^u^^^ r^ >• V'^^-'*°' *\/ %*^^*/ *^^".,.- \...** .-iSSfcji-. **,.♦* .-^1^*, %.J^ /MS^'- **..** %PV o5 "ti) i-'V. ^o o • » :- '^ov* 3^ • ^ - • • • AV %*T^'/ *^^*^^\/ %^^-/ \-^^v %.** .• o*9 0^ ..V'.'./^O. OPINION /T^t^^^ i^^^^e--^-^^^ OF , 1 1^ HON. GAERETT DAYIS, OF KENTUCKY, Filed under the order of the Senate sitting as a Court of Impeachment for the Trial of Andreio Johnson, President of the United States. i - -■' The subject of impeachment is provided for in the Constitution by several clauses, which I will quote : " The House of Representatives shall have the sole pow«r ol' iuipeachtnetit." "The Senate shall have the sole power to try all IrapcachinentSy When sitting for that purpose they shall be ou oath or affirmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall ha convicted without the concurrence »f two thirds of the members pres- ent." " The President, Vice President, and all civil oflB- cers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." " Juiigment in cases of impeachment shall not ex- tend further than to removal from office and disqual- ification to hold and enjoy any office of honor, trust, or profit under the United States; but the party con- victed shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment accord- ing to law." Our system of impeachment has not been transferred from any other Government, nor was its orf^anization confided to Congress; but the cautious statesmen who founded our Gov- ernment incorporated it in and built it up as part of the Constitution itself They enumer- ated its essential features and made it sui gen- eris. 1. No person but civil officers of the United States are subject to imjjeachment. 2. The Senate is constituted the court of impeach- ment. 8. The Chief Justice of the United States is to preside over the court when the President is under trial, and the Vice President or President pro tempore of the Senate in all other cases. 4. No conviction can take place unless two thirds of the Senators present con- cur. 5. No impeachment can be made but for treason, bribery, or other high crimes and mis- demeanors against the United States. G. Judg- ment of impeachment cannot extend to death or other corporal punishment, or fine or im- prisonment; but is restricted to removal from and disqualification to hold office; but the party convicted, nevertheless, to be liable and subject to indictment, trial, judgment, and pun- ishment according to law. The offenders, of- fenses, court, and punishment are all distinctly impressed with political features. But the prosecution has assumed two strange and untenal)]e positions in the course of this trial. 1. That the Senate, in the performance of the present most important office and duty, is not a court. It is certainly not a legislative body, nor exercising legislative powers; it is not an advisory. council connected in a com- mon function with the President. What, then, is it ? Most of the States had previously to the formation of the Constitution organized their several tribunals to try cases of impeacliment, and by some they had been denominated courts of impeacliment, and all had invested them with the powers and attributes of courts. They were universally held to be courts. 'J"he Con- stitution invests the Senate with the so/e power to try all impeachments. To try is to examine a case judicially by the rules of law, and to apply them to the legal evidence taken in the trial, and to render the judgment of the law upon the claims of the parties according to the evidence. The phrases '"to try," "tried,'" " convicted," " conviction," and "judgment" are all used in the Constitution in connection with impeachment and the proceedings in it. Those words, in connection with their context, establish, organize, and describe a court; and as applied to the Senate necessarily constitute it a court with jurisdiction to try all cases of impeachment. The Senate now and for this occasion is a court of impeachment for the trial of the Pres- ident of the United States, and, like all other courts, is bound by the law and the evidence properly applicable to the case. The other novel position of the prosecution, that on this trial the Senate " isa law to itself," is still more extraordinary. The power con- ferred by the Constitution on the Senate when trying impeachments is limited and wholly judicial, and the idea of combining with it any legislative power whatever is not only without any warrant, but is in direct hostility to the fundamental principle of our Government, which separates and makes mutually impassa- ble all its legislative and judicial power. But the position that the Senate, when trying an impeachment, is "a law to itself," is bound by no law, may decide the case as it wills, is '^A ^A^. illimitable and absolute in the performance of special, restricted, judicial functions in a limited government, is revoltingly absurd. On the trial of any impfachment the Senate has no more authority to make or disregard law than it has to make or disregard facts: and it would be as legitimate and jiroper and decor- ous for the Managers, in rt;lation to the evi- dence in this case, to announce to the Senate, "You are witnesses to yourselves" as "You are a law to yourselves." No court has any right or power to make or disregard either law or evidence in the trial of any case; and a court which would act upon and avow that rule of conduct would be execrated by man- kind. There is a particular and empliatic con- trary obligation on this court, for each one of its members has individually made a solemn appeal to Cod "that in all things appertain- ing to the trial of the impeachment of Andrew Johnson, President of the United States, now pending, he will do impartial justice accord- ing to the Constitution and the laws." One of the leading and inflexible laws which bind this court is embodied in the Constitution in these words: "No person shall be removed from office but on imiiertchment for and conviction of treason, bribery, or other high crimes and misdemeanors." That is the category of all impeachable of- fenses, and they must be acts declared by t lie law of the United States to be treason or bribery, or some other offense which it denominates a " hij^h crime or misdemeanor." The laws which define impeachable offenses may be the Constitution, or acts of Congress, or the com- mon law, or some other code, if adopted either by the Constitution or act of Congress. No common- law offense, as such merely, can sus- tain the impeachment of any officer; but to have that authority, it must have become a part of the law of the United States by being adopted by the Constitution or some act of Congress, and would have operation and effect only to the extent that it was consistent with the provis- ions, principles, and general spirit of the Con- stitution. No respectable authority has ever main- tained that all offenses merely against the common law, or merely against public morals or decency were impeachable under our Con- stitution. Story has argued, in support of the position, that some offenses against the com- mon law, and not made so by act of Congress, are impeachable; but he states his premises so generally and vaguely that it is impossible to obtain a full and clear comprehension of his meaning. He neither asserts the broad propositioti that alt common-law offenses are impeachable, nor does he attempt to define or descriije generally those that are ; but contents himself with the position, vaguely and hesitat- ingly taken and maintained, tiiat tliere are com- mon-law offenses wiiich are ofVenses against the United States and which are impeachable ; but how or where or by what language of the Con- stitution, or law of Congress they become of- fenses against the United States he does not attempt to show. But he distinctly admits that to be impeachable the offense must be against the United States. The idea of jirosecuting and punishing an act as an offense, which no law has made ati offense, all must reject. Treason, hribery, high crime';, and misdemeanors are technical terms, found in the common law, and that express certain classes of offenses. But the common law, in whole or part, is not necessarily, or per se. the law of the United States, and to become so must be adopted by the Constitu- tion or an act of Congress, and not otherwise. There is no provision or words in the Consti- tution which expressly or by implication adopts the common law. When it was before the conventions of the States on the question of their ratification of it, that it did not adopt the common law was frequently and strenuously objected to, especially in the convention of Virginia; and no one denied the truth of that position. The courts, Federal and State, and the profession generally, have up to the pres- ent time held that there is no adoption of the common law by the Constitution of the United States, and there never has been any by act of Congress. But this precise question has been decided by the Supreme Court in the negative, and more than once. Hudson & Goodwin were indicted under the common law, in the circuit court of the district of Connecticut, foralibel against the Government of the United States ; and the case was taken up to the Supreme Court, which decided without any announced difference of opinion among its members, and with the full approbation of I'inckney, Attorney General, that the courts of the United States have no common law jurisdiction in cases of libel or any other crimes against the United States ; but, that b}* the principles of general law, they have the power to fine for contempt, to imprison for contumacy, and to enforce tiie observance of their orders, &c.; that the legis- lative authority of the Union must first make an act a rrme, afSx a punishment to it, and decliire the court that shall have jurisdiction. — (7 Cranch, 32.) 