The Portland daily press., 1868-05-16
MIR. FEssENDEN's POSITION.
Wis speech i'm the Secret Session of
the Senate.

Fessenden said--That act did not receive my
vote originally. dld vote 10 overrule the
Presidents veto, because was not then and
am not now convinced of its UNCONSTITUTIONAL
ity. although l doubted it's expediency and
feared that it be prod uctive of more evil than
good. The proper inquiry is whether the
President in removing, or attempting to re-
move Mr.. Stanton from the office of Secretary
of War, violated its provisions, or in other
words whether if the President had legal
right to remove Mr.. Stanton before the pas
sage of that act, as think he clearly had, he
was deprived of that right by the terms of the
act ITSELF Mr.. Fessenden held however, that
as Mr.. Stanton was appointed by President
Lincoln, the case did not come within the
scope of the Tenure-of-Office law. 1t has been /
argued that MIR. johnson has recognized Mr..
Stanton as coming within the first section OF
the act of March 2, 1867, by suspending him
under the provisions of the second section
Even if the President did SO believe, it by no
means follows that he is guilty of INSIDE
meanor in attempting to remove him. If that
view was erroneous, the President is not inn
peached for acting contrary to his belief, but
for violating the Constitution and the laws
and it may be replied that if the President did
entertain that opinion, testimony was offered
to show that his Cabinet entertained differ
emit view. Whatever respect the opinion of
either may be entitled TO, it does not settle the
question of construction. But a sufficient
answer to the argument is, that whether Mr..
Stanton comes within the first section of the
statute or not, the President had clear right
to suspend him, under the second section.-
This section applies to all civil officers, except
Judges of the U. S. Courts, appointed as
aforesaid-that is, by and with the advice and
consent of the Senate-and Mr.. Stanton was
was such an officer, whatever might have been
his tenure of office. l conclude, them that as
Mr.. Stanton was appointed to hold during the
pleasure of the President for the time being
and as his tenure was not affected by the act
of March I'd, 1887, the President had right to
remove him from Office ON the Dist of Febru-
ary, and consequently cannot be held guilty
under the first article
Even, however, if were not satisfied of the
construction given herein of the act eff March
2, 1867, l should still hesitate to convict the
| President of high misdemeanor for what was
| done by him on the 21st of February. The
| least that could be said of the application of
| the first section of that act to the case of Mr..
| Stanton is that its application is doubtful Ii,
| in fact, Mr.. Stanton comes within it, the act
| done by the President did not remove him,
| and he is still Secretary of War; 1t was at
most an attempt ON the part OF the President
which he might well believe that he had
right to make The evidence utterly fails to
show any design on the part of the President
to effect his pun pose by force of violence. 1t
was but the simple issuance of written Or.
der, which failed of its intended effort. To
depose the constitutional chief magistrate of
great nation elected by thepeople, on grounds
SO slight would in my Judgment be an abuse
Ol bu6 pOWtI COuItTreu upon inc senate,
which could not be justified to the country or
the world. To construe such an act as high
crime or misdemeanOr within the meaning of
the Constitution would, when the passions of
the hour have had time to cool, be looked upon
with wonder, if not with derision Worse than
this, it would infict wound upon the very
structure of our government, which time
would fail to cure.
The second article is founded upon the let
ter OF authority addressed by the President to
Gen. Lorenzo Thomas, dated February 21st.
1868. The substantial allegations of the arti-
Gle are, that this letter was issued in viola
ton of the Constitution and contrary to the
provisions of the act regulating the tenure of
certain civil offices, without the advice and
consent of the Senate, that body being then in
| session, and without authority of law,
there being at the time no vacancy in the Of
flee OF the Secretary of War; In the view /
have taken of the first article, there was legal
ly vacancy in the Department of War; Mr.
