in some cases the assent of the Senate is required, and in others the tenure of office is fixed for a term of years. A careful examination of the debate of 1789 on the organization of the executive departments will show that while a majority of the House decided that the power of removal was with the President yet they were not agreed upon the basis of this power. The debate was only as to heads of departments, as to whom there are peculiar reasons why they should only hold their offices at the pleasure of the President. The government was new; the President commanded the entire confidence of all classes and parties, and the wisest could not then foresee the rapid and vast extension in territory and population of the new nation, making necessary a multitude of new offices. and increasing to a dangerous degree the power, patronage, and influence inherent in the executive office. Who can believe that if the great men who were then willing that Washington should remove his heads of departments at pleasure, could have foreseen the dangerous growth of executive power, would have been will ing by mere inference to extend his power so as to remove at pleasure all executive officers. This power unrestricted and unlimited by law is greater and more dangerous than all the executive authority conferred upon the President by express grant of the Constitution. His command of the army and navy limited by the power of Congress to raise armies and navies, to declare war, and to make rules and regulations for the government of the army and navy. His power to pardon is limited to cases other than of impeachment. His power to appoint officers and to make treaties is limited by the consent of the Senate. Surely when these express powers, far less important, are so carefully limited by the Constitution, an implied power to remove at pleasure the multitude of officers created by law cannot be inferred from that instrument. If so the implied power swallows up and overshadows all that are expressly given. What need he care for the Senate when he may remove in a moment, without cause, all officers appointed with their consent. What need he care for the law when all the officers of the law are instruments of his will, holding office, not under the tenure of the law, but at his pleasure alone. The logical effect of this power, if admitted to exist under and by virtue of the Constitution, is revolution. However much respect is due to the decision of the first Congress, yet the actual working of civil government is a safer guide than the reasoning of the wisest men unaided by experience.

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Their judgment that the head of a departmant should be removable by the President may be wise, but the power to remove is not conferred by the Constitution, but like the office itself, is to be conferred, created, controlled, limited, and enforced by the law. That such was the judgment of Marshall, Kent, Story, McLean, Webster, Calhoun, and other eminent jurists and statesmen, is shown by their opinions quoted in the argument; but they regarded the legislative construction as controlling for the time the natural and proper construction of the Constitution. The legislative construction given by the first Congress has been gradually changed. Army and navy officers have long been placed beyond the unlimited power of the President. Postmasters and others have a fixed term of office. ˆ Various legislative limitations have been put upon the power and mode of removal. The Comptroller of the Currency holds his office for five years, and can only be removed by the President upon reasons to be communicated to the Senate. Finally, when the derangement of the revenue service became imminent, and the abuse of the power of removal produced a disgraceful scramble for office the legislative authority asserted its power to regulate the tenure of civil offices, by the passage, on the second of March, 1867, of the tenure-of-civil-office act. That this measure is constitutional, and that it is in the highest degree expedient, we have asserted by our vote for the law. The President had the right to demand of us a review of this opinion under the sanction of the special oath we have taken. Aided by the very able argument in this cause, and by a careful review of the authorities, I am still of the opinion

that the Constitution does not confer upon the President as a part of or as incident to his executive authority the power to remove an officer, but that the removal of an officer like the creation of an office is the subject of legislative authority to be exercised in each particular case in accordance with the law.

I therefore regard the tenure-of-office act as constitutional and as binding upon the President to the same extent as if it had been approved by him. He has no more right to disregard the law passed according to the Constitution without his assent, than a senator could disregard it if passed without his vote. The veto power is a vast addition to executive authority, and experience has shown the necessity to limit rather than extend it. But, if in addition to his veto power, he may still disregard a law passed over it, or discriminate against such a law, his veto becomes absolute. No such doctrine is consistent with a republican form of government. The law, when passed in the mode prescribed, must be binding on all or on none. He who violates it violates it at his peril. If, therefore, the removal of Mr. Stanton is within the penal clauses of that act the President is guilty not only of an impeachable but an indictable offence. He cannot excuse himself by showing that he believed it unconstitutional, or that he was advised that it was unconstitutional. If a citizen assumes that an act is unconstitutional and violates it he does it at his peril. He may on his trial asert its unconstitutionality, and if the court of last resort in his case pronounces the law unconstitutional he will be acquitted. He takes that risk at his peril. If the law is held constitutional his belief to the contrary will not acquit him. Ignorance of the law does not excuse crime, and he who undertakes to violate it on the pretence that it is unconstitutional-thus setting up his opinions against that of the law-making power-must take the consequences of his crime.

The same rule applies much stronger to the President when he violates a law on the claim that it is unconstitutional. He is not only bound to obey the law, but he is sworn to execute the law. In resisting it he violates his duty as a citizen and his oath. as an officer. If he may protect himself by an honest opinion of its unconstitutionality, then all his responsibility ceases. He may assert it on his trial like all other persons accused of crime, but the court having final jurisdiction of his case, must decide this question like all others, and if that court affirms the law, his guilt is complete.