1'lie court, in the case of the United States vs. Coolidge, (1 Wharton, 41;'),). being an indictment under the common law, for rescuing a prize at sea, recognized the authority of the previous case, and dismissed the indictment. Judge Story sat in both cases, and was the only judge who expressed a dissent in the latter case from the ruling of thatcourt. The common law, in whole or part, has been adopted by the constitutions or statutes of most of the States; but in I^ouisiana it has never been made to supersede the civil law, nor the Partidiis in Florida. The courts of the United States recognize and adopt, not the criminal, but the civil portion of the common law, gen- erally to the extent to which it has been ap- propriated by a State, in all cases arising in that State within their jurisdiction ; but not as the common law, norasthe lawofihe United States, but as the law of the particular State. In i States that have not ap[)ropriate(l the common law in whole or part, the United States courts adopt such other law generally as they have ' established for the government of cases arising in them resiiectively. But this adoption by the ' courts of the United Slates of the laws of the j States never extends to crimiiuil or ppual cases, j but is restricted to those of a civil nature. No State ever executes in any form tlie penal laws • of another State, and the United States only j their own penal laws, and they exist in no other | form than acts of Congress. I The State of Maryland adopted the common ■ law, and on the orgatiization of the District of ! Columbia, Congress recognized and continued the laws of that State in so much of it as had been ceded by Maryland. But the laws so adopted b}' Congress were local to ihe Mary- land portion of the District; they did not ex- tend to the part of it ceded by the State of ^'^irginia, in which Congress adopted and con- tinued in the same way the laws of Virginia. As the laws of each State are local and dis- tinctive, so are the laws of ]\Iaryland and Virginia which were adopted by Congress for the District of Columbia on its organization, local aad distinctive to the portions of the District that were ceded by those States re- spectively. Treason, bribery, and other offenses of the nature of high crimes and misdemeanors, to be impeachal)le, must be crimes against the general law of the United States, and punish- able in their courts of the localities where committed. Thus, treason against the United * States is an impeachable offense, whether it be committed in any State or Territory, or the District of Columbia; and so of any other act to be impeachable, it must be an offense by the laws of the Uuiied States, if perpetrated any- where within its boundary. That an act done in the portion of tliis District, ceded by the State of Maryland, would be an impeachable offense, and a siu)ilar act done in any place beside in the United States, would not be im- peachable, is sustained by neither law nor reason. Such an offense would be against the District of Columbia, not against the Unite:! States. The law of inipeacliment is unirorni and general, not various and local, and it has no phase restricted to the District of Columbia as has been assumed by the prosecution. Then, besides treason and Ijriljery, which are impeachable by the Constitution, to make any otiier act an impeachable offense it must not only be defined and declared to be an of- fense, but it must be stamped as a high crime or misdemeanor by an act of Congress. The words " high crimes and misdemeanors" do not define and create any offense, but express, generally and vaguely, criminal nature ; and of themselves could not be made to sustain an indictment or other proceeding for any offense whatever; but a law must define an offense, and afK.K one of those terms to it, to tnake it a constitutional ground of impeachment^ And i^is is not all; the offense in its nature must have the type of heinous moral delinquency, or grave political viciousness, to make ari' officer committing it amena!)le to so weighty and unfrequent a responsibility as impeach- ment. He may have been guilty of a viola- tion of the Salifiath or of profane swearing, or of breaches of tiie mere forms of law: and if they had been declared offenses by act of Congress, with the prefix of " high crime" or "high misdemeanor" attached to them, they would not be impeachable offenses. They would be too trival, too much wanting in weight and State importance to evoke so grave, so great a remedy. Nor would any crime or offense whatever against a State, or against religion or morality, be a cause for impeach- ment, unless such an act had been previously declared by a law of Congress to be a high crime or a high viisdeineaiior, and was in its character of deep turpitude. it results from this view of the law of im- peachment that, ^s none of the articles against the President charge him with treason or brib- ery, which are made impeachable offenses by the Constitution, they, or some one of them, must allege against him the doing of an act or acts which a law of Congress has declared to be an offense against the United States, and denominated it to be, and in its vicious nature it must be, a high crime or high misdemeanor, and that the President did that act with a criminal intent to violate the law, to authorize this court to convict him and ju-onounce judg- ment that he be removed from office. I will now proceed to the examination oCthe offenses charged in the several articles. i^The first charges the President with the comnfission of a high misdemeanor in having sent a letter to Edwin M. Stanton, Secretary of the De- partment of War, dismissing hiin from office while the Senate was in session, in violation of the act of Congress "to regulate the tenure of certain civil ofhces. " Article two charges the President with the commission of a high misdemeanor, in having delivered his letter to Lorenzo Thomas direct- ing him to assume possession of the War De- partment, and to perform its duties ad interim, the Senate being then in sessi(ui, and without its advice and consent, there being no vacancy in the office of Secretary of the Department of War, in violation of his oath of otfice. the Constitution of the United States, and the act of Congress aforesaid. Article four charges the President of unlaw- fully conspiring with Lorenzo I'homas, with intent, by intimidation and threats, to prevent Edwin M. Stanton, Secretary of War, from holding said office, in violation of the Con- stitution of the United States and the "act to define and punish certain conspiracies," whereby he committed a high crime in ottice. Article six charges the l-'resideut of having conspired with Lorenzo Thomas, l>y force, to seize, take, and possess tlie pro])erty of the United States, in the Department of War, in violation of the civil office tenure act, whereby he committed a high crime in office. The third, tit'th, seventh, and eighth articles charge the same matter, in somewhat different form, as is embodied in the other four articles; and I propose to consider the charges of the whole eight as growing out of the act of the President in sending his letter to Stanton removing him from the office of Secretary of War, and his letter to Thomas to take charge ad interim of it. Those two letters compre- hend the substance of all the offenses charged against the President in the first eight articles. The ninth article charges the President, as Commander-in-Chief of the Army, of having attempted to induce General Emory, an army officer, to disobey the law of Congress requiring army orders from the President, or Secretary of War, to be transmitted through the General of the Army, and was guilty thereby of a high misdemeanor in office. To this article three answers may be made : 1. The act does not make an attempt to in- duce a military officer to disobey it, whether committed by the President or other person, any offense. 1. The evidence not only does not sustain, but disproves that charge against the President. 3. If the charge had been sustained by the proof, the President, as Commander-in-Chief, has the absolute and unquestionable right to issue military orders directly, and without the intervention of another officer, to any officer or soldier whatever ; and the provision of the act on which tliis article is based, is an un- constitutional and llagitious attempt by Con- gress to subordinate, in a measure, the Com- mander-in-Chief to the General of the Army. The tenth article is based wholly on pas- sages taken from several public speeches made by the President, not in his official character but as a private citizen, to assembled crowds of the people, by whom he was called out and urged to address them. Whatever of improper matter, manner, or spirit are in those public ad- dresses was provoked by gross insults then of- fered to him, which, though not a justification, is much palliation. The Presidentwas then exer- cising a right which our fathers held inviola- ble, and which they intended should never be invaded, and for the protection of which they made this special amendment to the Consti- tution : "Congress shall make no law abridging the free- dom of speech or the press." For the Senate, as a court of impeachment, to set up to be "a law to itself," and impeach the President as guilty of a high crime and misdemeanor for exercising a liberty which the founders of our Government deemed so valuable, so necessary to the preservation of their freedom, as to declare in their funda- m.ental law should never be abridged, would violate that fundamental law and shock the free spirit of America. The basing of an article of impeachment on those speeches of the President, is calculated to bring down upon the whole proceeding the suspicion and revul* sion of a I'reo people, and it ought to be dis' missed from this court as containing no im- peachable matter. The eleventh article charges that Andrew Johnson, Presii'ent of the United States, v/as guilty of a hig!i misdemeanor in declaring and affirming in substance " that the