E 666 
 .P31 
 
 Copy 1 
 
 OFii^ioisr 
 
 HON. J. W. PATTERSON, OF NEW HAMPSHIRE, 
 
 IN THE CASE OF THE 
 
 IMPEACHMENT OF THE PRESIDENT. 
 
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opiisrioisr. 
 
 We have been brought to a uew illustration and test of our institutions. The 
 responsibility of the Chief Magistrate to the people and their power to remove 
 him from his place, if faithless and treacherous to his high trusts, are on trial 
 in the Senate. If before civil order is restored and the animosities of war 
 allayed the temper of forty millions of people shall be self-controlled ; if the 
 currents of business are iminterrupted and society discharges its ordinary func- 
 tions without disorder, as the case passes to its final issue of conviction or acquit- 
 tal, it will not only prove the capacity of the people for self-government but 
 will reassure the strength and stability of the republic. It will be a triumph of 
 popular institutions which must unsettle the foundations of arbitrary power and 
 hasten the establishment of free governments. 
 
 The first of the articles exhibited by the House of Representatives against 
 the President of the United States charges a violation of the Constitution of the 
 United States and of an act regulating the tenure of certain civil oflices, passed 
 March 2, 1867, in the issiiance of "an order, in writing, for the removal of 
 Edwin M. Stanton from the office of Secretary for the Department of War." 
 
 It is alleged that this was done contrary to the provisions of the Constitution 
 and with the intent to violate the act above named, and was, therefore, a high 
 misdemeanor, for which he should be removed from oflice. 
 
 First, was it a violation of the Constitution 1 
 
 An unlimited power of removal from office cannot, I think, belong to the 
 President by force of the Constitution. There certainly is no word in that 
 instrument which confers any such authority directly. It says " the executive 
 power shall be vested in a President of the United States of America," but 
 that power is limited by the letter of the Constitution and by direct grants of 
 power to other departments of the government. If the Executive possesses the 
 right of removal in the case of officers appointed by the co-ordinate action of 
 himself and the Senate it must be by implication. 
 
 The Constitutution says the President " shall nominate, and, by and with 
 the advice and consent of the Senate, appoint," &c. Now, the right to remove 
 cannot be drawn from the right to nominate, and, if it comes from the right to 
 appoint, then it exists conjointly in the President and Senate. 
 
 There is an objection to this doctrine, however, more fundamental. We can- 
 not by inference lodge in the President a power which would enable him to 
 destroy another power vested expressly in the legislative branch of the gov- 
 ernment. The Constitution co-ordinates the Senate with the President in the 
 appointment of the higher officials. Hamilton, in speaking of this, says : 
 
 It would be an excellent check upon a spirit of favoritism in the President, and would tend 
 {Tieatly to prevent the appointment of unfit characters from State prejudice, from family con- 
 ■ nection, from personal attachment, or from a view to popularity. In addition to this, it 
 would be an efficacious source of stability in the administration. 
 
 But it will be readily seen that if the President has the right to remove and 
 make ad interim appointments at pleasure, the co-ordinate function of the Senate 
 in appointments may become a nullity and the purpose of the Constitution be 
 defeated. It destroys at one blow this great safeguard against usurpation and 
 maladministration in the Executive. 
 
 Without delaying to discuss this subject further, I simply »ay that, to my 
 mind, a natural interpretation of the Constitution would give the appointing and 
 removing power to the same parties. 
 
But the acts of 1789 and 1795 gave a legislative construction adverse to this 
 view, and, whether these acts are repealed or not, if it can be shown that the 
 President violated no laio in the removal of Mr. Stanton, it would be clearly- 
 unjust to impeach him for having conformed to a legislative construction of the 
 Constitution, unquestioned for fifty years, against the views and wishes of the 
 majority of Congress, So heavy a judgment should not fall upon the Chief 
 Magistrate for having followed an exposition of the fudamental law, authorized 
 by solemn enactment and supported by some of the ablest among the earliest 
 statesmen of the republic. 
 
 The second allegation in the article is a violation of Imv in the removal of 
 Mr. Stanton. 
 
 The respondent urges a threefold defence against this charge : 
 
 1st. That the non-execution of the act of March 2, 1867, " regulating the 
 tenure of certain civil offices," was uot a breach of executive trusts, as the law 
 was unconstitutional and void. 
 
 2d. That a denial of the validity of the act and an intentional disregard of 
 its provisions in order to bring the statute into court and test its constitutionality 
 is not an impeachable offence. 
 
