Chapter XXIII: Part 23

ART. XI. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, and in disregard of the Constitution and laws of the United States, did heretofore, to wit, on the 18th day of August, A.D. 1866, at the city of Washington, in the District of Columbia, by public speech, declare and affirm 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; thereby denying and intending to deny that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying and intending to deny the power of the said Thirty-ninth Congress to propose amendments to the Constitution of the United States; and in pursuance of said declaration the said Andrew Johnson, President of the United States, afterwards, to wit, on the 21st day of February, A.D. 1868, at the city of Washington, in the District of Columbia, did unlawfully, and in disregard of the requirement of the Constitution that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled "An act regulating the tenure of certain civil offices," passed March 2, 1867, by unlawfully devising and contriving, and attempting to devise and contrive, means by which he should prevent Edwin M. Stanton from forthwith resuming the functions 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 of Secretary for the Department of War, and also by further unlawfully devising and contriving, and attempting to devise and contrive, means then and there to prevent the execution of an act entitled "An act making appropriations for the support of the Army for the fiscal year ending June 30, 1868 and for other purposes," approved March 2, 1867, and also to prevent the execution of an act entitled "An act to provide for the more efficient government of the rebel States," passed March 2, 1867, whereby the said Andrew Johnson, President of the United States, did then, to wit, on the 21st day of February, A.D. 1868, at the city of Washington, commit and was guilty of a high misdemeanor in office.

SCHUYLER COLFAX,

_Speaker of the House of Representatives_.

Attest:

EDWARD McPHERSON,

_Clerk of the House of Representatives_.

IN THE SENATE, _March 4, 1868_.

The President _pro tempore_ laid before the Senate the following letter from the Hon. Salmon P. Chase, Chief Justice of the Supreme Court of the United States:

WASHINGTON, _March 4, 1868_.

_To the Senate of the United States_:

Inasmuch as the sole power to try impeachments is vested by the Constitution in the Senate, and it is made the duty of the Chief Justice to preside when the President is on trial, I take the liberty of submitting, very respectfully, some observations in respect to the proper mode of proceeding upon the impeachment which has been preferred by the House of Representatives against the President now in office.

That when the Senate sits for the trial of an impeachment it sits as a court seems unquestionable.

That for the trial of an impeachment of the President this court must be constituted of the members of the Senate, with the Chief Justice presiding, seems equally unquestionable.

The Federalist is regarded as the highest contemporary authority on the construction of the Constitution, and in the sixty-fourth number the functions of the Senate "sitting in their judicial capacity as a court for the trial of impeachments" are examined.

In a paragraph explaining the reasons for not uniting "the Supreme Court with the Senate in the formation of the court of impeachments" it is observed that--

To a certain extent the benefits of that union will be obtained from
making the Chief Justice of the Supreme Court the president of the court
of impeachments, as is proposed by the plan of the Convention, while the
inconveniences of an entire incorporation of the former into the latter
will be substantially avoided. This was, perhaps, the prudent mean.

This authority seems to leave no doubt upon either of the propositions just stated; and the statement of them will serve to introduce the question upon which I think it my duty to state the result of my reflections to the Senate, namely, At what period, in the case of an impeachment of the President, should the court of impeachment be organized under oath, as directed by the Constitution?

It will readily suggest itself to anyone who reflects upon the abilities and the learning in the law which distinguish so many Senators that besides the reason assigned in the Federalist there must have been still another for the provision requiring the Chief Justice to preside in the court of impeachment. Under the Constitution, in case of a vacancy in the office of President, the Vice-President succeeds, and it was doubtless thought prudent and befitting that the next in succession should not preside in a proceeding through which a vacancy might be created.

It is not doubted that the Senate, while sitting in its ordinary capacity, must necessarily receive from the House of Representatives some notice of its intention to impeach the President at its bar, but it does not seem to me an unwarranted opinion, in view of this constitutional provision, that the organization of the Senate as a court of impeachment, under the Constitution, should precede the actual announcement of the impeachment on the part of the House.

And it may perhaps be thought a still less unwarranted opinion that articles of impeachment should only be presented to a court of impeachment; that no summons or other process should issue except from the organized court, and that rules for the government of the proceedings of such a court should be framed only by the court itself.