In this case the President knew that a breach of this law by him could only be tried by the Senate. His pardoning power exempts him from all punishment, except by and after impeachment. His case can only be tried by the Senate, and it is a court of last resort. His violation of this law might enable others to get the opinion of the Supreme Court, by creating rights or claims to office; but his offence could not be tried before the Supreme Court, but must be tried before a court that in its legislative and executive capacity had already thrice considered this law and held it valid. A violation of it then, on the pretext of its unconstitutionality, would be in the face of these well-considered judgments of the court that alone was competent to try his cause, and would be in the highest sense wilful, deliberate, and premeditated.

It remains to consider whether, under the law as it existed on the 21st of February, 1868, the removal of Mr. Stanton was authorized, and this involves only the construction of two acts, viz:

1st. The act entitled "An act to establish an Executive Department, to be denominated the Department of War," approved August 7, 1789, and

2d. The act of March 2, 1867, entitled "An act regulating the tenure of certain civil offices."

The second section of the act of 1789, provides

That there shall be in the said department an inferior officer, to be appointed by the said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk in the Department of War, and who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,

shall, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the said department.

This was copied from the act organizing the Department of Foreign Affairs, which was the subject of the debate so often quoted in this cause. Whatever differences of opinion existed as to the constitutional power of the removal by the President, no one questioned the purpose of this act to declare and affirm the right of the President to remove the Secretary of War. Some who denied the constitutional power were willing to confer it by law as to heads of depart ments, and the first draught of the bill expressly conferred the power of removal on the President. This was changed so as to declare the power to exist and to provide for the vacancy caused by its exercise. This act stands unaltered and unrepealed, unless it is modified by the tenure-of-office act. Under it the power of removal by the President of a cabinet officer has been conceded by each branch of the government during every administration-though disputes have existed as to the origin of the power-some deriving it from the Constitution and others from the plain intent of the act of 1789. The power to remove cabinet officers since the passage of that act was repeatedly recognized by all who took part in the debate in the Senate on the tenure-of office bill-the only question being as to the propriety of continuing the power. I do not understand the managers to question the correctness of this construction, but they claim1st. That the power of removal was limited to during the recess of the Senate, and did not exist during the session of the Senate, and

2d. That the power to remove Mr. Stanton was taken from the President by the tenure-of office act.

Does the act of 1789 make a distinction between removals during the session and during the recess of the Senate? Upon this point, at the opening of this trial, I had impressions founded upon a distinction that I think ought to have been made in the law; but a full examination of the several acts cited, and the debates upon them, show that in fact no such distinction was made. If such had been the intention of the framers of the act of 1789, instead of stating the unlimited power of removal, they would have provided for a removal or vacancy during the recess of the Senate." The debates show that no such distinction was claimed, and that the majority held that the unlimited power of removal was with the President by virtue of the Constitution.

The subsequent acts of 1792, and 1795, in providing for vacancies, made no distinction between vacancies during the session and during the recess, and in the numerous acts cited by counsel, providing for the creation and tenure of offices, passed prior to March 2, 1867, no distinction is made between a removal during the session and during the recess. The practice has corresponded with this construction. In two cases the power to remove heads of departments has been exercised; the one, by John Adams, in the removal of Timothy Pickering; the other, by Andrew Jackson, in the removal of Mr. Duane. The first case occurred during the session, and the latter during the recess. In compliance with this construction, the commissions of heads of departments declare their tenure to be during the pleasure of the President, and the commission under which Mr. Stanton now holds the Department of War, limits his tenure "during the pleasure of the President of the United States for the time being." This form of commission, used without question for 70 years through memorable political contests, is entirely inconsistent with a construction of the act of 1789, limiting the power of removal to the recess of the Senate.

The distinction made by the managers between removals during the session and during the recess is derived from the distinction made by the Constitution between appointments made during the session and during the recess; but this claim is inconsistent with the foundation upon which the tenure-of-office act If removals are governed by the constitutional rule as to appointments, then the President may remove at pleasure during the recess, for he may then