 3d. That the language of the statute does not include Mr. Stanton, and hence 
 his removal was no violation of lav/. 
 
 Whether the President had or had not a constitutional right to remove at 
 pleasure officers confirmed by the Senate was the theme of the great debate in 
 1789 upon the establishment of the State Department. It was purely a ques- 
 tion of interpretation, and was argued upon both sides by lawyers of unsur- 
 passed ability. Even the great statesmen who had been master spirits in the 
 constitutional convention, and whose genius had passed largely into the frame- 
 work of the government, eutered the lists and battled earnestly on either side. 
 When the Constitution was before the State conventions for adoption the Feder- 
 alist expressly denied this right to the Executive, but the Congress of 1789 
 reversed that interpretation which had received the popular approval by a close 
 vote of 34 to 20 in the House and by the casting vote of the Vice-President in 
 the Senate. It is believed that the character of Washington, then Chief Magis- 
 trate, largely influenced the result, and statesmen as patriotic and enlightened 
 as any who took part in the deliberations of the first Congress have since dep- 
 recated a construction which they believe a hazatdous and unwarranted change 
 of the Constitution. 
 
 In 1835, a committee of Congress, composed of such men as Calhoun, Web- 
 ster, and Benton, reported a bill designed to limit the abuse of executive patron- 
 age, and requiring the President in all cases of removal to state the reasons 
 thereof. In the debate, Mr. Clay spoke as follows : 
 
 It is legislative authority which creates the office, defines its duties, and may prescribe its 
 duration. I speak, of course, of offices not croated by the Constitution, but the law. The 
 office coming into exi.stcnce by tlic will of Congress, the sunie will niiiy provide how and in 
 what manner the office and officer shall ceast; to exist. It may direct the conditions on which 
 he shall hold the office, and when and how he shall be dismissed. 
 
 It would be unre.isonable to contend that, altliough Congress, in pursuance of the public 
 good, brings the office and the ofliccr into being, and assigns their purposes, yet the President 
 has a control over tlio ofiicer whicli Congress cannot reacJi and regulate. * ■< • • The 
 jjrecedent of ITr^l) was established in tlie House of lii'jiresentatives against the opinion of a 
 large and able minority, and in the Senate by the casting vote of the Vice-President, John 
 Adams. It is impossible to read tlie ijeljate wliicii itoccasioned without being imjiresscd with 
 the conviction that tlie just coniitienco rejiosed in tlio Father of iiis Country, then at the 
 head of the government, had great, if uot decisive iufiueuce in establishing it. It has never, 
 prior to tlic commencement oi' the jiji'sent administration, been stibmitted to the process ot 
 review. » • • • No one can carefully examine the di'bate in tile House of Keprescnta- 
 tives in J78'J without being struck with tlio suj)eritirity of the argument on the side of the 
 minority, and the unsatisfactory nature of that of the majority. 
 
The language of Mr. Webster was not less explicit or empliatic : 
 
 I think, then, sir, that the power of appointment uaturfilly and necessarily inchides the 
 power of removal, where no limitation is expressed, nor any tenure but that at will declared. 
 The power of appointment beinc^ conferred on the President and Senate, I think the power 
 of removal went alonjr with it. and should have been regarded as a part of it and exercised 
 by the same hands. 1 think the legislature possesses the power of regulating the condition, 
 duration, qualitication, and tenure of office in all cases where the Constitution has made no 
 express provision on the subject. I am, therefore, of opinion that it is competent for Congress 
 to decide by law, as one qualiticatiou of the tenure of office, that the incumbent shall remain 
 in place till the President shall remove him, for reasons to be stated to the Senate. And I 
 am of opinion that this qualification, mild and gentle as it is, will have some effect in arrest- 
 ing the evils which beset the progress of the government and seriously threaten its future 
 prosperity. *»*»*#* 
 
 Atter considering the question again and again within the last six years, I am willing to 
 say that, in my deliberate judgment, the original decision was wrong. I cannot but think 
 that those who denied the power of 1789 had the best of the argument. It appears to me, 
 after thorough and repeated and conscientious examination, that an erroneous interpretation 
 was given to the Constitution in this respect by the decision of the tirst Congress. * • * 
 
 I have the clearest conviction that they (the convention) looked to no other mode of dis- 
 placing an officer than by impeachment or the regular appointment of another person to the 
 same place. 
 
 I believe it to be within the just power of Congress to reverse the decision of 1789, and I 
 mean to hold myself at liberty to act hereafter upon that question as the safety of the gov- 
 ernment and of the Constitution may require. 
 
