Year: 1868

kOHk iHEHAIlJ, FRlUA1,
sent Of the Senate; and Mr.. Stanton was such an
on1cer, whatever might have been his tenure OF
once. conclude then, that as MI. Stanton was ap-
not affected BY the act Of March ., 1857 the Presi
the aist Of February, and consequently % cannot @ be
held guilty under the first article. Even, however,
were not sas;sned cf the s. construction 2 given I've!
tate to convict the President of high misdemeanor
for what was done by him on the 21st OF February.


rst section Of that act 70 the case q Mr. Stanton is
that its application u doubtful IT, In fact Mr.. STAN
ton within it the act done By ne an dS
the part Of the President which he might Wen be-
failed to show any design on the part Of the Pres


dent to effect his purpose by force or violence. 1t
but the 81 ~ s Written oa sss
constitutional Chief Magistrate Of . great nation
elected by the people on grounds slight would In
on the Senate which could not be justified to the
country or to the world. To construe such an act
az an hign crime or msdemeanor within tae meaning ing
hour have had time to cool be looked upon with
wonder, II not with derision. Worse than this, it
our government which time would fail to cure.
The second article Is founded upon the letter Of
IoreD1o % ho%as dated February a. isss The sub
stanta allegations Of the article are that this letter
issued In violation Of the constitution and con-
trary to the provisions OF the act regulating the
tenure of certain civil officers without the advice and
consent OF the Senate that body being then In session.
n ns
War. In the view l have taken Of the first article
there was legally vacancy in the Department OF
same day, and the letter Of authority SO states the
fact, and is predicated thereon 1t Is well estab-
as are principle a1ns ct aw S sss %e ms %s
q which - IN In, its nature precedes the other,
natural order. The question then Is, whether q
vacancy existing which the President had q legal
right to 1l by designation OF some person to act
to this question will depend, to great extent,
upon an examination Of the statutes. Mr.. Fessenden
here quoted from all Of the various laws which have
been passed by Congress giving the President power
to fill vacancies TN the various departments, and
argued at length to show that the President was
Continuing, he said:-H, therefore, the removal is
not contrary to the act neither is the designation Of
person to discharge the duties temporarily, and
a letter of authority issued In such case
is not prohibited. In confirmation of this view, 1t
will be noticed that the eighth section of the act Of
President, without the advice and consent of the
Senate to designate, authorize or employ persons to
perform the duties OF certain OFFICES temporarily,
cedng acts. My conclusion therefore, is that the
President had legal right to remove Mr.. Stanton,
notwithstanding the act OF March q 1867 he had the
right to issue the letter OF authority to General
Thomas to discharge the duties OF the Department of
War, under and by virtue OF the act Of 1895.
months limitation In the act Of 1895, and
expired before the 2lst Of February 1s63 in cOnse
quence of the appointment of General Grant Secre
tary Of War ad interim on the 18th day of August,
1867. ! am unable to see the force OF this argument


whatever may have been the opinion OF the President
cOnstitution and am OF the opinion that he had no
such power He clearly had the right to suspend Mr..
Stanton under the second section Of the OF March
2, 1867, and must be held In law to have acted by
virtue OF the lawful authority thereby conferred,
more especially as he saw 1T to conform in all re-
upon that suspension restored MI. Stanton to his
Office of Secretary Of War. This suspension cannot
mOva on the 2ls of February created vacancy in the
Office from that date The designation OF Gen. Thomas
the original resignation Of General Grant the 18th
day OF August, 1867. But even II am wrong In this
conclusion and the President had no power by exist
ing laws 10 appoint secretary Of War al Interim,
yet If Mr. Stanton did not come within the first
section Of the act OF 1857 the second article falls


The gravamen Of that article Is the violation Of the
constitution and the act of March 1867, by issuing
the letter of authority with intent to violate the con-


sttution, &C., there being no vacancy in the Office Of
Secretary of War. II a legal vacancy existed the
material part Of the accusation Is gone letter OF
authority such as that issued to Thomas is in no
appointment to office. as understood by the
constitution II 1t be- then the power issue let
ter in any case without the consent OF the Senate
cannot be conferred by Congress. II be, the acts
OF 1892, 1895 and 1858 are unconstitutional.
The sixth section OF "Act OF March q


1867 recognizes the distinction between an
appointment and q letter of authority. The


pra ctce has been frequent and unbroken both with
and without authority OF statute law to issue letters
of authority In cases vacancy and temporary dis


ability almost from the formation Of the government


II has been called into use here by the necessity of
always having some one at the head Of department


There Is no prohibiting such designation in Of
a vacancy In department. IL the President had no
authority to issue the letter in this individual case t
Mss no Of tn
stitution or the law. The fact that on the
very next day nomination was actually
had adjourned, 1t was not communicated until the
succeeding day, goes to show thht there might have
been no design to give anything but the most tenn
pOrary character to the appointment. To hold that
an act OF such character, prohibited by no law
having the sanction OF long practice, necessary for
might well be justified I'm believing authorized by
exist ng law was high misdemeanor, justifying
the removal OF the President OF the United States
from oiilcc, would In my Judgment be in inself
monstrous perversion OF justice, II not Of itself vio


ati0n OF the constitution The first two articles fail
ing, the third, fourth, ffth, sixth, seventh and
eighth must fail with them. The third differs
from the second only In allegation that the
President appointed Lorenzo Thomas Secretary dd
interim without the assent OF the Senate, that body
being then IN session and there being vacancy in
said office. The answer 10 this allegation Is, 1t was
not an appointment requiring the consent of the
Senate, but simple authority TO act temporarily;
and In the second there was legal vacancy in the
ONCE existing at this time. OF article four 1t Is sum-


cient to say that there Is evidence to sustain IT,
There s nothing bearing upon except the idle talk
OF Mr.. Thomas himself OF what he Intended to do
and he testies under oath that the President
authorized or suggested the use OF force. What was
said by Mr.. Thomas was said out OF doors, not to
Mr.. Stanton nor communicated to him by message.
The interviews between General Thomas and
Mr.. stanton were OF the most pacific char
acter. The reply OF Mr.. stanton when the letter
OF the President was delivered to him. was motive
to repe the idea OF resistance, and the testimony
General Sherman shows that the President did not
anticipate resistance. IL IL essential TO the support
OF this ourth) article, and also Of article six that
intimidation and threats should have been contem-
plated by the parties charged with conspiracy under
the act OF July 81, 1861. These failing the charge
falls with them In both articles. As to the NTH and
seventh articles the attempt made TO sustain them
under q law OF Congress, passed February 81 1sol,
extending the criminal laws OF MARYLAND over 40
much Of the District as part OF that State mas
much az the common law was, far as IL had not
been changed by the statutes OF the law OF Maryand
on conspiracy or msdelneanor. The President
Is charged with misdemeanor by con-