Thirty- Ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same, but, on the contrary, was a Congress of only part of the States." This is not the language proved in the case to have been used by the President on any occasion ; and if he had used it, he could not be impeached for it, because there is no law which makes the use of such language by the President, or any person, a high crime or misdemeanor or any offense, and any act of Congress declaring it to be an offense would be unconstitutional and void as abridging the freedom of speech. This article also charges — " That thesaid Andrew Johnson, President of the United States, did, unlawfully and in disregard of the requirement of the Constitution that he should take care that the laws he faithfully executed, attempt to prevent the execution of an act entitled 'An act regulating the tenure of certain civil offices,' by unlawfully devising and contriving means by which he should prevent Edwin M.Stanton from forthwith resuming the func'ions of the office of Secretary for the Department of War. notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stanton from said office." To this charge it may be answered — it is made in terms too general and vague to require any answer — that the unlawful means which the President devised and contrived to prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary of War, are not described or set out by any language what- ever ; and that act or any law of Congress does not make the devising or contriving of any means to prevent Edwin M. Stanton or any other civil officer whom the President has re- moved from office, and in whose removal the Senate has refused to concur, from resuming the duties of the office from which he has been so removed, a high crime or misdemeanor, or any offense ; and said civil-otfice-tenure bill,, so far as it restricts the President's power to remove s^id Stanton, is not consistent with, but in derogation of, the Constitution, and null and void. And the eleventh article charges also that Andrew Johnson, President of the United States, devised and contrived other unlawful means to prevent the execution of an act en- titled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868, and for otiier purposes;" and also to prevent the execution of an act enti- tled "An act to provide for the more efficient government of the rebel States. " Upon this last charge it ma}' be observed — there is no description or facts setting out the means which the President devised and contrived to 5 prevent the execution of either of the acts therein referred to — that the devising and con- triving means to prevent the execution of said acts, or either of them, is not made a high crime or misdemeanor by them, or any law ; that there is no evidence tiiat he did devise and contrive any means to prevent the execution of said acts, or either of them ; and that the act -first referred to, in the part which the Presi- dent is charged to have violated, and the last act, wholly, are unconstitutional, null, and void. Thus, it is shown on these several grounds, that there is nothing in the eleventh article on which the President, can be im- peached. Some of the articles charge the President with the commission of liigh misdemeanors, and others of high crimes in the violation of his otticial oath and of the Constitution gen- erally. The Constitution has no provision declaring a violation of any of its provisions to be a crime ; that is a function of the legis- lative power, and it has passed no law to make violations of the Constitution, or of otHcial oaths by the President, or any other officers crimes. Thearticlesof impeachment seem to be drawn with studied looseness, duplicity, and vague- ness, as with the purpose to mislead; certain it is, if their matter charged to be criminal bad been separately, concisely, and distinctly stated, this court, and especially its many mem- bers who are not lawyers, would have had a much more ready comprehension of it. I will not take up and consider the other articles seriatim, but will group their matter under three heads : 1. 'J'he removal of Mr. Stanton from the office of Secretary of War ; '2. the des- ignation of General Thomas to take charge of that otfice ad interim; 3. the alleged conspi- racies of the President with Thomas to pre- vent by intimidation and i'orce Stanton from acting as Secretary of War, and to take pos- ses.sion of the property of the United States in his custody. The letter of the President to Mr. Stanton, informing him that he was thereby removed from othce as Secretary of War, is charged to be a high misdemeanor, and in vio- lation of the act to regulate the tenure of cer- tain civil otiices. The fifth and sixth sections of that act are the only parts of it which define and create any offenses, and I will quote them both in their order: / "If any person shall, contrary to the provisions of ■> this act, accept any appointment to. or eiiii'loyment in any office, or shall hold or exercise, or attt'iupt to hold or exercise any such office or cinployinent. he shall be deemed, and is hereby declared to be guilty of a high misdemeanor," &.o. This provision might apply to General Thomas, the ad interim employe, but cannot include the President. The sixth section enacts — " Thatevery removal, appointment, or employment made, had, or exercis. d, contrary to the provisions of this act, and the making, signing, scaling, coun- tersigning, or issuing of any commission or letter of authority for or in respect to jiny such ai)pointment or employment, ."shall be deemed, and hereby are declared to be, high misdemeanors," -Ate. The President's letter to Mr. Stanton is not, in fact, his removal from office, though it was intended to procure it; but he refused obedi- ence to it, persisted in holding the office of Secretary of War, and still continues in it and the actual discharge of its duties. The Presi- dent's letter to him did not remove him in fact, and if the civil-office-tenure act be constitu- tional it did not in law ; and he is now. and has been ever since, notwithstanding the Prcsidetit's letter, dismissing him, in fact and law, iii office. It is contended by the prosecution that the letter of dismission is against the Constitution and the law, and has no legal effect wh.'itever. Stanton was at its date in fact in possession of the office and performing its duties, and has so continued to the present time, and on this theory of the prosecution there has l)een no removal of him in fact or in law. And if that theory be unsound, and the President have the power by the Constitution to remove him, and the act of Congress proposing to restrict that power is consequently void, his removal was and is de jure valid. In one aspect there is a removal proper and constitutional; in the other there is no removal of Mr. Stanton. But these are tiie great questions in the case ? Is the first section of the civil-officetenure act in cotiflict with the Constitution, void, and of no effect ? Does that section cover the case of the removal of Mr. Stanton? I>id the President, in writing the letter of removal from office to Mr. Stanton, and the letter to General Thomas, directing him to take charge of the office ad interim, willfully and with criminal intent violate the civil-office-tenure bill? These propositions comprehend thesubstance matter of the first eight articles. The first section of that act is in these words: "That every person holding anj' civil olfice to which he shall have been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly Hualificd. escei)t as hereinafrer provided : l'iiio\ili:il, Thatthe Secretary of State, of theTroasury, ot War, of the Navy, and of the Interior, the I'ostniasttr (ieneral and the Attorney General shall hold their offices res|)ectively lor and during the term of the President by whom they rnay^have been ai^pointcd. and for one month thereafter; subject to removal by ami with the advice and consent of the Senate." The Constitution creates a Cong"ress in which it vests all the legislative power of the (ioverii- ment of the United States; a President in whom it vests all the executive power, and a ■Supreme Court, and authorizes inferior courts to be established by Congress, in which it vests all the judicial power — except that it provides that the Senate shall constitute a court of im- peachtnent, with jurisdiction to try all civil officers who might be impeached by the House of liepresentatlves. and to adjudge amotion from and disqualification to hold office. iNeiilic-r department can rightfully, or without usurpa- tion exercise any powers which the Constita- 6 tion lias vested in oitlior of the other depart- ments. Congress has the power, and is bound in duty to pass all laws necessary and proper to enable the President to execute the powers intrusted to him by the Constitution, and with- out wliich le,i(islation there are many he could not execute, but it cannot confer on him any additional power, nor can it divest him of any. He forms a separate and coiirdinate depart- ment of the Government with Congress as another, and the courts as the third, and each derive ail their powers from the Constitution alone. Neither is subordinate to the others, though the powers vested in Congress are the most various, extensive, vigorous, and popu- lar, and necessarily it is the most aggressive and etlective in its aggressions upon the other departments; the judiciary is the least so, though the inevitable tendency of all power, however lodged, is to augment itself. The power of appointment to office exists necessarily in all Governments, and is of an executive nature ; and if the Constitution had contained no particular provision on this subject its language, '' the executive power shall be V(?sted in a President of the United States of America,'" would have imported the power of appointing to office, a«d by implication would have vested it wholly in the President. But the