 Mr. Calhoun and Mr. Ewing Avere equally positive in their advocacy of the 
 bill, and Marshall, Kent, and Story seem to have entert.ained similar views in 
 respect to the original intent of the Constitution. 
 
 But there has been a conflict of legislative constructions as well as of indi- 
 vidual opinions upon this subject. Subsequent Congresses have claimed and 
 exercised, without the obstruction of an executive veto, tlie power to regulate 
 the tenure of office, both civil and military. 
 
 A law of February 25, 1S63, provides that the Comptroller of the Currency 
 " shall hold his office for the term of five years unless sooner removed by the 
 President bi/ and loith the advice and consent of the Senate.'" 
 
 By section five of an act of July 13, 1866, it is provided thai — 
 
 No officer in the military or naval service shall, in time of peace, be dismissed from service 
 except upon and in pursuance of the sentence of a court-martial, to that etiect or in commuta- 
 tion thereof. 
 
 These are late acts, but they are only instances of other similar acts scattered 
 through our statutes, whose validity has never been questioned. There is, 
 therefore, no decision of the Supreme Court or settled precedent of legislation 
 v/hicli can bar the right of Congress to regulate by law both appointments to 
 and removals from office. Never until now, so far as I know, has the right 
 been questioned. Whatever difi'erences of opinion legislators may have enter- 
 tained in respect to the original grant of power, all have acquiesced in the exer- 
 cise of legislative authority over the tenure of office. 
 
 Hence the claim of the President of a judicial right to settle ex cathedra 
 the constitutionality of a law upon this subject is inadmissible and subversive 
 of the powers and independence of a co-ordinate branch of the government. In 
 a clear case of a legislative usurpation of his constitutional prerogatives, such a.9 
 Avould occur in an effort to destroy his veto or pardoning power, he might be 
 justified in treating the act as a nullity, but not when Congress moves in the 
 path of authoritative precedents, and where, at most, only a doubt can be raised 
 against its original right of jurisdiction. 
 
 At an earlier period I apprehend such a claim would not have been advanced. 
 Civil war naturally tends to concentrate power in the chief who administers it. 
 Forces and resources must be at his disposal. Defeat waits upon the com- 
 mander who is hampered by the forms and delays of law. His authority is 
 nothing if not supreme. The laws of war are swift and absolute, and can recog- 
 
6 
 
 iiize no personal riglits, no claims of Magna Charta. Active warfare necessa- 
 rily encroaches upon tbedomtiin of legislation, and familiarizes the Executive 
 with a use of authority hazardous in a time of peace. 
 
 Power once possessed is soon felt to be aright, and is yielded with reluctance. 
 Our experience has added another example to the long record of history. The 
 President's defence denies the supremacy of law, aud is more dangerous to the 
 government than the alleged crime which has brought him to the bar of the 
 Senate. If he can determine the validity of law, the Supreme Court is an 
 empty mockery. No act can pass his veto, and all legislation may be subverted 
 at pleasure. The right to substitute the judgment of the ruler for the judg- 
 ment of the people, and to override their laws by his will, is absolutism. If 
 the plea is good, it is a valid defence for unlimited usurpation. 
 
 The plea of the President that be removed Mr. Stanton for the purpose of 
 securing a decision of the court upon the constitutionality of the law is equally 
 untenable as a ground of defence. It is inconsistent with the answer which he 
 made by his counsel, that he efiected the removal in the exercise of an execu- 
 tive power of which Congress could not deprive hira, " because satisfied that 
 be could not allow the said Stanton to continue to hold the oflSce of Secretary 
 f f the Department of War without hazard of the public interests." It is irre- 
 concilable with the further answer that, " in his capacity of President of the 
 L'liited States," be " did form the opinion that the case of the said Stanton and 
 liis tenure of oftice were not affected by the first section of the last-named act," 
 referring thereby to the tenure-of-office act. 
 