I have found myself unable to come to any other conclusions than these. I can assign no reason for requiring the Senate to organize as a court under any other than its ordinary presiding officer for the latter proceedings upon an impeachment of the President which does not seem to me to apply equally to the earlier.

I am informed that the Senate has proceeded upon other views, and it is not my purpose to contest what its superior wisdom may have directed.

All good citizens will fervently pray that no occasion may ever arise when the grave proceedings now in progress will be cited as a precedent; but it is not impossible that such an occasion may come.

Inasmuch, therefore, as the Constitution has charged the Chief Justice with an important function in the trial of an impeachment of the President, it has seemed to me fitting and obligatory, where he is unable to concur in the views of the Senate concerning matters essential to the trial, that his respectful dissent should appear.

S.P. CHASE,

_Chief Justice of the United States_.

PROCEEDINGS OF THE SENATE SITTING FOR THE TRIAL OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES.

THURSDAY, MARCH 5, 1868.

THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.

The Chief Justice of the United States entered the Senate Chamber and was conducted to the chair by the committee appointed by the Senate for that purpose.

The following oath was administered to the Chief Justice by Associate Justice Nelson, and by the Chief Justice to the members of the Senate:

I do solemnly swear that in all things appertaining to the trial of the impeachment of Andrew Johnson, President of the United States, now pending, I will do impartial justice according to the Constitution and laws. So help me God.

FRIDAY, MARCH 6, 1868.

THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.

To accord with the conviction of the Chief Justice[76] that the court should adopt its own rules, those adopted on March 2 by the Senate sitting in its legislative capacity were readopted by the Senate sitting as a court of impeachment. The rules are as follows:

[Footnote 76: See letter from the Chief Justice, pp. 718-720.]

RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON THE TRIAL OF IMPEACHMENTS.

I. Whensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person, and are directed to carry articles of impeachment to the Senate, the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment agreeably to said notice.

II. When the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment against any person, the Presiding Officer of the Senate shall direct the Sergeant-at-Arms to make proclamation, who shall, after making proclamation, repeat the following words, viz:

All persons are commanded to keep silence, on pain of imprisonment,
while the House of Representatives is exhibiting to the Senate of the
United States articles of impeachment against -------- --------.

after which the articles shall be exhibited; and then the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment, of which due notice shall be given to the House of Representatives.

III. Upon such articles being presented to the Senate, the Senate shall, at 1 o'clock afternoon of the day (Sunday excepted) following such presentation, or sooner if so ordered by the Senate, proceed to the consideration of such articles, and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may in its judgment be needful. Before proceeding to the consideration of the articles of impeachment the Presiding Officer shall administer the oath hereinafter provided to the members of the Senate then present, and to the other members of the Senate as they shall appear, whose duty it shall be to take the same.

IV. When the President of the United States, or the Vice-President of the United States upon whom the powers and duties of the office of President shall have devolved, shall be impeached, the Chief Justice of the Supreme Court of the United States shall preside; and in a case requiring the said Chief Justice to preside notice shall be given to him by the Presiding Officer of the Senate of the time and place fixed for the consideration of the articles of impeachment as aforesaid, with a request to attend; and the said Chief Justice shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached therein.

V. The Presiding Officer shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.

VI. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of and disobedience to its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice; and the Sergeant-at-Arms, under the direction of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and precepts of the Senate.

VII. The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer upon the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment and all forms during the trial not otherwise specially provided for. The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one-fifth of the members present, be decided by yeas and nays.

VIII. Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided, a writ of summons shall issue to the accused, reciting said articles and notifying him to appear before the Senate upon a day and at a place to be fixed by the Senate, and named in such writ, and file his answer to said articles of impeachment, and to stand to and abide the orders and judgments of the Senate thereon, which writ shall be served by such officer or person as shall be named in the precept thereof such number of days prior to the day fixed for such appearance as shall be named in such precept, either by the delivery of an attested copy thereof to the person accused or, if that can not conveniently be done, by leaving such copy at the last known place of abode of such person or at his usual place of business, in some conspicuous place therein; or, if such service shall be, in the judgment of the Senate, impracticable, notice to the accused to appear shall be given in such other manner, by publication or otherwise, as shall be deemed just; and if the writ aforesaid shall fail of service in the manner aforesaid, the proceedings shall not thereby abate, but further service may be made in such manner as the Senate shall direct. If the accused, after service, shall fail to appear, either in person or by attorney, on the day so fixed therefor as aforesaid, or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed, nevertheless, as upon a plea of not guilty. If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.