eflPect of this general language is qualified by a special provision: " And he [the President] shall nominate, and by and with the advice and consent of the Senate shall ap- point, embassadors," &c. This is restrictive and exceptional of the gen- eral power of ajjpointment, previously by im- plication conferred on the President, and has no other operation than what is expressed in it3words,and they beingexceptional noimplied power results from them against the general grant of power from which they make an excep- tion. But the power of removal from office also, as necessarily as the power of appoint- ment, exists in all Governments, and is no less an executive power. It is located somewhere in the Government of the United States, but being an executive power it cannot be in Con- gress, for legislative powers only are vested in that body. It is not established, or vested by any express or special provision of the Consti- tution, but is by the general language: "The executive power shall be vested in a Presi- dent of the United States of America." j The Constitution leaves the power of re- j »Ho^•a/just as this general provision vests it, with the President alone. . The power of Congress to make all laws which shall be necessary and proper for carrying into execution its enumer- ated powers, and all other powers vested by the Constitution in the Government of the United States, or any department or officer thereof, is purely a legislative power; and gives no au- tliority to assume or interfere with any ))owers of the President, or the judicial department. ' Instead of being a power to assail them, its ! legitimate and literal office is to uphold their powers and to give facilities in their execution. | That, or any other provision of the Constitu- tion gives to Congress no warrant or pretext to interfere with the executive power of removal from office, vested by the Constitution in the President alone. The power of removal and the power of appointment to office, though both executive, are in their nature distinct and independent of each other. One, the power of appointment, was treated specially and separately front the other in the Constitution, it as-sociating the Senate with the President in its exercise. But for this particular regulation of the power ot appointment, it is most probable that no question as to the other distinct power of re- moval from office would ever have been made ; and that all would have silently con- ceded that both powers being executive in their character, and all the executive power of the Government having been vested !>y the Constitution in the President, they properly appertained to him alone, and he would never have been challenged in the sole and exclusive exercise of either. But however that may be, the truth of this proposition cannot be suc- cessfully controverted : the provision of the Constitution associating the Senate with the President in t4ie power of apjjoiniment, does not invest it with the same, or any connection with the power of removal : or authorize Con- gress to pass the civil -office-tenure act, or any other act that would impair the President's sole power and right to exercise it. But the whole subject of the power of re- moval from office came up for consideration in the First Congress, on the organization of the Department of Foreign Affairs, in 178y, and elicited a debate of great ability among the ablest men of the body, many of whom had been members of the Convention which framed the Constitution. Congress was much divided on the subject, but a majority of bt)th Houses sustained the position that the Consti- tution conferred on the President the power to remove from office, and the contending par- ties made a compromise, by v/hich the act or- ganizing the Department recognized the power of the President to remove the head of this Department, in this language: "The chief clerk, whenever the prinei]>al officer shall be removed from ofliee by the I'resident of the United Stiites, or in any other case of vacancy, shall, during: such vacancy, have the charge and custody of all records, books, and papers appertaining to the said Department." The supporters of the exclusive power of the President were opposed to any language being used in the act that seemed to confer this power on the President, and its op|ionents accepted language that conceded and recog- nized the Presidei>t's power of removal with- out expressly deducing it from the Const if u tion. 'i'he act establishing the Department of War, with a i)rovision in the same language recog- nizing the power of the President to remove the Secretary, was passed at a subsequent day of the same session, with but little and iio serious opposition. Both those acts formally admit the sole power of the President to remove the heads of the respective Departments, but neither of them contains any language to confer that power on tiie President. The supporters of the princi- Ele that the Constitution vested it solely in im rejected from the bill organizing the Department of Foreign Affairs ail language that seemed to confer it upon the President, and claimed and determined to maintain it as one of his powers solely from the Constitution ; and the opponents of this principle, being will- ing to concede the power to the President, if the acts did not expressly state the jiower to jje conferred on him by the Constitution, tliey were passed in their existing form, recognizing it as a presidential power to remove both Sec- retaries. The acts were not intended to confer tills power on the President; they have no language whatever to that effect, yet they con- cede that he possessed it; and he could derive it only from the Constitution. This was as certain an assertion and establishment of the sole constitutional power of the President to remove from office, as if it had been expressed in the most direct terms; and no attempt has ever, before tiie passage of the civil office- tenure bill, been made in Congress to disturb this question as tlius settled. From that time, every President has claimed and exercised the sole power of removal at all times as an executive power conferred by the Constitution. The great commentators on it, Kent, Story, and Rawle. have treated this power as belonging to the President alone by the provisions and effect of the Constitution itself, settled by the acts of Congress of 178'.), the uniform and unchallenged practice of the Government, and the general acquiescence of tiie country. The Su]ireme Court has repeat- edly, and without doubt or hesitation, recog- nized it as an established constitutional prin- ciple ; and Chief Justice Marshall many times, in his opinions, refers to it, as he does to the other and unquestioned powers of the Presi- dent. Hamilton and Madison were among its great authors and firm defenders ; it was con- ceded to be a settled principle by Clay, Cal- houn, Benton, Wright. Clayton, and all the statesmen of America down to the passage of the civil-rights bill ; and Mr. Webster main- tained, adhered to it, and advocated its exer- cise, while the Senate was in session and at all times, as Secretary of State under Presi- dent Tyler. No attempt had ever before been made to arrest or qualify its unconditional ex- ercise by the President, as well when the Sen- ate was in session as when it was not. The reason of America, guided by principle, au- thority, and experience, was unwilling to divest, unsettle, or change this presid;^ntial power by act of Congress or alteration of the Constitution because of being satisKed that it was essentially of the nature of an executive power and absolutely necessary to enable the President to perform his greatest duty, to see that the laws be faithfully executed. If a con- troverted constitutional question can ever be settled, the power of the President to remove from office at his own will has been beyond further legitimate question. The sixth section of the civil-office-tenure act before quoted declares that — "Every removal, .Tiipointinent, or cmploytnont, made, l/iul, or exercisfd contriiiy to the provisions of tliis act, and the makiiis.', siKnins. se;iliiig, or couiitersipniriK of any coininissiou or letter of au- thority for or in respect to any such appointment or etnphiyinent, shall be deemed, and are hereby de- clared to be, high misdemeanors," &c. But, if the Constitution invests thePresident with the sole and exclusive power to remove all the officers referred to in said act, his exer- cise of that power at all times is legitimate and makes a vacancy in the office, which liis duty requires him to fill according to the Constitu- tion and the laws; and an actof Congress which by its terms so provides as to strip him of that power, in whole or part, and to make his per- formance of duty after its exercise a crime, is unconstitutional and void. The exercise of a constitutional power and the performance of constitutional duty by the President can be made neither criminal nor punishable either by impeachment, or fine and imprisonment. If President .Johnson has from the Constitu- tion the sole power to remove from olfice, his letter to Mr. Stanton dismissing him from the office of Secretary of War could not be made a crime by any act which Congress could pass; and it produced a vacancy in the office which his action, in some form, was necessary to fill; and, in the meantime, it was his duty to supply the vacancy in the office temporarily according to law. Very soon after the Government went into operation, vacancies by death and otherwise occurred in various offices; and, whether it was during the recess or session of the Senate, the President was frequently not prepared to fill them properly by appointment and commis- sions to terminate at the end of its next ensu- ing session, or to make a nomination to it for its advice and consent, from a want of a knowl- edge of men, and many other causes. To meet this temporary exigence Congress, in an act passed in ^lay, 17'J2, made this provision: "That in case of the death, absence from the seat of Government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, or of any officer of either of said Departments whose appointment is not in the head tliereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for tlie Pres- ident 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 shall be appointed." This law is strictly within the power of Con- gress : "To make all laws which shall be necessary and proper for carryinpr into execution the powers vested by the Constitution in the President." It confers no new power upon him ; all the executive power of tlie Government had been vested in him by the Constitution, and this act only furnished him facilities for its proper and convenient execution. 