 But, passing over the contradictory nature of this defence, we submit that the 
 evidence shows an anxious and persistent effort to get possession of the War 
 Office, and not a purpose to have the law adjudicated. If to test the law had 
 been his desire, he should have sued out a writ of '■'quo warrajiio'' on the refusal 
 of Stanton to obey his order of removal. Instead of that, he not only endeav- 
 ored to keep him out of office by an unworthy trick when we had annulled his 
 suspension, but issued a letter of absolute removal in the face of Congress after 
 it had rejected his judicial opinion of the constitutionality of the law, and had 
 passed it by a two-thirds vote over his veto. After it had reaffirmed the validity 
 of its action and the invalidity of his on this very subject, and assuming that 
 the removal had been effected, he issued a letter of authority to till the vacancy. 
 'To crown the effrontery he nominates General Schofield to the vacant Secretary- 
 ^j^bip, while urging upon the ?^enate his acquittal on the ground that the removal 
 was not effected, but only attempted. Thus duplicity is made the proof of inno- 
 c(Mice. Having put the case into a condition in wliicb he could not sue out a 
 writ of quo iranunto, I deny that he can honestly plead a desire to test the law. 
 He knew full well if Stanton was not in the law be could not test it by his 
 removal. 
 
 This defence is clearly an afterthought. Having recognized the validity of 
 the law by conforming all commissions to its provisions; having suspended I\Ir. 
 Stanton and appointed General Grant under it; having notified the Secretary of 
 the Treasury of the change, to wit, as follows: 
 
 Sir: In compliance witli tlic rc(iuirpnicnts of the net ciititlrd "An act torcpnlatc tlio tonm'c 
 of certuin civil otViccs,"' you arc i)cn'hy notilicJ tliat on tlic I'Jtii instant Hon. K<hvin M. 
 Stantun \va> husiicndcd from his ollicc as .Secretary of War, and G:'ucnil V. S. (irant antlior- 
 izcd und empowered to act as .Secretary of ^\'ar «</ iiilrriin — 
 
 and having afterward transmitted a message to the Senate giving tlu- reasons for 
 the suspension, as nnjuired by the act, he cannot, without criminality, under the 
 pretext of seeking a judicial decision, set aside or trample upon the law at the 
 point where it bailled his cherished political policy and curbed a career which 
 the law-makers believed dangerous to the peace and liberties of the country. If 
 regard for the Constitution, and not a desire to get control of the army, had been 
 his purpoflc, why did lie not lest the law in tin- first instance when calh'd upon 
 
to execute it, and when liis motive would have beea simple and unquestioned ? 
 Facts show that it was not the nature but the effect of the law which troubled 
 the President. 
 
 The enactment was designed to circumscribe and limit his power, lest he should 
 abuse it to thb injury of the country. It was effective ; and when it arrested the 
 execution of his policy, regardless alike of his oath and the wishes of the nation, 
 he defiantly violated the law to remove the man who was a trammel upon his 
 will. 
 
 The evidence demonstrates a purpose to get possession of the Department of 
 War, and disproves the pretence that he was seeking a judicial decision upon 
 the constitutionality of the law. 
 
 Finally, was Mr. Stanton's removal a violation of the act entitled "An act 
 regulating the tenure of certain civil offices?" 
 
 The purpose of the law was to hold in office men whom the policy of Mr. 
 Johnson threatened to remove. It is both claimed and denied that the Secretary 
 of War who held a commission under President Lincoln is protected by the law. 
 The true construction must be drawn from the letter of the statute itself, and not 
 from any conflicting opinions expressed in debate at the time of its passage. 
 
 The first section of the act reads 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 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. 
 
 It will be observed that the body of the section includes all persons who have 
 been or who shall be appointed to civil office by and with the advice and con- 
 sent of the Senate, " except as herein otherwise provided." 
 
 This last clause which I have quoted was in the bill before the committee of 
 conference, who added the proviso, was appointed, and undoubtedly refers to 
 oflScers mentioned in the fourth section whose term is limited by law. The Sec- 
 retaries were not of this number, and the effect of the proviso which was added 
 by the conferees was simply to limit their time to the term of the President 
 under whom they served and one month thereafter. 
 
 The meaning of the section clearly is that every civil officer who has been con- 
 firmed by the Senate shall hold his ofiice until the Senate shall confirm a suc- 
 cessor, but provides that such officers as hold a term limited by law shall lose 
 their office by the expiration of their term without the action of the Senate. 
 The only effect of the proviso is to bring the heads of departments into this 
 last class of officers whose terms are limited by law. The intent and effect of 
 the law is to take the removal of every officer confirmed by the Senate out of 
 the pleasure of the President ; and it is a perversion of language to say that the 
 proviso places the tenure of the Secretary of War, or of any other Secretary, at 
 the option of the President. They are all removable by the confirmation of a 
 successor or by the expiration of their term. 
 
