Mr. Gerry, of Massachusetts, also said :

Hence all construction of the meaning of the Constitution is dangerous or unnatural, and therefore ought to be avoided. This is our doctrine, that no power of this kind ought to be exercised by the legislature. But we say, if we must give a construction to the Constitution it is more natural to give the construction in favor of the power of removal vesting in the President, by and with the advice and consent of the Senate; because it is in the nature of things that the power which appoints removes also.

Again, Mr. Sherman said speaking of the words which were introduced into the first section and finally stricken out:

I wish, Mr. Chairman, that the words may be left out of the bill, without giving up the question either way as to the propriety of the measure.

The debate upon the bill relating to the department for foreign affairs occurred in the month of June, 1789; in the following month of August Congress was engaged in considering the bill establishing the Treasury Department. This bill originated in the House, and contained the phrase now found in it, being the same as that contained in the bill establishing the State Department.

The Senate was so far satisfied of the impolicy of making any declaration whatever upon the subject of removal, that the clause was struck out by an amendment. The House refused to concur, however, and the Senate, by the casting vote of the Vice-President, receded from the amendment.

All this shows that the doctrine of the right of removal by the President survived the debate only as a limited and doubtful right at most.

:

The results reached by the Congress of 1789 are conclusive upon the following points that that body was of opinion that the power of removal was not in the President absolutely, to be exercised at all times and under all circumstances; and secondly, that during the sessions of the Senate the power of removal was vested in the President and Senate, to be exercised by their concurrent action; while the debate and the votes indicate that the power of the President to remove from office, during the vacation of the Senate, was, at best, a doubtful power under the Constitution.

It becomes us next to consider the practice of the government, under the Constitution, and in the presence of the action of the first Congress, by virtue of which the President now claims an absolute, unqualified, irresponsible power over all public officers, and this without the advice and consent of the Senate, or the concurrence of any other branch of the government. In the early years of the government the removal of a public officer by the President was a rare occurrence, and it was usually resorted to during the session of the Senate, for misconduct in office only, and accomplished by the appointment of a successor through the advice and consent of the Senate. Gradually a practice was introduced, largely through the example of Mr. Jefferson, of removing officers during the recess of the Senate, and filling their places under commissions to expire at the end of the next session. But it cannot be said that this practice became common until the election of General 'Jacksou, in 1828. During his administration the practice of removing officers during the recesses of the Senate was largely increased, and in the year 1832, on the 18th of September, General Jackson removed Mr. Duane from the office of Secretary of the Treasury. This occurred, however, during a recess of the Senate. This act on his part gave rise to a heated debate in Congress, and an ardent controversy throughout the country, many of the most eminent men contending that there was no power in the President to remove a civil officer, even during the recess of the Senate. The triumph of General Jackson in that controversy gave a full interpretation to the words which had been employed in the statute of 1789.

But, at the same time, the limitations of that power in the President were clearly settled, both upon the law and upon the Constitution, that whatever might be his power of removal during a recess of the Senate, he had no right to make a removal during a session of the Senate, except upon the advice and

consent of that body to the appointment of a successor. This was the opinion of Mr. Johnson himself, as stated by him in a speech made in the Senate on the 10th of January, 1861:

I meant that the true way to fight the battle was for us to remain here and occupy the places assigned to us by the Constitution of the country. Why did I make that statement? It was because on the 4th day of March next we shall have six majority in this body; and if, as some apprehended, the incoming administration_shall show any disposition to make encroachments upon the institution of slavery, encroachments upon the rights of the States or any other violation of the Constitution, we, by remaining in the Union and standing at our places, will have the power to resist all these encroachments. How? We have the power even to reject the appointment of the Cabinet officers of the incoming President, Then, should we not be fighting the battle in the Union by resisting even the organization of the administration in a constitutional mode, and thus, at the very start, disable an administration which was likely to encroach on our rights and to violate the Constitution of the country? So far as appointing even a minister abroad is concerned the incoming administration will have no power without our consent, if we remain here. It comes into office handcuffed, powerless to do harm. We, standing here, hold the balance of power in our hands; we can resist it at the very threshold effectually, and do it inside of the Union and in our house. The incoming administration has not even the power to appoint a postmaster, whose salary exceeds $1,000 a year, without consultation with, and the acquiescence of, the Senate of the United States. The President has not even the power to draw his salary, his $25,000 per annum, unless we appropriate it. (Congressional Globe, vol. 43, page 309.