8 But this law was essentially defective ; it was limited to the three Departments Krst or- ganized — State, Treasury, and War — and to vacancies in otBce occasioned by death, ab- sence from the seat of Government, or sick- ness. Other legislation was necessary, and in February, 1795, Congress passed this other law : "That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secre- tary of the Department of War, or of any otficer of either of tlie said Departments whose ajipointment is not in tlie head thereof, whereby they cannot per- form the duties of their respective offices, it shall be lawful for tlie President of the United ^states, in case he shall think it necessary, to authorize am/ person or persons, at his discretion, to perform the duties of said respective offices, until a successor be ap- pointed or such vacancy filled: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer period than six months." It will be observed, that this second law covers the whole ground, and more, occupied by the first; it applies to the same three De- partments, none others being then organized; but it is extended beyond vacancies occasioned by death, absence from the seat of Govern-" ment, or sickness, and provides for all va- cancies^ from lohatever cuudes produced, and limits the continuance of such supplies to six months. But this legislation in time became incom- plete, as it did not provide for this supply of temporary service in the Navy, Post Office, and Interior Departments, and the office of Attorney General, when vacancies should occur in them. But, nevertheless, in consid- eration of the special requisition of tlie Consti- tution, that the President should see that the laws be faithfully executed, that all the execu- tive power of the Government was vested in him, and from the necessity of the case, every President from the passage of the first act of 1792 exercised the power of designating some person for the supply temporarily, when vacan- ciesoccurred, notoiily in the Foreign, Treasury, and War Dejiartments, Ijut also in all the other Departments; and there are many instances of such appointments spreading over that whole period. These temporary appointments were not provided for by tlie Constitution, but from time to time by the laws of Congress which regulated them ; and they were in truth not appointments to office, but a designation of persons to supply the places and perform the duties temporarily of otlices, in which va- cancies occurred, until they could be filled by regular appointments ; and their necessity and validity were questioned by no one. But in February, 18()3, Montgomery Blair, Postmaster General, resigned his office during the session of the Senate, and President Lin- coln designated an Assistant Postmaster Gen- eral to perform the duties ad interim of Post- master General, and afterwards sent a special message to Congress, then in session, asking its attention to the fact, that the laws of Congress in relation to such appointments, applied only to the Foreign, Treasury, and War Depart- ments, and recommended the passage of an act to extend them to the other Departments uf the Government. Thereupon Congress passed the act containing these provisions: " That in case of the death, resignation, absence from the seat of Government, or sickness of the head of any executive Department uf the Government, or of any officer of either of said Departments whose ap- pointment 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 heshallthinkitnecessary, to authorize the headof any other executive Department, or other otficer in either of said Departments whose appoint- ment 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 by sickness shall cease: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer period than si.x months. "Sec 2. And be it further enucied. That all acts or parts of acts inconsistent with the provisions of this act are hereby repealed." I have embodied in this opinion the whole of the three acts of Congress, authorizing the temporary supply, or ad i/tparent on the face of the civil-office-tenure bill : 1. That all officers appointed by and with the advice and consent of the Senate should hold their places until it should approve their removal. 2. 'i'hat the Cabinet officers of the President should be so far exceptional to this rule, that all Presi- dents should have the privilege and the power to make one selection for eacli of those offices. 3. That, having made a choice, he shall be held to it until the Senate shall have given him its consent to make another choice. This arrangement in relation to the President and his Cabinet was, doubtless, made upon some reasons ; and all concede that it applies to every 11 President chosen by the Electoral College ; and what reasons are there that make it necessary and proper for the administration of a Presi- dent so elected that do not apply with equal force to one upon wliom the Constitution has devolved the office on the death of a President with whom he was elected to the Vice Presi- dency? 'J'he plain letter and meaning of the Consiitution and this act of Congress, assure this right to President Johnson, and it cannot be wrested from him without doing violence to both Consliluiion and law. If he had given in hisadliesion, and plainly and palpably exercised this power ibr the benefit of the party which passed the law, by removing one of his Secre- taries who is opposed to that party, and had, nominated to the place one of their faithful and trusted men, would his right to make the re- moval have been questioned? After the best inquiry of which I am capa- ble, 1 think these positions to be true beyond reasonable doubt: 1. That the President, by the well-settled principle of the Constitution, possesses, as one of his executive powers, the sole and exclusive power of removing all officers, as well when the Senate is in session as when it is not. 2. 1'hat the provision of the civil-office-tenure act, which requires the President to report to the Senate his removal of certain officers, and its advice and concurrence to make the re- moval complete and effective, is in derogation of that constitutional power of the President, and is, therefore, unconstitutional and void. 3. That the case of the removal of Stanton does not come within the provision, spirit, and meaning of the civil-office-tenure act. 4. That President .Johnson had the power and the right to remove Stanton as Secretary of War ; and having removed him, and thereby caused a vacancy, he had the power, under the act of 1795, and it was his duty to supply that vacancy temporarily ; and his designation of General Thomas to take charge of the office ad interim was a proper exercise of power. Consequently neither the removal of Stanton, nor the ad interim appointment of Thomas by President Johnson, wasan impeachable offense, but a legitimate exercise of power. There is then loft for my examination, only those articles of impeachment which embrace the matter of the conspiracies with General Thomas charged against the President. There is but one law of Congress ngainst conspira- cies, which was passed in 18(31, and is in these words : " That if two or more persons within any State or Territory of the United States shail conspire to- gethiT t>) overtlirow or to i)ut down or to destroy by force theGovernment of tlie United State.'*, or to levy war asainst the United States, or to oppose by force tbeaullioiityof theGoverinueutof the United States, or by force to prevent, hiniier. or delay the execu- tion of any law of the United States, or by foree to seize, take, or possess any property of the United States asjainst tlic will or contrary to tfie authority of the United States, or by forec or intimidation or threats to prevent any person from accetiting or hold- ing liny ofSoe or trust or place of confidence under the United States; each and every person so olTend- ing shall be Kuilty of a hish crime, and upon con- viction thereof in any district or circuit court of tiie United State."" InivinK jurisdiction thereof, or district or supreme court ot any Territory of the United States having jurisdiction tliereof, shall be jiuiiislieil by a fine not less than S'lOO and not more than !?