogative. Following these is a swarm of technicalities, devices, and quibbles, utterly unworthy of the Senate, and to be reprobated by all who love justice. THE APOLOGY OF GOOD INTENTIONS. I begin with the Apology of Good Intentions. In the light of all that has occurred, with the volume of history open before us, with the records of the Senate in our hands, and with the evidence at the bar not utterly forgotten, it is inconceivable that such an apology can be put forward. While making it the apologists should be veiled, so that the derisive smile on their faces may not be observed by the Senate, to whose simplicity it is addressed. It is hard to treat this apology; but it belongs to the case, and therefore I deal with it. Of course a mere technical violation of law, with no evil consequences and without any claim of title, is followed by nominal damages only. If a person steps on a field of grass belonging to another, without permission, he is a trespasser, and the law furnishes a familiar proceeding against him; but if he has 'done this accidentally, and without any real damage, it would be hard to pursue him, unless the assertion of the title were thought important. But if this trespasser is an old offender, who from the beginning has broken fences, ruined trees, and trampled down the garden, and who now defiantly comes upon the field of grass, insisting upon absolute ownership, then it is vain to set up the apology that very little damage is done. The antecedent transgressions, ending in a claim of title, enter into the present trespass and make it a question whether the rightful owner or the trespasser shall hold possession. Here the rightful owner is the people of the United States, and the trespasser is Andrew Johnson. Therefore in the name of the people is he impeached. This simple illustration opens the whole case. The mere technical violation of a statute or of the Constitution, without antecedents and without consequents, would not justify an impeachment. All of us can recall such, even in the administration of Abraham Lincoln, and I cannot doubt that, since this proceeding began, the Chief Justice violated the Constitution when he undertook to give a casting vote, not being a member of the Senate. But these were accidents, besides being innocuous. From a violation of the Constitution or of a statute, the law ordinarily infers evil intent, and where such a case is submitted to judg ment, it throws upon the violator the burden of exculpation. He must show that his conduct was innocent; in other words, that it was without evil intent or claim of title. In the present cause we have a denial of evil intent, with a claim of title. The question of intent thus raised by this offender cannot be considered narrowly. This is a trial of impeachment, and not a criminal case in a county court. It is a proceeding for expulsion from office on account of political offences, and not a suit at law. When the offender sets up good intentions, he challenges inquisition, according to the latitude of such a proceeding. The whole past is unrolled by himself, and he cannot prevent the Senate from seeing it. By a commanding rule of evidence it is all before us without any further proof. You cannot shut it out; you cannot refuse to look at it. And yet we have been seriously told that we must shut out from sight everything but the technical trespass. It only remains that, imitating the ostrich, we should thrust our heads in the sand, and, not seeing danger, foolishly imagine it does not exist. This may do at Nisi Prius; it will not do in the Senate. To such extent has this ostrich pretension been carried, that we have been solemnly admonished at the bar, and the paradox has found voice in the Senate, that we must judge the acts of Andrew Johnson "as if committed by George Washington." Here is the paradox in its length and breadth. I deny it. I scout it. On the contrary, I say that we must judge all these acts as if committed by Andrew Johnson, and nobody else. In other words, we must see things as they are.' As well insist that an act of guilt should be judged as the mistake of innocence. As well argue that the stab of the assassin should be treated as the cut of the surgeon. To the Apology of Good Intentions, I oppose all that long unbroken series of transgressions, each with a voice to drown every pretext of innocence. I would not repeat what I have already said, but, in the presence of this apology, it is my duty to remind the Senate how the career of this offender is compounded of falsehood and usurpation; how, beginning with promises to make treason odious, he soon installed it in authority; how, from declared sympathy with Unionists, white and black, he changed to be their persecutor; how in him are continued the worst elements of slavery, an insensibility to right and a passion for power; how in this spirit he usurped great prerogatives which did not belong to him; how in the maintenance of this usurpation he stuck at nothing; how he violated law; how he abused the pardoning power; how he prostituted the appointing power; how he wielded the power of removal to maintain his tyranny; how he sacrificed the Freedmen's Bureau and lifted up the Whiskey Ring; how he patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan how, in madness, he entered into conflict with Congress, contesting its rightful power over the reconstruction of the rebel States, and, when Congress would |