IX. At 12 o'clock and 30 minutes afternoon of the day appointed for the return of the summons against the person impeached the legislative and executive business of the Senate shall be suspended and the Secretary of the Senate shall administer an oath to the returning officer in the form following, viz:

I, -------- --------, do solemnly swear that the return made by me
upon the process issued on the ---- day of ---- by the Senate of the
United States against -------- -------- is truly made, and that I have
performed such service as herein described.

So help me God.

which oath shall be entered at large on the records.

X. The person impeached shall then be called to appear and answer the articles of impeachment against him. If he appear, or any person for him, the appearance shall be recorded, stating particularly if by himself or by agent or attorney, naming the person appearing and the capacity in which he appears, If he do not appear, either personally or by agent or attorney, the same shall be recorded.

XI. At 12 o'clock and 30 minutes afternoon of the day appointed for the trial of an impeachment the legislative and executive business of the Senate shall be suspended and the Secretary shall give notice to the House of Representatives that the Senate is ready to proceed upon the impeachment of -------- --------, in the Senate Chamber, which chamber is prepared with accommodations for the reception of the House of Representatives.

XII. The hour of the day at which the Senate shall sit upon the trial of an impeachment shall be (unless otherwise ordered) 12 o'clock m., and when the hour for such sitting shall arrive the Presiding Officer of the Senate shall so announce; and thereupon the presiding officer upon such trial shall cause proclamation to be made, and the business of the trial shall proceed. The adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate, but on such adjournment the Senate shall resume the consideration of its legislative and executive business.

XIII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.

XIV. Counsel for the parties shall be admitted to appear and be heard upon an impeachment.

XV. All motions made by the parties or their counsel shall be addressed to the presiding officer, and if he or any Senator shall require it they shall be committed to writing and read at the Secretary's table.

XVI. Witnesses shall be examined by one person on behalf of the party producing them and then cross-examined by one person on the other side.

XVII. If a Senator is called as a witness, he shall be sworn and give his testimony standing in his place.

XVIII. If a Senator wishes a question to be put to a witness, or to offer a motion or order (except a motion to adjourn), it shall be reduced to writing and put by the presiding officer.

XIX. At all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions.

XX. All preliminary or interlocutory questions and all motions shall be argued for not exceeding one hour on each side, unless the Senate shall by order extend the time.

XXI. The case on each side shall be opened by one person. The final argument on the merits may be made by two persons on each side (unless otherwise ordered by the Senate, upon application for that purpose), and the argument shall be opened and closed on the part of the House of Representatives.

XXII. On the final question whether the impeachment is sustained the yeas and nays shall be taken on each article of impeachment separately, and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the members present a judgment of acquittal shall be entered; but if the person accused in such articles of impeachment shall be convicted upon any of said articles by the votes of two-thirds of the members present the Senate shall proceed to pronounce judgment, and a certified copy of such judgment shall be deposited in the office of the Secretary of State.

XXIII. All the orders and decisions shall be made and had by yeas and nays, which shall be entered on the record, and without debate, except when the doors shall be closed for deliberation, and in that case no member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question, and for not more than fifteen minutes on the final question, unless by consent of the Senate, to be had without debate; but a motion to adjourn may be decided without the yeas and nays, unless they be demanded by one-fifth of the members present.

XXIV. Witnesses shall be sworn in the following form, viz:

You, -------- --------, do swear (or affirm, as the case maybe) that
the evidence you shall give in the case now depending between the
United States and -------- -------- shall be the truth, the whole
truth, and nothing but the truth. So help you God.

which oath shall be administered by the Secretary or any other duly authorized person.

Form of subpoena to be issued on the application of the managers of the impeachment, or of the party impeached, or of his counsel:

_To_ -------- --------; _greeting_:

You and each of you are hereby commanded to appear before the Senate of
the United States on the ---- day of ----, at the Senate Chamber, in
the city of Washington, then and there to testify your knowledge in the
cause which is before the Senate in which the House of Representatives
have impeached -------- --------.