■■"', 000, or by imprisonment, with' or without hard labor, as the court shall determine, for a period not less than six montlis nor greater tlian six years, or by both such tine and imprisonment." This was a war mea.sHre passed at the be- ginning of the rebellion, and was directed against rebels and traitors, and their abettors at that time and in the future. It was never intended, and is a perversion of that law to at- tempt to apply it to the case of a removal by the President of an oiKcer of the Government, and his direction to the person whom he had designated to supply temporarily the vacancy to take possession of the office, and his applica- tion to the person removed to turn over to him the books, property, «fcc., appertaining to the office. All the offenses enacted by that law re- quire, as an essential constituent of them, that the persons committing them shall conspire together to do the several acts which are made criminal with force or intimidation or threats; and in the absence of that purjiose there is no crime. The charges against the President are, in the fourth article, that he did unlawfully con- spire with one Lorenzo Thomas, and with other persons to the Hotise of Representatives un- known, with intent, by intimidation and threats, unlawfully to hinder and prevent Edwin M. Stanton, Secretary of War, from holding said office; in the fifth article, that he did unlaw- fully conspire with one Lorenzo Thomas, and with other persons to the House of liepresent- atives unknown, to prevent and hinder the execution of an act entitled "An act regulating the tenure of certain civil offices;' in the sixth article, that he did unlawfully conspire with one Lorenzo Thomas by force to seize, take, and possess the property of the United States in the Department of War ; in the seventh arti- cle, that he did unlawfully conspire with one Lorenzo Thomas with intent unlawfully to seize, take, and possess the property of the United States in the Department of War. As to the fifth and seventh articles, they charge no intent or purpose on the part of the President of doing the things therein specified with force, intimidation, or threats; which being of the essence of said offenses and omit- ted, no offenses are charged; and as to those articles, and also the fourth and sixth, there is no evidence that the President entered into any conspiracy wjth General Thomas, or any persons, to do the things set forth in said articles; or that he intended, advised, or sanc- tioned the use of any force, intimidation, or threats in doing them. The whole case against the President in connection with the matters charged in those four articles is, that he wrote a letter of the usual tenor to Mr. Stanton, re- moving him from the oflice of Secretary of War, and a letter to General Thomas, notify- 12 inghim of his designation to snpply the vacancy temporarily, and directing him to take charge of tlie oflice and enter upon its duties; all of ■which, by the Constitution and laws, he had the power and the right to do.' 1'here is no evidence that he intended, advised, or sanc- tioned the use of any force, intimidation, or threats in connection with these transactions. 1~liere is nothing in the case to sustain the fourth, fifth, sixth, and seventh articles, and with the others they all fall together. Upon the grounds I have stated I reach the Gonchision, that the defense of the President is full and complete; but there are other grave and weighty reasons why this court should not proceed to his conviction, that I will now pro- ceed to consider. The Senate is sitting as a court of impeach- ment, to try articles preferred by the House of Representatives against the President of the United States. Each member has taken a special oath prescribed by the Constitution, and in these words : "I solemnly swear that in all things appertaining to the trial of the itnpeachment of Andrew Johnson, President of the United States, now pending, I will do impartial justice according to the Constitution and the law : so help me God." None of his acts can be considered but those which are set forth against him in the articles as offenses, and he can be convicted only upon such as are defined and declared by the laws of the United States to be high crimes or misdemeanors, and which are in their nature and essence offenses of that char- acter. This court is bound to try these arti- cles of impeachment by the same laws and rules of evidence, substantially, which would govern an ordinary criminal court on the trial of indictments against Andrew Johnson for the same offenses — except in the matter of judgment against him, which here would be more grievous. I will quote from Blackstone's Commenta- ries a fundamental principle, which is found in all works on criminal law, is recognized in every criminal court in America, and which should guide and control this court in the pend- ing trial: "And as vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act ■without a vicious will is no crime at all. So that to constitute a crime against human laws there must be first a vicious will, and secondly, an unlawful act consequent upon such vicious will." This principle, that to the unlawful act there must attach a criminal intent or purpose, which prompted the commission of the act, is the guiding light of all courts: a person doing the act charged to be a crime, in its absence, might be guilty, but it would be without criminality. The law generally infers the criminal intent from the unlawful act, but it always permits the accused party to show by proof the absence of the criminal intent, which is generally an easier task in relation to offenses merely mala prohibita, than in those which are also mala ee. All the offenses charged against the Pres- ident are merely and strictly mala prohibita. If the civil-office-tenure bill on its face is so ambiguous and uncertain as not to inform an officer of Government possessed of a good common understanding, with reasonable cer- tainty, whether or not it did comprehend the case of Mr. Stanton, atid forbid his removal from office by the President, that act being new and never having received a judicial con- struction ; and Andrew Johnson was under trial on indictment in an ordinary criminal court for the violation of that act, in the re- moval of Mr. Stanton, the court on motion would instruct the jury to acquit. If the question whether that act does not trench on a great constitutional power of the President, and is not therefore void, be one of doubt and difficulty, and President Johnson desired to have that question solved correctly; and to that end consulted the Attorney Gen- eral and all the other members of his Cabinet, and their opinion was unanimous that it was unconstitutional ; and he was counseled by them all, including Mr. Stanton, to veto the act upon that ground, and one of his purposes in removing Mr. Stanton was to make a case for the Supreme Court, in which its constitu- tionality should be decided, universal reason and justice would pronounce, that in writing his letter to Mr. Stanton dismissing him from office, the President had no criminal intent, and did not commit an impeachal)le offense. The evidence on this point which the prose- cution presented, and which was admitted with- out objection, would probably be sufficient with most minds to exculpate the President from all criminal intent; but the most satisfactory proof that could have been made upon it, and which was clearly competent, was the evidence of the members of the Cabinet, which a majority of this court ruled it would not hear. A criminal court would not have excluded this evidence, or, if having done so inadvertently, on con- viction by the jury, it would of its own motion award a new trial. In the face of so grave an error committed by this court, and affecting so materially the defense of the respondent, it would be a great wrong to him and the country to proceed to his conviction. The powers of our Government are care- fully and wisely divided out among the three departments, and the lines of separation are in some cases so indistinct that it is difficult to avoid overstepping them. A just and patriotic President would not willfully infringe the con- stitutional powers and rights of Congress ; nor would that body, if Ciomposed of such men, make any intentional aggression upon those confided to the President. I have observed no such disposition on the part of the present ex- ecutive head ; and the question between him and Congress growing out of the civil-otfice- tenure bill, he desired to have submitted to and decided by the Supreme Court, as has been satisfactorily proved in this case. He took legal advice, and was informed that under ex- isting laws he could not have any proceeding instituted to determine it, which could be taken 13 to the Supreme Court and be tried by it until about the time or after the expiration of his presidential term. He had no remedy by which be could test the question in a reasonable time. Congress and the Presidentboth should have desired and have sought the settlement of this, and all other questions of controverted power betv/een them, by the judgment of that tribunal which the Constitution bad designed for that purpose. In a few hours of any day. Congress could have framed and passed a law which would have enabled the Supreme Court summarily to have got possession of and to decide promptly this, and all other questions between it and the President ; and such settle- ment of the disputed boundaries of their re- spective powers, would have been accepted by the people generally, and as to those ques- tions would have given repose to the country. But instead of such wise and peaceful legisla- tion, Congress was exhausting all its ingenuity and all its resources to make its aggressions upon the Executive Departments successful and complete ; and so to organize, fetter, and intimidate the Supreme Court, as to prevent it from interfering to perform its great office of settling such questions by the Constitution, law, and reason. But Mr. Stanton sued out a criminal warrant against General Thomas to protect himself against intrusion into the War Office ; and when the President heard of this proceeding he ex- pressed his gratification, knowing that the question of the validity of his removal of Mr. Stanton would come up on the hearing of a writ of habeas corpus that might be sued out by General Thomas. The latter executed bond ■with surety to appear before Judge Cartter to answer the complaint of Stanton, and at the appointed time appeared before the Judge with his surety, who surrendered him to the court. It was the plain duty of Judge Cartter to have ordered General Thomas into the cus- tody of the marshal, or to prison ; but he did neither, because either would have been a re- straint of his liberty and have made a ground for suing out a writ of habeas