It may be well observed, that for the purposes of this trial, and upon the question whether the President is or is not guilty under the first three articles exhibited against him by the House of Representatives, it is of no consequence whether the President of the United States has power to remove a civil officer during a recess of the Senate. The fact charged and proved against the President, and on which, as one fact proved against him, we demand his conviction; is, that he attempted to remove Mr. Stanton from the office of Secretary of War during a session of the Senate. It cannot be claimed with any propriety that the act of 1789 can be construed as a grant of power to the President to an extent beyond the practice of the government for threequarters of a century under the Constitution, and under the provisions of the law of 1789. None of the predecessors of Mr. Johnson, from General Washington to Mr. Lincoln, although the act of 1789 was in existence during all that period, had ever ventured to claim that either under that act, or by virtue of the Constitution, the President of the United States had power to remove a civil officer during a session of the Senate, without its consent and advice. The utmost that can be said is, that for the last forty years it had been the practice of the Executive to remove civil officers at pleasure during the recess of the Senate. While it may be urged that this practice, in the absence of any direct legislation upon the subject, had become the common law of the country, protecting the Executive in a policy corresponding to that practice, it is also true, for stronger reasons, that Mr. Johnson was bound by. his oath of office to adhere to the practice of his predecessors in other particulars, none of whom had ever ventured to remove a civil officer from his office during the session of the Senate and appoint a successor, either permanent or ad interim, and authorize that successor to enter upon the discharge of the duties of such office. The case of Timothy explained, and it constitutes no exception. As far as is known te me the lists of removals and appointments introduced by the respondent do >net net sustain the claim of the answer in regard to the power of removal.

Hence it is that the act of 1789 is no security to this respondent, and hence it is that we hold him guilty of a violation of the Constitution and of his oath of office, under the first and third articles of impeachment, exhibited against him by the House of Representatives, and this without availing ourselves of the provisions of the tenure-of-office act of March 2, 1867.

I respectfully ask that the views now submitted, in reference to the act of 1789, may be considered in connection with the argument I have already offered,

upon the true meaning of the provisions of the Constitution relating to the appointment of civil officers.

I pass now to the consideration of the act of the 13th of February, 1795, on which the President relies as a justification for his appointment of Lorenzo Thomas as Secretary of War ad interim. By this act it is provided :

In case of vacancy in the office of Secretary of State, the Secretary of the Treasury, or of the Secretary of the Department of War, or of any other officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months. (1 Stat. at Large, p. 415.)