Fail not.

Witness -------- --------, and Presiding Officer of the Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.

Form of direction for the service of said subpoena:

_The Senate of the United States to_ -------- --------, _greeting_:

You are hereby commanded to serve and return the within subpoena
according to law.

Dated at Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.

_Secretary of the Senate_.

Form of oath to be administered to the members of the Senate sitting in the trial of impeachments:

I solemnly swear (or affirm, as the case may be) that in all things
appertaining to the trial of the impeachment of -------- --------, now
pending, I will do impartial justice according to the Constitution and
laws. So help me God.

Form of summons to be issued and served upon the person impeached.

THE UNITED STATES OF AMERICA, _ss_:

_The Senate of the United States to_ -------- --------, _greeting_:

Whereas the House of Representatives of the United States of America did
on the ---- day of ---- exhibit to the Senate articles of impeachment
against you, the said -------- --------, in the words following:

[Here insert the articles.]

And demand that you, the said -------- --------, should be put to
answer the accusations as set forth in said articles, and that such
proceedings, examinations, trials, and judgments might be thereupon
had as are agreeable to law and justice:

You, the said -------- --------, are therefore hereby summoned to be
and appear before the Senate of the United States of America, at their
chamber, in the city of Washington, on the ---- day of ----, at 12
o'clock and 30 minutes afternoon, then and there to answer to the said
articles of impeachment, and then and there to abide by, obey, and
perform such orders, directions, and judgments as the Senate of the
United States shall make in the premises, according to the Constitution
and laws of the United States.

Hereof you are not to fail.

Witness -------- --------, and Presiding Officer of the said Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.

Form of precept to be indorsed on said writ of summons:

THE UNITED STATES OF AMERICA, _ss_:

_The Senate of the United States to_ -------- --------, _greeting_:

You are hereby commanded to deliver to and leave with -------- --------,
if conveniently to be found, or, if not, to leave at his usual place of
abode or at his usual place of business, in some conspicuous place, a
true and attested copy of the within writ of summons, together with a
like copy of this precept; and in whichsoever way you perform the
service, let it be done at least ---- days before the appearance day
mentioned in said writ of summons.

Fail not, and make return of this writ of summons and precept, with your
proceedings thereon indorsed, on or before the appearance day mentioned
in the said writ of summons.

Witness -------- --------, and Presiding Officer of the Senate, at
the city of Washington, this ---- day of ----, A.D. ----, and of the
Independence of the United States the ------.

All process shall be served by the Sergeant-at-Arms of the Senate unless otherwise ordered by the court.

XXV. If the Senate shall at any time fail to sit for the consideration of articles of impeachment on the day or hour fixed therefor, the Senate may by an order, to be adopted without debate, fix a day and hour for resuming such consideration.

On March 31 Rule VII was amended to read as follows:

VII. The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the presiding officer on the trial shall direct all the forms of proceeding while the Senate are sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for, and the presiding officer on the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may, at his option, in the first instance submit any such question to a vote of the members of the Senate.

On April 3 Rule VII was further amended by inserting at the end thereof the following:

Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, when the same shall be taken.

On March 13 Rule XXIII was amended to read as follows:

XXIII. All the orders and decisions shall be made and had by yeas and nays, which shall be entered on the record, and without debate, subject, however, to the operation of Rule VII, except when the doors shall be closed for deliberation, and in that case no member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question, and for not more than fifteen minutes on the final question, unless by consent of the Senate, to be had without debate; but a motion to adjourn may be decided without the yeas and nays, unless they be demanded by one-fifth of the members present.

On May 7 Rule XXIII was further amended by adding thereto the following:

The fifteen minutes herein allowed shall be for the whole deliberation on the final question, and not to the final question on each article of impeachment.

FRIDAY, MARCH 13, 1868.

THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.

Mr. Henry Stanbery, in behalf of Andrew Johnson, the respondent, read the following paper:

In the matter of the impeachment of Andrew Johnson, President of the United States.