corpus for a judicial inquiry into the cause of his deten- tion. The case, immediately after hearing by the judge before whom the writ might be re- turned, could be taken to the Supreme Court, heard at once, and the questions of right be- tween Stanton a'nd Thomas to the War Office and the constitutionality of the civil-office- tenure bill, would be before the court for its decision. This was the purpose of Thomas, and by this time it had become apparent ; and the impar- tial and patriotic jndge determined to defeat it by the disregard of his own otKcial duty ; and he refused to order Thomas into custody, and consequently there ceased to be any ground for Thomas to sue out a writ of habeas corpus. Here a corrupt judge revealed himself, and afforded to the House of Representatives an opportunity to impeach him for corruption in office, palpable and flagitious. But it waa their bull that had gored the ox. The purpose and desire of the President, to have the question of the constitutionality of the civil-rights bill decided by the Supreme Court is manifest ; that it, and all other questions be- tween them have not been submitted to that test is due to the default of Congress. But the exclusion of important evidence by this court involves another and very grave error. The Constitution says of impeachment, " No person shall be convicted without the con- currence of two thirds of the members present." Convicted does not mean simphf condemned, lor a man may be condemned of a crime with- out or against evidence; but convicted means proved and determined to be guiltj/. There injiy be condemnation, but cannot be conviction with- out proo/. One of the necessary elements of conviction is evidence, and it might be impos- sible on all the evidence of the defense in a case, and yet practicable and easy upon the residue after excluding a material part of it. The exclusion of material evidence is a part of conviction, and may hn substantially and pracii- calhj the conviction. But conviction is a totality, can exist only in solido, and in all its parts and processes, and as a whole, it requires two thirds of the Senators present. To demand two thirds to convict, and to permit a majority to exclude all or a material part of the evidence which might produce conviction, would not only be a hollow mockery, but an absurdity and con- tradiction. The constitutional rule, which re- quires two thirds to convict, by necessary im- plication, makes the same number necessary to rule out the defendant's evidence, in whole or part, and so produce conviction. If this court, by a majority of its members, had excluded the whole of the defendant's evidence, it would have shocked the country, and there would have been a general exclamation, that a rule of practice which would enable a bare major- ity indirectly to effect what a great constitu- tional principle required two thirds to do, to convict in all cases of impeachment, was both mischievous and unsound. This court should correct this erroneous ruling of an important constitutional principle by its judgment in favor of the President. There are still other cogent considerations against the impeachment of the President, one of the most weighty of which I made at the opening of the trial, and will here restate. This court is not constituted according to the requirements of the Constitution, and, there- fore, is incompetent to try the case before it. The Constitution provides that — "The Senate of the United States shall be com- Eoscd of two Senators from each State, chosen by the egislature thereof for six years; and each rienator shall have one vote." * * * * " JJo State, without its consent, shall be deprived of its equal suftraso in the Senate." • * * * " riic Senate shall have the solo power to try all im- peachment?," &c. Every State has an equal right to have two 14 members of the Senate, and to choose them by her Legishiture, and to organize her gov- ernment and elect that Legislature by her own people, with whom rests her political power, without any dictation or interference by Con- gress. ^^'hon a State has chosen her Senators, and they appl3' at the bar of the Senate for adniissiun as members, it is the right of the State and of her Senators-elect, if they have the qualiKcations required bj' the Constitution, to be admitted, ai;d liiis body cannot, without violating it, keep them out. The Senate has the right to reject an applicant who does not present himself with qualilications, election, and return in conformity to the Constitution, but every one who comes so arrayed is entitled to admission. In time of peace, when there is no rebellion or insurrection in a State against the United States, a majority or any number of the Senate or of the two Houses of Congress have no right or power to deny to such or any State re)iresentation in them ; and its exercise is destructive of the Constitution, and overthrows the Government which it created. Such a power would at all times enable a faction, that hap- pened to hold a majority in the two Houses to mutilate them at will, and control the whole Government by excluding the Senators and Representatives from as many States as might be needful for their purposes. All this has been inaugurated and is in course of successful enactment by the dominant party. When the rebellion was crushed out and those engaged in it made their submission, the Constitution, by its own force, reinstated the States involved in it de jure to their previous position in the Union, with all the rights and duties of the other States. They conformed their constitutions and governments, so far as they had been estranged by secession and rebellion, to the Constitution and Government of the United States, and elected their Senators and Representatives. Congress by many of its laws, the Executive by multitudinous appointments and other acts, and the Supreme Court by hearing all cases coming up from them and allotting its mem- bers to lit)ld circuit courts in them, recognized them as States ; but still the Senate and House persisted in keejiing out their Senators and Representatives. At length Tennessee ex- tended the right of suffrage to her negro popu- lation, and disfranchised a large portion other v/hite men that had been implicated in the rebellion, and forthwith the majority in the two Houses admitted her Senators and Repre- sentatives ; but the other southern States con- tinued to be contumacious on the vital, radical party question of negro suffrage, and therefore were ccmtinued to be denied their great con- stitutional right of representation in the two Houses of Congress. It was thus demonstrated, that the cause of denying to the southern States representation in Congress, in violation of the Constitution, was their noi having conferred the right to vote on their negro population, and that they were to continue'unrepresented until they surrendered that point, or until means could be devised to fasten it upon them. A Senate from which almost one third of its members is excluded, and who, if pres- ent, would probably differ from the nugority of those herein their judgment of this import- ant case, cannot form a constitutional court of impeachment lor its trial. The impeachment of the President of the United States is the arraignment of the execu- tive department of the Government by one branch of the legislative department and its trial by the other. The incongruity of such a responsibility and consequent danger of the ultimate subordination of the executive to the legislative department excited the gravest ap- prehensions of that wisest political sage, Mr. Madison, when the Constitution was being framed. Short of the sword, it is the extreme remedy, and was intended for the worst politi- cal disorders of the executive dej)artment. Nothing but treason, otKcial bribery, or other high crimes and misdemeanors, made so by law, and also in their nature of deep moral turpitude, which are dangerous to the safety of the State, and which palpably disqualify and make unfit an incumbent to remain in the office of President, can justify its applica- tion to him. Cases that do not come up to this measure of delinquency, those who made the Constitution intended should be remedied in the frequency of our elections by the people at the ballot-box, and the public repose and welfare require that they should be referred to that most appropriate tribunal. Impeachment was not intended to be used as an engine to gratify private malice, to avenge disappointed expectations, to forward schemes of personal ambition, to strengthen the meas- ures or continue the power of a party, to pun- ish partisan infidelity, to repress and crush its dissensions, to build up or put down opposing factions. By our system all that sort ot work is to be done in popular canvasses; and to bring the great and extraordinary remedy of impeachment to do any of it, is the vile pros- titution of what was intended to be a rare and august remedy for great evils of state. The impeachment of a President of the United States, for a difference of political policy between him and Congress, is a monstrous perversion of power. Is the present prosecu- tion anything but that? Pre'sident Johnson and Congress agreed in their policy and meas- ures to put down the rebellion, and they were signally successful ; and after it was crushed out these departments of the Government did many formal and important official acts relating to each and all of them engaged in the rebel- lion as States in the Union, and as having the same relations as the other States with the Government of the United States. Those States complied with conditions in- sisted upon both by the President and Con- gress, and by their constitutions and laws they respectively abolished slavei'y, renounced the • jjt I'^ntin 15 principle of secession, repudiated their debts cieuted by their rebellion, and ratified thethir- teenlfi amendment of the Constitution, by which slavery was abolished