 It has been said that the proviso brings the office of Secretary of War out of 
 the body of the section into itself, but that the clause which provides that the 
 Secretaries " shall hold their offices respectively for and during the term of the 
 President by whom they may have been appointed, and for one month thereaf- 
 ter," excludes Mr. Stanton from it because he was not appointed by Mr. John- 
 sou. 
 
 The office could not be taken out of the body of the section unless it was 
 first in it, and if there, the Secretary was there also. If, now, the office of Sec- 
 retary of War is brought into the proviso, and Mr. Stanton excluded, he isleft in 
 
8 
 
 the section and covered by its provision^?. If not there, to what limbo have 
 the gods assigned him ? 
 
 The conception of a Secretary of War without an otHce is worthy of a law- 
 yer without a brief. The argument is a pure creation, and a miserable fallacy 
 at that. The ]anguaj2;-e of the section is in relation to persons, not offices. It 
 savs, " every person holding any civil office shall be entitled to hold," &c.; 
 " the Secretaries, &;c., shall hold their offices," &c. The construction of the 
 section is simple and unmistakable. There are certain officers referred to in 
 the fourth section whose terms are limited by law, and the proviso adds the 
 heads of departments to this number, but the terms of the law allow no officer 
 to be removed who has been appointed by and with the advice and consent of 
 the Senate, except by the appointment of a successor in the same way. 
 
 The language of the proviso itself is, that the Secretaries are " subject to 
 removal by and with tbe advice and consent of the Senate." If, therefore, Mr. 
 Stanton is not in the proviso, lie is in the body of the section, and the law was 
 violated by his removal. I will not stay to inquire in whose term he was hold- 
 ing, for the argument is perfect without it. 
 
 This is not all. The President violated the second as well as the first sec- 
 tion of the law. It reads as follows : 
 
 That when any officer appointed as afoiciiaic!, cxcoptiug judges of the United States 
 courts, shall, during a recess of tlie Senate, be showu, by evidence satisfactory to the Presi- 
 dent, to be guilty (if ■misconduct in office, or crime, or for any reason shall become incapable or 
 legally disqualified to perform its ditties, in such case, and in no other, the President may sus- 
 pend such officer, &c. 
 
 If, now, the President can suspend an officer during the recess only, and that, 
 for the reasons specified in the law and no other, can he remove him outright 
 during the session of the Senate, and when he is free from all the legal dis- 
 qualifications enumerated in the act ? 
 
 The act further provides, in respect to a suspension, that — 
 
 If the Senate shall concur in such suspension, and advise and consent to the removal of 
 such officer, they shall so certify to the President, who may thercufuni remove such officer. 
 But if the Senate shall refuse to concur in such suspension, .such otiicer so suspended shall 
 forthwith resume the functions of his office, &c. 
 
 The Senate refused to concur in the suspension of Mr. Stanton, refused to 
 advise and consent to his removal, but the President removed him in defiance of 
 the letter of the act and of the will of the Senate. No amount of genius for 
 legal sophistries can torture that act of the President into anything less than a 
 wilful violation of law. This simple statement of the case, without argument, 
 i» sufficient to command the approval of every mind. 
 
 Counsel must have forgotten that the Senate, acting under the solemnity of 
 an oath, had repeatedly decided that the law applied to Mr. Stanton. On the 
 12th of December the Senate, remembering that the " tenure-of-oftlce act" was 
 passed expressly to protect officers whose retention was thought indispensable 
 to the public service against an abuse of executive power, and moved by the 
 eloquent and powerful appeal of the senator from Maine, refused their assent to 
 the removal of Mr. Stanton, which they had no right to do, or even act upon at 
 all, unless he was covered by the law of March 2, 1S67. 
 
 Again, on the 21st of February, when the President, failing in his attempt to 
 prevent the return of tiie Secretary by the use of General Grant, informed this 
 body of his absolute dismissal, it was resolved by the Senate — 
 
 That under the Con.stitution iiiul laws of the United States the President has no power to 
 reniovf tlif Secretary of War and to designate any other officer to perform the duties of that 
 office ad inltrim. 
 
 With Buch action upon our records we have a right to assume that argument 
 upon this is foreclosed, and that senators who took part with the majority in 
 those transactiotiH will sustain tin- construction which they helped to establish, 
 and upon which tlif coiubut of the Secretary is based. 
 