The ingenuity of the the President and his counsel has led them to maintain that the phrase "in case of vacancy," used in this statute, relates to any and every vacancy, however produced. But the reading of the entire section, whether casually or carefully, shows that the purpose of the law was to provide a substłtute temporarily in case of vacancy, whereby the person in office could not perform the duties of his office, and necessarily applied only to those contingencies of official life which put it out of the power of the person in office to discharge the duties of the place; such as sickness, absence or inability of any sort. And yet the President and his counsel contend that a removal by the President is a case of vacancy contemplated by the law, notwithstanding the limitation of the President in his power of appointing an officer temporarily, is to those cases which render it impossible for the duly commissioned officer to perform the duties of his office. When it is considered, as I have shown, that the President had no power-and this without considering the tenure-of-office act of March 2, 1867—to create a vacancy during a session of the Senate, the act of 1795, even upon his construction, furnishes no defence whatever. But we submit that if he had possessed the power which he claims by virtue of the act of 1789, that the vacancy referred to in the act of 1795 is not such a vacancy as is caused by the removal of a public officer, but that that act is limited to those vacancies which arise unavoidably in the public service, and without the agency of the President. But there is in the section of the act of 1795, on which the President relies, a proviso which nullifies absolutely the defence which he has set up. This proviso is, that no one vacancy shall be supplied in manner aforesaid (that is, by a temporary appointment) for a longer term than six months. Mr. Johnson maintains that he suspended Mr. Stanton from the office of Secretary of War on the 12th of August last, not by virtue of the tenure-of-office act of March 2, 1867, but under a power incident to the general and unlimited power of removal, which, as he claims, is vested in the President of the United States, and that, from the 12th of August last, Mr. Stanton has not been entitled to the office of Secretary for the Department of War. If he suspended Mr. Stanton as an incident of his general power of removal, then his suspension, upon the President's theory, created a vacancy such as is claimed by the President under the statute of 1795. The suspension of Mr. Stanton put him in such a condition that he "could not perform the duties of the office." The President claims also to have appointed General Grant Secretary of War ad interim on the 12th of August last, by virtue of the statute of 1795. The proviso of that statute declares that no one vacancy shall be supplied in manner aforesaid (that is, by temporary appointment) for a longer term than six months. If the act of 1795 were in force, and if the President's theory of his rights under the Constitution and under that act were a valid theory, the six months during which the vacancy might have been supplied temporarily expired by limitation on the 12th day of February, 1868, and yet. on the 21st day of February, 1868, the President appointed Lorenzo Thomas Secretary of War ad

interim to the same vacancy, and this in violation of the statute which he pleads in his own defence. It is too clear for argument that if Mr. Stanton was lawfully suspended, as the President now claims, but not suspended under the tenure-of-office act, then the so-called restoration of Mr. Stanton on the 13th January was wholly illegal. But if the statute of 1795 is applicable to a vacancy created by suspension or removal, then the President has violated it by the appointment of General Thomas Secretary of War ad interim. And if the statute of 1795 is not applicable to a vacancy occasioned by a removal, then the appointment of General Thomas Secretary of War ad interim is without authority or the color of authority of law.

The fact is, however, that the statute of 1795 is repealed by the operation of the statute of the 20th of February, 1863. (Stat. at Large, vol. 12, p. 656.)

If senators will consider the provisions of the statute of 1863 in connection with the power of removal under the Constitution during a session of the Senate, by and with the advice and consent of the Senate, and the then recognized power of removal by the President during a recess of the Senate to be filled by temporary appointments, as was the practice previous to March 2, 1867, they will find that provision was made by the act of 1863 for every vacancy which could possibly arise in the public service.

The act of February 20, 1863, provides

That in case of the death, resignation, absence from the seat of government, or sickness of the head of an executive department of the government, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize the head of any other executive department or other officer in either of said departments whose appointment is vested in the President, at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability shall cease: Provided, That no one vacancy shall be. supplied in manner aforesaid for a longer term than six months.

Provision was thus made by the act of 1863 for filling all vacancies which could occur under any circumstances. It is a necessary rule of construction that all previous statutes making other and different provisions for the filling of vacancies are repealed by the operation of more recent statutes; and for the plain reason that it is inconsistent with any theory of government that there should be two legal modes in existence at the same time for doing the same thing.