tliroughoiit the United Stales. For the masses of the people of those Staif's, the President thought all this was sub- mission and expiation enough, and refused to insisi tliat they should, in addition, confer on their late slaves, who in two States exceeded the whites, and in all of them were a large por- tion of the aggregate population, the right of sufiVage, nor would he consent to unite in un- constitutional measures to foice negro suffrage upOH those States. I'his is the real lieud and front of the President's offending: he would not cooperate with the Radicals in their scheme to get possession of and control the govern- ments and all the political power of the south- ern States by the agency of voting negroes against the will of the while people, and to all their unconstitutional measures to effect it he opposed the power with which the Constitution had invested him. A subordinate ground of their ire against the I'lesident was, that to many of the people of ihe southern Slates who were engaged in the rebellion, he extended the magnanimity and clemency of the people of the United States in the exercise of the pardoning power, the noblest of all tlie great powers with which they have intrusted him. But there were no rebels, however vile, tliat were willing to be- come the liegemen of the Piadical party, whose pardon they did not favor; and they have trenched further upon the powers of the Pres- ident by assuming that of pardon, in bills in- trofiuced in both Houses to remove the dis- abilities of a great number of rebels, since become Radicals. But it is time all were pardoned ! Among the many strange posit:ions assumed by the prosecution are : 1. The President has no right to inquire into and act upon his con- clusion that the civil-oilice-tenure act, or any other act of Congress, is unconstitutional. 2. That it was his duty to execute that act with- out any question of its constitutionality. 3. That this court of impeachment has no right or power to inquire into the constitutionality of that act. The latter position is so palpably and flagi- tiously unsound as to deserve no other answer than a simple denial. Tiie others are entitled to some consideration, though they are nega- tived by the Constitution itself, to prove which 1 will quote from it : "This Constitution niul the laws of the United States which shall be m;ule in pii]-sunin:elhcrrof" * * ■'■■ * "shall be the sui)remo law of tiie land; and thejudgesin every State.shall be bound thereby, anything in tfic eonstitutions or laws of any State to the contrary notwiliistiuiilinff." "Tlie Senators and Reruesentatives before men- tioned, and the members of the several State Legis- la.iuies, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or aliirraatio;i to support this Con- stitution." "The President, before he enter on the execution of his oflicc, shall take the following oath or affirm- ation : "I do solemnly swear (or nffirm) that I will faith- fully execute the office of President of the United States, and will to the best of my .ability preserve, protect, and defend the Constitution of the United States." Tlie plain sequences of these provisions of the Constitution are some very important prin- ciples : 1. The Constitution is the paramount law of the land throughout the United States. 2. Every constitution and law of the States and every act of Congress, so far as they may be inconsistent with the Constitution of the United States, fall before its predominant au- thority and force, and from their origin are void and of no effect. 3. While it is the right of every citizen to oppose unconstitutional acts of Congress by every proper means, it is the especiiil duty of the President to make that resistance, as the chief executive officer of the Government, who has taken an official oath before entering on the execution of his office that he will faith- fully execute the office of President of the United States, and will to the best of his ability preserve, protect, and defend the Constitution of the United States. He has no more im- portant duty to perform, and none more oblig- atory upon him, than to preserve, protect, and defend the Constitution against all assailants, against Congress, and all comers. In doing this, he is not to make war, or any civil con- vulsion; but he is to resort to every appropriate means with which the Constitution and the laws have intrusted him; and none could be more fit than his removal of Mr. Stanton from office, with the purpose of making a case for the Su- preme Court, in which the constitutionality of the civil-office-tenure bill should be decided by the tribunal appointed by the Ccmstitution for the final judgment of all such questions. The right of each department of the Gov- ernment to interpret and construe the Constitu- tion for itself, and by it to determine the valid- ity of all acts of Congress, within the scope of the performance of their respective functions in the Government as to all questions not ad- judged by the Supreme Court, has heretofore been a generally received principle, and lias always been acted upon in the administiation of the Government. That a President was bound to execute an unconstitutional act of Congress without any question, until it was so decided by the Supreme Court, and by taking steps to have it subjected to that test, commit- ted an impeachable crime, is one of the absurd and mischievous heresies of this day. In relation to this matter Mr. Madison so clearly expresses the true princii>les of tin; Constitution that I will dismiss it with a quo- tation from him, with the remark that the principles which he expresses have always been generally held by all the statesmen, courts, and jurists of America. Madison Pai)ers, vol- ume four, page 394, dated in 1834, says : "As the legislative, executive, and judicial depart- 16 ments of the United States are coordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be puiiied by the text of the Constitution accordins to Its own interpretation of it; and consequently that in the event of irreconcilable interpretations the jirevalcnce of the one or tiie other department must depend on the nature of the case as receivinfr the final decision from one or the other, and passing from that decision into effect without involving the func- tions of any other. "But notwithsjandins this abstract view of the coordinate and independent risht of the three de- partments to expound the Constitution, the judicial department most familiarizes to the public atten- tion as the expositor, by the order of its functions in relation to the other departments, and attracts mnst the public confidence by the composition of the tribunal. "In the judicial department, in which constitu- tionality as well as legality generally find their ulti- mate discussion and operative decision; and the l)ublic deference to and confidence in the judgment of that body are peculiarly inspired by the qualities implied in its members and by the gravity and de- liberation of their prc>ceedings, and by the advantage their plurality gives them over the unity of the executive department, and their firmness over the multitudinous composition of the legislative depart- ment. '■ Without losing sight, therefore, of the coordinate relations of the three departments to each other, it may always be expected that the judicial bench, when happily filled, will, for the reasons suggested, most engage the respect and reliance of the public as the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members." Mr. Chief Justice, I believe these proposi- tions to be true : 1. The power of removal from office is an executive power, and is vested by the Constitu- tion in the President solely ; and, consequently, that so much of the act to regulate the tenure of certain civil ofHces as proposes to restrict the President' s exercise of that power, is uncon- stitutional and void. 2. That the case of Edwin M. Stanton, Sec- retary of War, does not come within the opera- tion of that act, and it presented no obstruc- tion to his removal by the President if consti- tutional. 3. That the removal of Stanton produced a vacancy in the office of Secretary of the De- partment of War, which the President was authorized by the laws of Conj^ress to supply for six months, by the designation of any per- son to perforin its duties for that period. 4. That there is no evidence that the Presi- dentviolated, or attempted to violate the "act to define and punish certain conspiracies," the act which directs "all orders and instructions relating to military operations by the Presi- dent or Secretary of War to be issued through tlie General of the Army, and in case of his inability through the next in rank," or the act " to provide for the more efficient government of the rebel States." And, moreover, I be- lieve the two acts last referred to were in con- flict with the Constitution and void and of no effect. 5. I believe the President has the same free- dom of speech which the Constitution guaran- tees to every American citizen; and if he had not, he has been guilty of no such abuse of it, as to constitute an impeachable offense. Upon these propositions, the truth of which I do not doubt, I conclude that there is no ground whatever for the impeachment of the President, and pronounce my opinion that all the articles be dismissed. In conclusion, I will express condemnation of the harsh spirit and flagrant violations of decorum with which this case has been prose- cuted in court; and especially of the violent and unjustifiable denunciations and oppro- brious epithets with which some of the Man- agers have indulged themselves toward the respondent. Such exhibitions certainly do not commend proceedings by impeachment before the Senate of the United States to the respect and high consideration of our countrymen or the world. Printed at the Congressional Globe OfBce. W*'98 83 ^ ^ ^x ►^.•.l::^* 0? *C ^** .^^' ^^^. ••jgi^.* >^ "^^^ . %^J%^/ .J