We are brong-lit next to consider tlie charges as stated in the second and third 
 articles. It is nlh-ged that the appointment of Lorenzo Thomas as Secretary of 
 War " ad inlerhii " was a high misdemeanor, being made without law, and in 
 violation of both law and the Constitution. The provision of the Constitution 
 is, that — 
 
 The President shall have power to fill up all vacancies tliat may hiifipm [not such as he 
 may make] during the recess of the Senate, by granting' conimissious which shall expire at 
 the end of their next session. 
 
 This certainly does not confer the right to make " ad interiTn" appointments 
 during the session of the Senate, but, by necessary inference, denies it, by 
 expressly granting the power for the recess only. Hence, to fill a vacancy in 
 this way, while the Senate is in session and ready to previde for any emergency, 
 is, in the absence of positive law authorizing it, a clear violation of the Consti- 
 tution. The guilt was in this case enhanced by an attempt to fill an office which 
 the respondent himself claims has never been vacated. 
 
 But the President is equally unfortunate in his appeal to laio. The act of 
 1789 makes no provision for " ad interim'' appointments. That of May 2, 1792, 
 authorizes temporary appointments in case of death, absence, or sickness, but 
 not for vacancies created by removal. That of February 13, 1795, allows the 
 President to appoint for six months, " in case of vacancy, whereby the Secre- 
 taries or any otficer in any of the departments cannot perform the duties of Ms 
 office.'" 
 
 The construction of this act is somewhat obscure and doubtful. It applies 
 to such vacancies of office as are occasioned by the inability of the ofticer to 
 " perform the duties of his office." An officer removed cannot perform the 
 duties of his office, it is true, but the natural implication of the language runs 
 pari passu with that of 1792, confining it to such vacancies as occur from death, 
 absence, or sickness. But if we give it the broadest application, and cover all 
 vacancies, the limitation of six months placed upon the temporary appointments 
 which it authorizes is designed clearly to cover the interim between 1 he ses- 
 sions of Congress, and recognizes the hitherto unbroken practice of the Execu- 
 tive to create and fill vacancies only during the recess of the Senate. I ^jonclude, 
 therefore, it was not designed to authorize by this act an appointment like that 
 of General Thomas. 
 
 The act of February ^0, 1863, fails equally to provide for this case. 
 
 But even if these statutes by a proper construction covered the action of the 
 President, he cannot use them, for they have been swept away by the tenure- 
 of-office act, and he is remitted to its provisions alone, which explicitly pro- 
 hibited any such a|)pointment. 
 
 If the 1st and 2d sections take from him, as I have argued, the right to 
 remove Stanton, then there was no vacancy, and the appointment of Thomas 
 was made " contrary to the provisions of tiiis act," and was by the 6th section 
 of the same a high misdemeanor. 
 
 It has been lu-ged that the last clause of the 3d section empowers the Presi- 
 dent to make such an appointment, but an examination of the section shows 
 this to be a perversion. It simply provides that in case the Senate shall fail to 
 fill a vacancy which has occurred by death or resignation during the recess of 
 the same, such officers as may by law exercise such powers and d,uties shall exer- 
 cise all the powers and duties belonging to such office so vacant, but that "such 
 office shall remain in abeyance without any salary, fees, or emoluments attached 
 thereto, until the same shall be tilled by appointment thereto by and with the 
 advice and consent of the Senate." 
 
 General Thomas was not so appointed. The law cannot possibly be sttetched 
 to cover and justify his case. 
 
 Equally fallacious is the interpretation which has been given to the eighth 
 section. This simply makes it the duty of the President to notify the Secretary 
 
 2 P 
 
10 
 
 of the Treasury whenever he shall have " designated, authorized, or employed 
 any person to perform the duties of any office" temporarily vacated, as desig- 
 nated in the tliird article. 
 
 This is the whole extent of its meaning, and it cannot be so tortured as to 
 authorize on "ad interim''' appointment, made during the session of the Senate. 
 
 I conclude, therefore, that the President, having violated the act of March 2, 
 1867, as alleged in the first, second, and third articles, is guilty of a high mis- 
 demeanor. 
 
 Of the fourth, sixth, seventh, and ninth articles, I need not speak, as the trial 
 failed entirely, to my apprehension, in establishing the allegations therein set 
 forth by any substantial proof. No satisfactory evidence was presented to my 
 mind of a conspiracy, as' alleged in either of the articles. In this 1 think the 
 House entirely failed to make good their charges. 
 