If the view I have presented be a sound one, it is apparent that the President's conduct finds no support either in the Constitution, in the act of 1.789, or in the legislation of 1795, on which he chiefly relies as a justification for the appointment of Thomas as Secretary.of War ad interim. It follows, also, that if the tenure-of-office act had not been passed the President would have been guilty of a high misdemeanor, in that he issued an order for the removal of Mr. Stanton from office during the session of the Senate, in violation of the Constitution and of his own oath of office; that he was guilty of a high misdemeanor in the appointment of Lorenzo Thomas as Secretary of War ad interim, and this whether the act of the 13th of February, 1795, is in force, or whether the same has been repealed by the statute of 1863. His guilt is thus fully proved and established as charged in the first, second and third articles of impeachment exhibited against him by the House of Representatives, and this without considering the requirements.or constitutionality of the act regulating the tenure of certain civil offices. I pass now to the consideration of the tenure-of-office act. I preface what I have to say, by calling to your attention that portion of my argument already addressed to you, in which I have set forth and maintained, as I was able, the opinion that the President had no right to make any inquiry whether an act of Congress is or is not constitutional. That, having no right to make such inquiry, he could not plead that he had so inquired, and reached the conclusion that the act inquired about was invalid. You will also bear in mind the views presented,

that this tribunal can take no notice of any argument or suggestion that a law deemed unconstitutional may be wilfully violated by the President. The gist of his crime is, that he intentionally disregarded a law, and, in the nature of the case, it can be no excuse or defence that such law, in his opinion, or in the opinion of others, was not in conformity with the Constitution.

In this connection, I desire to call your attention to suggestions made by the President, and by the President's counsel-by the President in his message of December, 1867, and by the President's counsel in his opening argument-that if Congress were by legislation to abolish a department of the government, or to declare that the President should not be Commander-in-chief of the army or the navy, that it would be the duty of the President to disregard such legislation. These are extreme cases, and not within the range of possibility. Members of Congress are individually bound by an oath to support the Constitution of the United States, and it is not to be presumed, even for the purpose of argument, that they would wantonly disregard the obligations of their oath, and enact in the form of law rules or proceedings in plain violation of the Constitution. Such is not the course of legislation, and such is not the character of the act we are now to consider. The bill regulating the tenure of certain civil offices was passed by a constitutional majority in each of the two houses, and it is to be presumed that each senator and representative who gave it his support did so in the belief that its provisions were in harmony with the provisions of the Constitution. We are now dealing with practical affairs, and conducting the government within the Constitution; and in reference to measures passed by Congress under such circumstances, it is wholly indefensible for the President to suggest the course that in his opinion he would be justified in pursuing if Congress were openly and wantonly to disregard the Constitution, and inaugurate revolution in the government.

It is asserted by the counsel for the President that he took advice as to the constitutionality of the tenure-of-office act, and being of opinion that it was unconstitutional, or so much of it at least as attempted to deprive him of the power of removing the members of the cabinet, he felt it to be his duty to disregard its provisions; and the question is now put with feeling and emphasis whether the President is to be impeached, convicted, and removed from office for a mere difference of opinion. True, the President is not to be removed for a mere difference of opinion. If he had contented himself with the opinion that the law was unconstitutional, or even with the expression of such an opinion privately or officially to Congress, no exception could have been taken to his conduct. But he has attempted to act in accordance with that opinion, and in that action he has disregarded the requirements of the statute. It is for this action that he is to be arraigned, and is to be convicted. But it is not necessary for us to rest upon the doctrine that it was the duty of the President to accept the law as constitutional and govern himself accordingly in all his official doings. We are prepared to show that the law is in truth in harmony with the Constitution, and that its provisions apply to Mr. Stanton as Secretary for the Department of War.

The tenure-of-office act makes no change in the powers of the President and the Senate, during the session of the Senate, to remove a civil officer upon a nomination by the President, and confirmation by the Senate, of a successor. This was an admitted constitutional power from the very organization of the government, while the right now claimed by the President, to remove a civil officer during a session of the Senate, without the advice and consent of the Senate, was never asserted by any of his predecessors, and certainly never recognized by any law or by any practice. This rule applied to heads of departments as well as to other civil officers. Indeed, it may be said, once for all, that the tenure by which members of the cabinet have held their places corresponds in every particular to the tenure by which other civil officers have