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appoint temporarily without the consent of the Senate, and Congress may not limit this constitutional power. But Congress has wisely, as I have shown, rejected this claim. It has repeatedly dissevered removals from appointments, and has treated the power of removal, not as a constitutional power, but as one to be regulated by law in the creation, tenure, pay, and regulation of offices and officers; and therefore, in ascertaining whether the law makes a distinction between a removal during the session and during the recess, we must ascertain the intention of the law as gathered from its language, history, and construction, and from these we can derive no trace of such a distinction. Nor can this distinction be derived from the rarity of removals of cabinet officers during the session of the Senate, for the argument applies as well to removals during the recess. Removals of heads of departments are rare indeed; for when the tenureof-office bill was pending, it was not considered possible that a case would occur where a head of a department would decline to resign when requested to by his chief. The multitude of cabinet ministers who have held office recognized this duty with but two exceptions. I do not question the patriotism of Mr. Stanton in declining to resign during the recess; but cases of that kind must be of rare occurrence and dangerous example. It was held by us all that the public safety and the public service demands unity, efficiency, and harmony between the heads of departments and the President. To legislate against this, and yet hold the President responsible for their acts, would be unexampled in our history, and therefore the law always gave the President the power to remove at his pleasure these and most other executive officers until we were compelled, by the evil example of a bad President, to limit this power. I therefore conclude that, prior to the 2d of March, 1867, the law invested the President with the power at his pleasure to remove Mr. Stanton both during the session and during the recess, and the question remains whether by the tenure-of office act that power was taken away from him.

To determine the proper construction of this act we must examine its history and the particular evil it was intended to remedy. It was introduced on the 3d day of December, 1866, being the first day of the second session of the thirtyninth Congress. The President having formally abandoned the political party that elected him, undertook, by general removals, to coerce the officers of the government to support his policy. The revenue service especially was deranged, and widespread demoralization threatened that branch of the public service. At that time nearly all civil officers of the government held at the pleasure of the President; some by the express provision of law; others under this general practice of the government.

The President, for political reasons during the then last recess, created vacancies by removal, and filled them by temporary appointments. It was to check this evil that Congress undertook to regulate the tenure of civil offices, and to protect officers in the discharge of their duties. The bill originated in the Senate, and, as introduced, excepted from its operation the heads of departments. The bill was referred to a committee, and as reported, the first section was as follows:

That every person (excepting the Secretaries of State, of the Treasury, of War, of the Navy, of the Interior, the Postmaster General, and the Attorney General) holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall 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.

On the 10th of January, 1867, a motion was made to strike out the exception of the heads of departments, and was discussed at length. The exception did not rest upon any want of power in Congress to extend the operation of the bill to the heads of departments, but upon the necessity of giving the President control over these officers in order to secure unity and efficiency to his execu

tive authority. Nearly all the duties of heads of departments are by law required to be performed "as the President of the United States shall from time to time direct." They are rarely prescribed by law. This is especially so as to the Secretary of War, who issues all orders "by command of the Presi dent," and by virtue of his office is invested by law with less power than an accounting officer. His duty prescribed by the Constitution is to give his opinion in writing when called for by the President. His prescribed legal duty is to make requisitions upon the Secretary of the Treasury for the service of the army. All his other duties rest upon the discretion, order, and command of the President. As the President is responsible for the acts of heads of departments, as they exercise a part of his executive authority, as their duties are not defined by law, as is the case with most civil officers, it was deemed unwise to take from the Presidential office the power to remove such heads of departments as did not possess his confidence. After debate the motion to strike out the excep tion was lost without a division. At a subsequent stage of the bill the motion was renewed and was lost by the decisive vote of 13 yeas and 27 nays, and the Lill was then passed.

In the House of Representatives the motion to strike out the exception was made and lost, but was subsequently reconsidered, and the motion was carried, and with this amendment the bill passed the House.

The question again came before the Senate upon a motion to concur with the House in striking out the exception of the heads of departments, and was fully debated, and again the Senate refused to concur with this amendment by a vote of 17 yeas to 28 nays. In this condition the disagreement between the two houses came before a committee of conference, where it was the bounden duty of the conferees to maintain as far as possible the view taken by their respective houses. The usual course in such a case, where the disagreement does not extend to the whole of the bill, or to the principle upon which it is founded, is to report an agreement upon so much as has been concurred in by both houses, thus limiting the change in existing law to those provisions which meet the concurrence of both houses; therefore, the Senate conferees might properly have declined to extend the change of the law beyond the vote of the Senate, and certainly would not have been justified in agreeing to a proposition thrice defeated by the vote of the Senate. The difference between the two houses was confined to the sole question whether that bill should regulate the tenure of office of the heads of departments. The Senate left them subject to removal at the pleasure of the President. The House secured their tenure subject to removal only at the pleasure of the Senate. After a long conference, the act as it now stands was reported. The first section is as follows:

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 shall hereafter be appointed to 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, xcept as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of theavy, 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 ay have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

What is a fair and legal construction of this section? First. That the tenure o civil offices generally should be left as in the original bill, but a special provision should be made for the tenure of heads of departments. Second. That the President appointing a head of a department should not, during his term, without the consent of the Senate, remove him. Third. That after thirty days. from the expiration of the term of the President who appointed a head of a department, the office of the latter would expire by limitation. To this extent, and to this extent alone, did the Senate conferees agree to change the existing law. The general clause prohibiting removals of civil officers is confined to