 The fifth article charges that the President conspired with Lorenzo Thomas 
 and others to " prevent and hinder the execution of an act entitled ' An act 
 regulating the tenure of certain civil offices,' and in pursuance of said con- 
 spiracy did unlawfully attempt to prevent Edwin M. Stanton" from holding 
 the office of Secretary of War. That there was an understanding between 
 the President and Thomas that the latter was to be substituted for Stanton in 
 the office of Secretary' of War, in disregard of the act of March 2, 1S67, is 
 clear, but that there was any concert to use force to bring it about does not 
 appear from the evidence. 
 
 The eighth article charges upon Andrew Johnson a high misdemeanor, in that 
 he issued a letter of authority to Lorenzo Thomas, transferring to him the office 
 of Secretary for the Department of War, in violation of law, when there was no 
 vacancy in said office, and when the Senate was in session, with intent unlaw- 
 fully to control the disbursements of the moneys appropriated for the military 
 service and for the Department of War. 
 
 I have already given my opinion upon the issuance of the letter to Thomas 
 in what I have said in respect to the second and third articles. That a control 
 of the money appropriated for the military service and the Department of War 
 was a jjriiicipal motive for securing tlie j)lace of Mr. Stanton is self-evident ; for 
 without it tlie office could not lie administered, and would be a vain and useless 
 shadow- of power. I do not see that this article adds anything new ; for the 
 gravamen of the charge is involved in the third article. The final judgment 
 upon this must be the same as upon that. 
 
 The facts alleged in the tenth article arc known and read of all men, and are 
 not denied by the respondent. That the speeches referred to in this article 
 were " slanderous harangues," showing not only a want of culture, but the entire 
 absence of good sense, good taste, or good temper, nobody can deny. But in 
 view of the liberty of speech which our laws authorize, in view of the culpable 
 license of speech which is practiced and allowed in other branches of the 
 government, I doubt if we can at present make low and scurrilous speeches a 
 ground of impeachment. I say this in sorrow, and not in any spirit of pallia- 
 tion ; for the speeches referred to in tlie charges were infamous and blasphemous, 
 and couhl not have been uttered by any man worthy to hold the exalted posi- 
 tion of Chii-f Magistrate of an intcHgcnt and virtudus people. Personal decency 
 .■should 1)0 deemed essential lo high official responsibility in this republic, but it 
 must be secured by a public sentiment which shall exact virtue rather than 
 availability in those; whom it advances to the great trusts of society. When we 
 reflect Imw essential to national welfan; and human progress is that liberty of 
 si)i;(!ch which we have iidieritcd, and how readily a reslriclion upon its abuse 
 may turn to an abnst; upon its restriction, we hesitate to inflict a merited penalty 
 upon this jiroMiinent ofl'ender. We deem it safer to — 
 
 licar tliDsc ills wi- liiivc 
 
 'I'liail llv In (itlllilS tllllt V.l' Uiuiw not of. 
 
11 
 
 There are four distinct allegations in the eleventh article. The first relates 
 to the President's misrepresentations of Congress in public speech, and has 
 already been reviewed in considering the tenth article. 
 
 The second charges a violation of " an act regulating the tenure of certain 
 civil officv^s," by unlawfully devising and contriving, and attempting to devise 
 and contrive, means to prevent ^fr. Stanton from resuming his office of Secre- 
 tary of War after the Senate had refused to concur in his suspension. This is 
 a chai-ge not mentioned in any preceding article and its proof is unec|uivocal and 
 satisfactory. 
 
 The attempt was made through General Grant, and the J^i-esident's letter of 
 reproof to that distinguished citizen for defeating his wicked purpose by refusing 
 to participate vntli him in a premeditated breach of law and contempt of the 
 Senate, is the impregnable demonstration of ihe allegation. The following is 
 the language of his letter : 
 
 You bad found in our first conference "that the President was desirous of keeping' Mr. 
 Stanton out of office, whether sustained in the suspension or not." Yen knew what reasons 
 had induced the President to ask from you a promise; you also knew tiuit in case your 
 views of duty did not accord with his own convictions it was his purpose to fill your place 
 by another appointment. Even ignoring' the existence of a positive understanding- between 
 us, these conclusions were plainly deducible from oiu' various conversations. It is certain, 
 however, that even under these circumstances you did not offer to return the place to my 
 possession, but, according to your own statement, placed yourself in a position where, could 
 I have anticipated your action, I would have been compelled to ask of you, as I was com- 
 pelled to ask of your predecessor in the War Departmeot, a letter of resignation, or else to 
 resort to the more disagreeable expedient of suspending you by a successor. 
 