Mr. CHIEF JUSTICE: I, Andrew Johnson, President of the United States, having been served with a summons to appear before this honorable court, sitting as a court of impeachment, to answer certain articles of impeachment found and presented against me by the honorable the House of Representatives of the United States, do hereby enter my appearance by my counsel, Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William M. Evarts, and Thomas A.R. Nelson, who have my warrant and authority therefor, and who are instructed by me to ask of this honorable court a reasonable time for the preparation of my answer to said articles. After a careful examination of the articles of impeachment and consultation with my counsel, I am satisfied that at least forty days will be necessary for the preparation of my answer, and I respectfully ask that it be allowed.

ANDREW JOHNSON.

Mr. Stanbery then submitted the following motion:

In the matter of the impeachment of Andrew Johnson, President of the United States.

Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William M. Evarts, and Thomas A.R. Nelson, of counsel for the respondent, move the court for the allowance of forty days for the preparation of the answer to the articles of impeachment, and in support of the motion make the following professional statement:

The articles are eleven in number, involving many questions of law and fact. We have during the limited time and opportunity afforded us considered as far as possible the field of investigation which must be explored in the preparation of the answer, and the conclusion at which we have arrived is that with the utmost diligence the time we have asked is reasonable and necessary.

The precedents as to time for answer upon impeachments before the Senate to which we have had opportunity to refer are those of Judge Chase and Judge Peck.

In the case of Judge Chase time was allowed from the 3d of January until the 4th of February next succeeding to put in his answer--a period of thirty-two days; but in this case there were only eight articles, and Judge Chase had been for a year cognizant of most of the articles, and had been himself engaged in preparing to meet them.

In the case of Judge Peck there was but a single article. Judge Peck asked for time from the 10th to the 25th of May to put in his answer, and it was granted. It appears that Judge Peck had been long cognizant of the ground laid for his impeachment, and had been present before the committee of the House upon the examination of the witnesses, and had been permitted by the House of Representatives to present to that body an elaborate answer to the charges.

It is apparent that the President is fairly entitled to more time than was allowed in either of the foregoing cases. It is proper to add that the respondents in these cases were lawyers, fully capable of preparing their own answers, and that no pressing official duties interfered with their attention to that business; whereas the President, not being a lawyer, must rely on his counsel. The charges involve his acts, declarations, and intentions, as to all which his counsel must be fully advised upon consultation with him, step by step, in the preparation of his defense. It is seldom that a case requires such constant communication between client and counsel as this, and yet such communication can only be had at such intervals as are allowed to the President from the usual hours that must be devoted to his high official duties.

We further beg leave to suggest for the consideration of this honorable court that, as counsel careful as well of their own reputation as of the interests of their client in a case of such magnitude as this, so out of the ordinary range of professional experience, where so much responsibility is felt, they submit to the candid consideration of the court that they have a right to ask for themselves such opportunity to discharge their duty as seems to them to be absolutely necessary.

HENRY STANBERY,
B.R. CURTIS,
JEREMIAH S. BLACK, \__ Per H.S.
WILLIAM M. EVARTS, /
THOMAS A.R. NELSON,

_Of Counsel for the Respondent_.

The above motion was denied, and the Senate adopted the following orders:

_Ordered_, That the respondent file answer to the articles of impeachment on or before Monday, the 23d day of March instant.

_Ordered_, That unless otherwise ordered by the Senate, for cause shown, the trial of the pending impeachment shall proceed immediately after replication shall be filed.

MONDAY, MARCH 23, 1868.

THE UNITED STATES _vs_. ANDREW JOHNSON, PRESIDENT.

The answer of the respondent to the articles of impeachment was submitted by his counsel, as follows:

Senate of the United States, sitting as a court of impeachment for the trial of Andrew Johnson, President of the United States.

THE ANSWER OF THE SAID ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, TO THE ARTICLES OF IMPEACHMENT EXHIBITED AGAINST HIM BY THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES.

