The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-05-19
IMPEACHMENT.
Senator Fessendens Opinion i'm full.

oohaIor fesSenuen'S Opinion in full.
In the secret session of the Court of I'M
peachment, on Monday, May II, Mr.. Fessen-
den said:
The House oi Representatives have, under
the Constitution of the United States. nre
sented to the Senate eleven distinct articles
OF Impeachment for high crimes and misde-
meanors against the Presidenr. Each Sena-
tor has solemnly sworn, as required by the
Constitution, to do impartial Justice accord
ing to the Constitution and the laws upon
the trial. 1t needs no argument to show that
the President IS on trial for the specific Of
fences charged and none other. 1t would be
contrary to every principle of justice, to the
clearest dictates of right, to try and condemn
any man, however guilty be may be thought,
for any offence not charged, of which no no
tice has been given to him, and against which
he has no opportunity to defend himself The
question then, as proposed to every Senator
acting as judge, and sworn to do impartial
justice, is: Is the President guilty or not
guilty OF high crime or misdemeanor as
charged in all or either of the articles exhibit
ed against him?
THE PRESIDENTS POWER OF REMOVAL.
The first article of the series substantially
charges the President with having attempted
to remove Edwin NJ. Stanton from the office
OF Secretary OF War which he held. in VIC
ation of the law and of the Constitution of
the United States. Granting that an illegal
and unconstitutional attempt to remove Mr..
Stanton, in the manner alleged in the article,
whether successful or not, is a high misde-
meanor in Office, the first obvious inquiry pre-
sents itself, whether, under the Constitution
and the laws, the President had or had not
right to remove that officer at the time such
an attempt was made, the Senate then being
in session. To answer this inquiry, it is nee
essary to examine the several provisions of
the Constitution bearing upon the question,
and the laws of Congress applicable thereto,
together with the practice, it any, which has
prevailed since the foundation of the Govern
ment on the subject of removals from Office
The provisions of the Constitution applicable
to the question are very few. The first is as
follows:
ART. 2-Sec L Inc EXECUTIVE power snail pc vest
ed in President of the United States of America.
ART. 2-Sec. 2-He 1.-THE Pi esident) shall nominate,
and by and with the advice and consent OF the Senate
shall appoint Ambassadors and other public Minis
tiers and Consuls, Judges of the Supreme Court and
other officers OF the United States whose appoint
ments not herein otherwise provided for and
which shall be established by law.
Same Section-The President shall have power to
fill all vacancies that may happen during the re-
cess OF the Senate by granting commissions which
shall expire at the end Of their next session.
I'd
all civil officers of the United States shall be
ed from otce ON leachment tor and conviction of
treason bribery,or other high crimes and misdemean
0rs
The whole question of removal from Office
came under the consideration of the first
Congress assembled after the adoption Of the
Constitution, and was much discussed by the
able men of tnat day, among whom were sew
eral who took prominent part in framing that
instrument 1t was noticed by them that
the only provision which touched in express
terms upon the subject of removal from office
was found in the clause which related to i'm
preachment, and it was contended that con-
sequently there was no other mode of reno
val. This idea, however, found no favor al
that time, and it seems never since to have
been entertained. 1t is quite obvious that as
such construction would lead to hfe-ten.
ure of ofce,a suppositien at war with the ma
ture of our Government, and must of neceSs /
ty, involve insrfierable difficulties in The con.
duct of affairs, it could not be entertained
But it was equally obvious that {. power o
removal must be found somewhere, and is il
was not expressly given, except in the im
peachment clause, it must exist among the
implied powers OF the Constitution. 1t wa.
conceded by all to be in its nature an eXecu
tive.power, and while some, and among then
Mr.. Maids on, contended that it belonged tt
the President alone, because he alone was in
vested with executive power, and that from the
nature OF his obligations to execute the law!
and to defend the Constitution he ought Il
have the control of his suEOrdinates, and Others
thought that as he could only appoint Officers
by and with the consent OF the Senate, the
| advice and consent of the Senate should be
required to authorize their removal. The
| first of these constructions finally prevailed
| as those who have read the debates Of tha
| rorind will EnnW This xUa understood an(
| avowed at the time to be the legislative con
| struction of the Constitution, by which th'
| power of removal from the office was lecog
nized as exclusively vested in the President
whether right or wrong, wise OF unWlse.-
| Such was the decision and several laws wer'
Immediately enacted in terms recognising
| this construction of the Constitution. Th'
debate referred to, arose upon bill for estab
fishing what is known as the Department
State. In accordance with the decision
| that first Congress, the right and power o
| the President TO remove the chief officer o
that Department. was expressly recognized
in the second section, as follows:
SECTION 2-And be it further enacted that ther
| shall be in he said Department an interior Officer
&c.,who whenever the said principal officer shall
removed from office by the Presi4e 4ent OF the Unite
States, or in any other OF ,acancy shall durin
| such vacancy have the charge, &c.
The act was approved July q, 1889. Tn
same provision is found, tOtidem Uer6is, il
the act establishing the Department of Wal
approved Aug. 7, 1889, and terms equally def
mite are found in the act to establish tn
Treasury Department, approved Sept.
1889. These several acts have continued Il
force to the present day, and although tn
correctness of the legislative construction
then established has more than once beel
questioned by eminent statesmen since tha
early period, yet it has been so unltorml
recognized as to give it the force of constitu
tional authority. A striking illustration {
TINS practical construction arose In the ao
ministration of John Adams, who, when tn
Senate was in session, removed Mr. Picker
ing from the office of SecretarJ OF Stat
without asking the advice and consent OF tn
Senate, nominating to that body for appom
ment, on the same day, John Marshall IN tn
place of Timothy Pickering, removed.
question seems to have been made at tn
time of this exercise of power. The form
all the commissions issued to the heads
departments and to other officers, whose tel
ure was not limited by statute, has been du
ing the pleasure of the President for I'll
time being, and the right to remove has bee
exercised without restraint, as well upo
officers who were appointed for a denni
term as upon those who held during u
pleasure of the President.
lt mas been argued that even 'nio %
of removal by the President may be SD
posed to exist during a recess of the Senat
it is otherwise when that body is IN sesslo
. am unable to perceive the grounds of tn
:, distinction, CT to find any proof that IL n
been recognized in practice. The Constt
e tion makes no such distinction, as it sa
nothing.of removal in either OF the clause
+, while making distinct provisions for appor
ments during the recess and when in sessio
Probably this idea had its origin IN the ia
u that in recess the President could appoi
for definite period without the advice al
consent of the Senate, while in the 9th
| casa no annointment could be made WithO