 The third and fourth allegations of this article do not seem to have received 
 that attention which their importance would justify. The evidence upon the 
 records by which they are supported is very slight. I have been the more 
 surprised at this inasmuch as the last sets forth that the President attempted to 
 prevent the execution of the act entitled "An act to pi'ovide for the more effi- 
 cient government of the rebel States." This I have deemed i\\Q 2^>'^^num mobile 
 which has impelled the entire policy of the Executive. 
 
 This has been the motive of all our exceptional legislation ; this has prolonged 
 and multiplied our sessions ; this has distracted business, and protracted the 
 unrest of society, and this will be the crowning infamy of an administration 
 inaugurated by assassination. All these wilful violations of law have drawn 
 their inspiration from this fell intent. If they had been only technical and 
 inadvertent lapses, or had resulted from misapprehension, they might be par- 
 doned, but being specimens from a flagrant catalogue of persistent law-breaking, 
 public safety demands a resort to constitutional remedies. 
 
 There may be wise and patriotic men who fear lest conviction should impress 
 a habit of instability upon our institutions and unsettle the foundations of 
 society. No statesman should be censured for a prudent forecast, but he should 
 not hesitate to use the means which the experience of ages has shown to be 
 essential safeguards of popular rights. The English ministry retire with every 
 defeat, and these frequent changes of administration strengthen rather than 
 weaken the government. A people careless and not over-jealous of their rights 
 are in danger of overthrow. History teaches ihat great wars enhance the pow- 
 ers of the Executive at the expense of popular rights, and that powers once 
 exercised are likely to be held as an inalienable prerogative. We are no excep- 
 tion to the rule. With us, the temptation of the Chief jVIagisti'ate to overstep 
 his authority is even greater than in goveriunents where executive power is 
 less limited. It is difficult for a ruler who has used for years without wrong 
 the iirdimited powers of v/ar to restrict himself at once, on the return of peace, 
 to the narrow limits then essential to the security of popular rights. 
 
 Abraham Lincoln in a few instances transcended the ordinary exercise of 
 executive authority, and we legalized it as a military necessity. Four years of 
 laborious, patriotic, suffering life, devoted to a rescue of the liberties and integ- 
 
12 
 
 rity of tlie republic, were the pledges lie gave 
 his power for tlie gratiiication of either reveiig( 
 has uo such excuse and can give no such secur 
 tutional limits and sets aside law. 
 
 There have been no "public considerations of a high character" to justify 
 his high-handed usurpation of power. There was nothing in the personal char- 
 acter and nothing in the official conduct of this distinguished minister of war, 
 who, more than the great French minister, may be 'said to have "organized 
 victory," which could give the s!;adow of a pretext for his suspension or remo- 
 val. His ofi'ence was that at the expense of personal comfort he fulfilled the 
 purpose of Congress and checked, if he did not baffle, the eifortof the Execiitive 
 to arrest the legal and peaceful reorganization of the South. His obedience to 
 the spirit and letter of our laws "constrained" the President to "cause him to 
 surrender the office." 
 
 If the President is convicted he suffers for a violation of law : if acquitted, 
 Mr. Stanton suffers for obedience to the law. Back of the acts for which the 
 former is on trial lie the three years of malignant obstruction of law and public 
 order pouring a wicked intent into the allegations of this indictment. Back of 
 this attempted removal of Mr. Stanton lies the splendid record of tlie great 
 Secretary, which will hereafter thread your history like a path of gold. Who^ 
 shall fall in the hnal issue, he who obeys or he who defies your legislation 1 
 
 If conviction may impress instability upon our institutions, acquittal may 
 destroy the original adjustment and balance of their powers and hasten their 
 overthrow. The lessons of history warn us rather against the indulgence than 
 the arrest of arbitrary power. 
 
 When power flows back into the hands of the people it only returns to its 
 original and rightful source ; but when it passes up into the hands of a usurper, 
 the reign of despotism is inaugurated. History has been a perpetual struggle 
 between popular rights and personal ambition, and experience shows that we 
 do not utter empty words when we say thai, "vigilance is the price of liberty." 
 
 As a member of the House of liepresentatives, I voted under tlie obligations 
 of an oath for the act of March 2, 18G7, with a clear understanding tliat it 
 protected JMr. Stanton as Secretary of War against removal at pleasure by the 
 President ; and now, when he is brought to our bar, to be tried for the consum- 
 mation of that act, I but discharge a solemn duty, from which I cannot escape, 
 when, as a senator, I pronounce Andrew Johnson guilty of a violation of that law. 
 
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