Year: 1868




Mr.. Chairman, 1 regret the necessity


which called me away from the city before


the question of impeachment in its new
phase came up. 1 endeavored, when the
news of the Presidents attemptat usur-
patton reached me, to learn by telegraph


whether it was possible for me to return
TO nv seat in time for the final vote, but
found it was impossible for me TO reach
here in time. and that the sentiment OF
the House was so nearly unanimous that
nv vote was not necessary. If had been
here l should have voted for impeaeh'
ment.


When the proposition for the imPeaeh-
ment or the President was before the
| House q few weeks ago voted against 1t,
not because 1 did not believe that his con
| duct deserved the severest condemnation
but because 1 did not believe the attempt
was likely to be successful. It was true
that he had done all in hispowerto thWart,
without perhaps, plainly violating the re-
construction laws of Congress but L was
unwilling that the House should under
/ take his impeachment on thJse twenty
! six long articles Of indictment which
were proposed in the report Of the Com
mittee on the Judiciary, each of which
might have required 4 fortnights time IN
the Senate. 1t seemed TO me it would be
manifestly an interminable contest; that
the President would pass out of Office by
the expiration of q term before It would
be possible TO conclude such trial. And
unwilling, therefore, TO divert the atten-
ton of Congress from its legislative du-
ties into struggle of that sort, only to be
! foiled at last, l thought it best TO vote
against them, and did so. I believe the
great body Of the American people ap-
proved of that vote, and were willing to
endure the administration of Andrew
/ johnson, hedged in and limited as it has
been BY law, rather than to attempt to try
I him on those charges.


But now, at last, the President has left
Us no choice. The forbearance of Con-
gress and the American people be has TO-
tally misunderstood. He believes himself
victor before whom Congress is retreat
ing IN confusion. Our clemency has only
increased his reckless audacity, and he has
ventured 70 violate not only q peremtOry
law OF the United States, but the plain
provisions of the institution. He has
fallen upon that rock and must be broken.
He has compelled US to use the high power
of Impeachment to defend both the laws
and the Constitution against his aggres-
sion. In the first place, desire to show
that the President has no warrant in the
Constitution for the removal of Edwin NJ.
Stanton and the appointment of Loren
20 Thomas, as he has attempted. The
only express power of removal found in
the Constitution is in these words:


The President. Vice President and all civil
officers of the United States shall be removed
from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and
misdemeanors. Article 2 Section 1.


The first sentence of the second article,
which declares that


The executive power shall be vested in a
President OF the United States of America"-
cannot be regarded as granting a specific
power, and is manifestly one of this case.
Since the great debate on this subject IN
1885 the power of removal, otherwise than
by impeachment, has been held to be de-
rived from the power of appointment, be-
ing an incident to or q consequence Of the
act OF appointment.


So far as the President has any power
of appointment it is found in the second
section of the second article, and in these
words:


He shall nominate. and. BY and with the ad-
vice and consent OF the senate. s5aii appoint Pni,5
States whose appointment is not herein other
wise provided for and which shall be establish
ed BY law but the Congress may oy law Test
the appointment of such inferior officers as they
may think proper in the President alone. IN the
courts of lasS, or in the heads Of Departments.


The President shall have power to fill up all
vacancies that may happen during the recess Of
the Sen ate, by granting commissions which shall
expire at the end Of their next session"


In an appointment to Office, as con tenn
plated by tais clause, there are three sta
ges:


L The nomination, which is solely vest
ed in the President.


?. The ''advice and consent of the Sen
ate" to the appointment of the person so
nominated.


8. The appointment itself, which is the
ministerial act of conferring authority TO
perform the functions of the Office in ac-
cordance with the advice and consent of
the Senate. This is usually done by sign
ing q commission or letter of authority
An appointment, therefore, pre-supposes
nomination and a consent Of the Senate.
This subject was so thoroughly discussed
in 1903 by Chief Justice Marshall, in the
case of Marbury against Madison, Il Cranch
l37, as to leave little to e.said. In cases
where the President is himself the ap-
pointing power the commission is, in fact,
the appointment, at least it is the only con-
elu-ive evidence of appointment.


The filling up of vacancy which may
happen during the recess of the Senate is
not an appointment, Is not so called in the
! Constitution. Again, the vacancies which
the President may ''fll up" are vacancies
which ''may happen" not those which are
made by executive removal. We have
the high authority Of Alexander Hamll-
ton that the words ''may happen" clearly
imply casualty, such as death or resigna-
ton, and nota vscaney made By the Presi-
drnt.


Indeed, the President cannot by au-
shority of the Constitution directly re-
move at all. As was argued by Webster
and Calhoun in the great debate of 1885,
the power of removal is only incident to
the power of appointment. For example,
the President sends in 10 the Senate the
name Of q person TO I'LL an Office now held
by person regularly appointed by the
advice and consent of the Senate.
When the Senate consents TO the new
appointment the PRESIDENT issues a COM
mission, the act of issuing the commission,
the act of appointing new men, displaees
the old incumbent and is only by force
of the appointment that he is crowded out
OF removed. There is, therefore, no such
thing known to the Constitution of the
United States as a removal by the Presi-
dent of the United States. He Is empow-
cred TO appoint with the consent of the
Senate and such an appointment may
work a removal. But the President can
not exercise the naked power of removal
by any authority conferred by the Con
stitution.


Now, what has the President done He
has undertaken to remove, without the
consent of the Senate, an officer whom the
President had appointed by the dvice and
consent of the Senate. He has underta.
ken to appoint and to install in the exc
cEtion of the duties of an Office 4 nan
whose nomination has not been ratified by
the Senate. If, then, there were no ten
ure- Of Office act 1 should hold that the
President has committed clear and pal
pable violation of the Constitution IN his
attempt TO remove Mr.. Stanton and ap-
mint Lorenzo Thomas