_Answer to Article I_.--For answer to the first article he says that Edwin M. Stanton was appointed Secretary for the Department of War on the 15th day of January, A.D. 1862, by Abraham Lincoln, then President of the United States, during the first term of his Presidency, and was commissioned, according to the Constitution and laws of the United States, to hold the said office during the pleasure of the President; that the office of Secretary for the Department of War was created by an act of the First Congress in its first session, passed on the 7th day of August, A.D. 1789, and in and by that act it was provided and enacted that the said Secretary for the Department of War shall perform and execute such duties as shall from time to time be enjoined on and intrusted to him by the President of the United States, agreeably to the Constitution, relative to the subjects within the scope of the said Department; and, furthermore, that the said Secretary shall conduct the business of the said Department in such a manner as the President of the United States shall from time to time order and instruct.

And this respondent, further answering, says that by force of the act aforesaid and by reason of his appointment aforesaid the said Stanton became the principal officer in one of the Executive Departments of the Government within the true intent and meaning of the second section of the second article of the Constitution of the United States and according to the true intent and meaning of that provision of the Constitution of the United States; and, in accordance with the settled and uniform practice of each and every President of the United States, the said Stanton then became, and so long as he should continue to hold the said office of Secretary for the Department of War must continue to be, one of the advisers of the President of the United States, as well as the person intrusted to act for and represent the President in matters enjoined upon him or intrusted to him by the President touching the Department aforesaid, and for whose conduct in such capacity, subordinate to the President, the President is by the Constitution and laws of the United States made responsible.

And this respondent, further answering, says he succeeded to the office of President of the United States upon and by reason of the death of Abraham Lincoln, then President of the United States, on the 15th day of April, 1865, and the said Stanton was then holding the said office of Secretary for the Department of War under and by reason of the appointment and commission aforesaid; and not having been removed from the said office by this respondent, the said Stanton continued to hold the same under the appointment and commission aforesaid, at the pleasure of the President, until the time hereinafter particularly mentioned, and at no time received any appointment or commission save as above detailed.

And this respondent, further answering, says that on and prior to the 5th day of August, A.D. 1867, this respondent, the President of the United States, responsible for the conduct of the Secretary for the Department of War, and having the constitutional right to resort to and rely upon the person holding that office for advice concerning the great and difficult public duties enjoined on the President by the Constitution and laws of the United States, became satisfied that he could not allow the said Stanton to continue to hold the office of Secretary for the Department of War without hazard of the public interest; that the relations between the said Stanton and the President no longer permitted the President to resort to him for advice or to be, in the judgment of the President, safely responsible for his conduct of the affairs of the Department of War, as by law required, in accordance with the orders and instructions of the President; and thereupon, by force of the Constitution and laws of the United States, which devolve on the President the power and the duty to control the conduct of the business of that Executive Department of the Government, and by reason of the constitutional duty of the President to take care that the laws be faithfully executed, this respondent did necessarily consider and did determine that the said Stanton ought no longer to hold the said office of Secretary for the Department of War. And this respondent, by virtue of the power and authority vested in him as President of the United States by the Constitution and laws of the United States, to give effect to such his decision and determination, did, on the 5th day of August, A.D. 1867, address to the said Stanton a note of which the following is a true copy:

SIR: Public considerations of a high character constrain me to say that
your resignation as Secretary of War will be accepted.

To which note the said Stanton made the following reply:

WAR DEPARTMENT,

_Washington, August_ 5, _1867_.

SIR: Your note of this day has been received, stating that "public
considerations of a high character constrain" you "to say that" my
"resignation as Secretary of War will be accepted."

In reply I have the honor to say that public considerations of a high
character, which alone have induced me to continue at the head of this
Department, constrain me not to resign the office of Secretary of War
before the next meeting of Congress.

Very respectfully, yours,

EDWIN M. STANTON.

This respondent, as President of the United States, was thereon of opinion that, having regard to the necessary official relations and duties of the Secretary for the Department of War to the President of the United States, according to the Constitution and laws of the United States, and having regard to the responsibility of the President for the conduct of the said Secretary, and having regard to the permanent executive authority of the office which the respondent holds under the Constitution and laws of the United States, it was impossible, consistently with the public interests, to allow the said Stanton to continue to hold the said office of Secretary for the Department of War; and it then became the official duty of the respondent, as President of the United States, to consider and decide what act or acts should and might lawfully be done by him, as President of the United States, to cause the said Stanton to surrender the said office.