Stanton having been removed on that same
day, and the letter of authority so states the
fact and is predicated thereon. 1t is we'll
established principle of law, that where two
acts are done at the same time, one of which
in its nature precedes the other, they must by
held as intended to take effect in their natu-
raj order. The question, then, is whether a
vacancy existed which the President had
right to fill by designation of some person
to act temporarily as Secretary dd interim
The answer to this question will depend to a
uPoh an OAdiuludIOu Vi the
May, 1892, of February, 1875 and Of Fe6ir:iafyf
9Th and March 10th, 1868, to show the powers
given to the President in cases of vacancy
and further commended, that whatever power
| the President had by the act of 1895, to ap-
| point any person dd interim in case of remov-
al remains unaffected by the act of 1863 1t
has been argued that the authority vested in
| the President by the act of 1895, is repealed by
| the sixth section of the act of March 2 1867
| which prohibits and Furnishes the making
| signing, countersigning, issuing of any
commission or letter of authority, for or in re-
| spect to any such appointment or appoint
| ments. If the act of 1895 is repealed by this
| section 1T must operate in like manner upon
| the act of 1868. The consequence would be-
| that in no case--neither in recess nor in SEES
sion, neither in case of vacancy, however aris-
| ing, in absence or Sickness would the Presi-
dent have power, even for day, to authorize
| any person TO discharge the duties of any per-
| son or any officer in any of the departments
which are filled by Presidential appointment
All must remain as they are, and all business
| must stop, during a session or recess until
they can be filled by a legal appointment
| This could not have been intended. He con-
tended further that the act of March, 1867,
| expressly recognizes the power of the Presi-
| dent, without the advice and consent of the
| Senate, to designate, authorize or employ per-
| sons to perform the duties of certain offices
| temporarily, thus confirming the authority
conferred by preceding acts. His conclusion
therefore is, that as the President had legal
right to remove Mr.. Stanton Notwithstanding
the act of March 2, 1867, he had the right to
issue the letter of authority to Gen. Thomas
| to discharge the duties of the Department of
| War under and by virtue of the act of 1895
The issuing of the letter of appointment to
Thomas was hot a violation of the Consttu-
| ton or the law, and to hold that such an act
was misdemeanor justifying the removal of
the President is monstrous perversion of
Justice If not violation of the Constitution
itself.
The first two articles thus failing. the third
fourth, NTH, sixth, seventh and eighth must
fail with them
The ninth article is wholly without proof,
and actually disproved by the evidence.
The specifications in the tenth article are
not sufficiently established by proof
The eleventh article was then considered
| and the position taken that there was no in
tentlon on the part of the President to vio-
late the laws as claimed in. its specifications
relative so the claims made by the President
| of power under the constitution to remove
or suspend. Whether such doctrine were cor
rect or not, Mr.. Fessenden held that the Presi-
dent could not be convicted Tor the assertion
OF even an unconstitutional doctrine, if he
has not made any attempt to give practical
effect to that doctrine, by action upon it,
He then proceeded to discuss some of the
points made in the arguments saving there
was great dive rsity of opinion relative to the
nature OF what constitutes crimes and misde
| conferred by the Constitution in very general
terms. Considering the causes of impeach-
ment as vaguely provided by law he thinks
the impeachment of the elective chief magis-
trate of great nation for political causes an
unnecessarily harsh measure, and one hardly
worth resorting to, except upon clear and I'M
questionable grounds. There is more at
stake than the fate of the individual That
which tends to weaken the respect of the
people for the Office of Chief Magistrate, and
to break down the barriers surrounding that
office, to make it the mere sport OF temporary
majorities, tends to the great injury of orr
whole government, and wounds constitutional
liberty.
He did not consider the charges against the
President sufficient to justify his removal. es-
pecially as the office is to be transferred to the
hands of those removing him. The offences
lustifying the removal from office should he of
such a character as to commend themselves to
the people The removal should be free from
talht OF party, and should leave no reasonable
grounds OF suspicion upon the motives of those
nm the penalty. Anything less than
law, would not in his Judgment, be justified
by considerate public opinion, and its ten
dency would be TO shake the faith of tho
friends of constitutional liberty in the herman.
ency of our free institutions.
In reply to the suggestion that popular opin-
ion demands the conviction of the President
he said-The people have not heard the evil
dence as we have heard it; the responsibility
is not upon them, but upon us; they have not
taken an oath to do impartial iustice-I have
taken that oath. | cannot render Judgment
upon their convictions, nor can they transfer
to themselves my punishment If L violated
my oath L should consider myself undeserving
the confidence OF my people, and unworthy a
place among honorable men. The conseuuen-
ces are not for me TO consider. The future is
in the hands of Him who made and governs