Year: 1868

The President is impeached by the House
of Representatives of high crimes and misde-
meanOrs, in that on 21st of February last he
issued an order for the removal from office of
Edwin M. Stanton, Secretary of War, with
intent to violate the tenure-of-office act, and
to remove said Stanton from office.


In that on said 21st of February he issued
to General Thomas letter authorizing and
empowering him to act as Secretary of War,
there being no vacancy in that office, with
intent to violate the tenure-of-office act.


In that on the said 21st OF February he did
appoint said Thomas to be Secretary for the
Department of War dd interim, without the
advice and consent of the Senate, no vacancy
having happened in said office, with intent to
violate the Constitution of the United States


In that he eonspired with said Thomas to
hinder and prevent said Stanton from filling
said office; to prevent and hinder the execu-
tion OF the tenure-ofoffice act; to get possess
sion of tho War Office, and of the property of
the United States in the Department of War;


In that, with intent to violate the tenure
ofoffice act, he authorized said Thomas to
act as Secretary Of War, there being no va
cancy in said office, and the Senate then be-
ing in session.


In that he attempted unlawlully to induce
General Emery to obey his orders, and not
those issued by the General OF the army, with
intent to enable him to defeat the tenure-Of-
office act, with intent to prevent said Stanton
from holding his Office.


In that, to bring Congress into contempt,
and excite the odium of the people against
Congress and the laws by it enacted, he made
certain public addresses, indecent and unbe-
coming in the Chief Magistrate, by means
whereof he brought the office into contempt,
Iidicule and disgrace.


In that he attempted to prevent said Stan
ton from resuming the Office of Secretary of
War, after the refusal of the Senate to con-
cur in his suspension; also to prevent the ex-
ecution of the act of I'd of March, 1867, max
ing appropriations for the support of the ar
my, aud an act to provide for the more eff
cient government of the rebel States.


The President answering, does not contro-
vert the essential facts charged, but insists
that the acts complained of are authorized by
the Constitution and laws; and further, that
If in any respect this plea fails of a complete
justification, he should still be acquitted, as
those acts were all done in good faith in the
performance of public duties arising in the
execution of his office, imposed upon him by
the Constitution and laws and in defence and
execution of them. Concurring in much of
the reasoning of the Senators who are of
opinion that the answer and defence of the
President as to several of the charges fail of
such justification, shall content myself with
a statement of the grounds of my opinion up
on a portion of the articles only.


The first three articles and the eleventh re-
late to the attempt to remove Mr.. Stanton
from the Office of Secretary of War; the au-
thOrity to General Thomas to take possession
and to do the duties of the office; the ap-
pointment of General Thomas as Secretary
of War dd interim; and the attempt to pre-
vent Mr.. Stanton from resuming the duties
of his official Office after his suspension had
been non-concurred in by the Senate.


The question arising under these articles
turns chiefly upon the question whether the
tenure -of-otfice act is in conflict with the Con-
stitution of the United States, and the case
of Mr.. Stanton was affected by it.


Is the tenme-ofoffice act unconstitutional,
and is Mr.. Stanton embraced in its provisions
so as to be protected by it?


AS to the first proposition as between the
Senate and the President, it is not new
question, and it is difficult to perceive how it
can properly be regarded by either as an open
question. The act had been fully considered
when it was first enacted in the Senate, was
reconsidered after it had been returned by
the President with his objections fully stated,
and again passed with that manimity neces-
sary to give it the force of law, his objections
to the contrary Notwithstanding, and calcu-
lated to leave little doubt as to the confidence
with which the Senate held its opinions
The legislative and executive precedents
and practice in OUR history touching the pow
er of the President to remove from Office re-
lied upon by him as authoritative interpreta-
tion of the Constitution, were known and ia
miliar to Congress at the time. 1t is hot
suggested that the act was hastily or incon-
sderately passed, as it will not be doubted
that Congress had, in the recent examples OF
the exercise of this power by the Executive
abundant opportunity of judging of the expe
| diency of further continuance of this prac-
| tice.


The binding force of this practice of re-
moval by the President rests upon the in
depreciation given to the Constitution
by the first Congress. 1t is not in
| sisted that this Interpretation by that
Congress was authoritative and conclusive
upon succeeding Congresses, and it is admit
ted that the extent of its authority is as q
| precedent only. The question was therefore
| open to further legislative regulation, and the
practice which bad obtained under the act O
| 1889 could properly and should necessarily be
modified or reversed as experience should
| dictate that the public interests demanded
| The Congress of 1867, it will not be denied
| had all the power over the subject that thu
| Congress of 1889 is supposed to have had.
Besides it is well known that the Congress
| OF 1889 were far from having been nani
nous in their opinions and. action; that ont
branch was equally divided upon the measure
| and it finally passed by the casting vote O
| the presiding officer; and that from that tim,
to the date of the act in question the inter
| probation of the first Congress had been re
| peatedly the subject of grave debate in Con
| gress, and was believed by the most eminen
| of our statesmen, jurists, and commentator
upon the Constitution, to be unsound.
| Indeed the President is not understood Il
invoke the Senate now to declare void fo
conflict with the Constitution law whicI
had SO recently received its sanction, an
that after his objections to it had been full
! considered, but the argument presente
is rather in extenuation of his refusal to obey
and enforce it. For the purpose of thes
proceedings, the act in question may properl
and must necessarily be regarded as vali(
unless, indeed, it should be deemed advisabl
that Congress should repeal all laws the va
lidity of which may be questioned by tn
President, which he may deem inexpeden
or to which he does not yield willing obed
ence.


We are then brought to consider the ques
tion whether the case of Mr. Stanton was al
fected by the tenure of Office act. The frs
section OF that act is as follows:


That every person holding any civil office
| Whlcn ne mas Deen appointed by and with the at
vice and consent of the Senate, and every perso
who shall hereafter be appointed to any such ofiic
and shall become uuly qualified to act therein, is an
shall be entitled to hold such office until successe
shall have been in like manner appointed an
duly qualified, except as herein otherwise provided
Pr0Uided That the Secretaries of State of the Ire;
sury, of War, of the Navy, and of the Interior th
Postmaster General, and the Attorney Genera
shall hold their offices respectively for and duri


the term of the President by whom they nav hav
been appointed. and for one month thereafter, sui
ject to removal by and with the advice and conseI
of the Senate.


The counsel for the President contend tina
"out of the body of the section it is explicit
declared that there is to be excepted partit
ular class of officers, Except as herein other


wise provided" The Senator from low;


Mr.. Grimes, in his published opinion, says
"Mr. Stanton's case is not within the body


the first section. The tenure which that prC


vides for is not the tenure of any Secretary


Other Senators, who agree with Mr.. Crime


in the conclusion to which he comes, adoI


the views of the counsel for the President


These views are the opposites in statemeT


and principle, and cannot be reconciled wit


each other.


The construction Of Judge Curtis is tina


the body of the section-the words "eveI


person holding any civil office, appointed wit


the advice and consent of the Senate"-ne'


essdrity includes Mr.. Stanton's case, as


was civil officer who had been appointe
with the advice and consent of the Senate; an


to get rid OF Mr. Stanton's case he is force


to the construction that the words, "excel
as herein otherwise provided" "except hir


out of the body of the section;" while tt


Senator from Iowa accomplshes the same r


suit, more directly, but not less errOneousl