This respondent was informed and verily believed that it was practically settled by the First Congress of the United States, and had been so considered and uniformly and in great numbers of instances acted on by each Congress and President of the United States, in succession, from President Washington to and including President Lincoln, and from the First Congress to the Thirty-ninth Congress, that the Constitution of the United States conferred on the President, as part of the executive power and as one of the necessary means and instruments of performing the executive duty expressly imposed on him by the Constitution of taking care that the laws be faithfully executed, the power at any and all times of removing from office all executive officers for cause to be judged of by the President alone. This respondent had, in pursuance of the Constitution, required the opinion of each principal officer of the Executive Departments upon this question of constitutional executive power and duty, and had been advised by each of them, including the said Stanton, Secretary for the Department of War, that under the Constitution of the United States this power was lodged by the Constitution in the President of the United States, and that, consequently, it could be lawfully exercised by him, and the Congress could not deprive him thereof; and this respondent, in his capacity of President of the United States, and because in that capacity he was both enabled and bound to use his best judgment upon this question, did, in good faith and with an earnest desire to arrive at the truth, come to the conclusion and opinion, and did make the same known to the honorable the Senate of the United States by a message dated on the 2d day of March, 1867 (a true copy whereof is hereunto annexed and marked A), that the power last mentioned was conferred and the duty of exercising it in fit cases was imposed on the President by the Constitution of the United States, and that the President could not be deprived of this power or relieved of this duty, nor could the same be vested by law in the President and the Senate jointly, either in part or whole; and this has ever since remained and was the opinion of this respondent at the time when he was forced as aforesaid to consider and decide what act or acts should and might lawfully be done by this respondent, as President of the United States, to cause the said Stanton to surrender the said office.

This respondent was also then aware that by the first section of "An act regulating the tenure of certain civil offices," passed March 2, 1867, by a constitutional majority of both Houses of Congress, it was enacted as follows:

That every person holding any civil office to which he has 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 qualified, except as herein otherwise provided: _Provided_,
That the Secretaries of State, of the Treasury, of War, of the Navy,
and of the Interior, the Postmaster-General, and the Attorney-General
shall hold their offices, respectively, for and during the term of the
President by whom they may have been appointed and one month thereafter,
subject to removal by and with the advice and consent of the Senate.

This respondent was also aware that this act was understood and intended to be an expression of the opinion of the Congress by which that act was passed that the power to remove executive officers for cause might by law be taken from the President and vested in him and the Senate jointly; and although this respondent had arrived at and still retained the opinion above expressed, and verily believed, as he still believes, that the said first section of the last-mentioned act was and is wholly inoperative and void by reason of its conflict with the Constitution of the United States, yet, inasmuch as the same had been enacted by the constitutional majority in each of the two Houses of that Congress, this respondent considered it to be proper to examine and decide whether the particular case of the said Stanton, on which it was this respondent's duty to act, was within or without the terms of that first section of the act, or, if within it, whether the President had not the power, according to the terms of the act, to remove the said Stanton from the office of Secretary for the Department of War; and having, in his capacity of President of the United States, so examined and considered, did form the opinion that the case of the said Stanton and his tenure of office were not affected by the first section of the last-named act.

And this respondent, further answering, says that although a case thus existed which, in his judgment, as President of the United States, called for the exercise of the executive power to remove the said Stanton from the office of Secretary for the Department of War; and although this respondent was of opinion, as is above shown, that under the Constitution of the United States the power to remove the said Stanton from the said office was vested in the President of the United States; and although this respondent was also of the opinion, as is above shown, that the case of the said Stanton was not affected by the first section of the last-named act; and although each of the said opinions had been formed by this respondent upon an actual case, requiring him, in his capacity of President of the United States, to come to some judgment and determination thereon, yet this respondent, as President of the United States, desired and determined to avoid, if possible, any question of the construction and effect of the said first section of the last-named act, and also the broader question of the executive power conferred upon the President of the United States by the Constitution of the United States to remove one of the principal officers of one of the Executive Departments for cause seeming to him sufficient; and this respondent also desired and determined that if, from causes over which he could exert no control, it should become absolutely necessary to raise and have in some way determined either or both of the said last-named questions, it was in accordance with the Constitution of the United States, and was required of the President thereby, that questions of so much gravity and importance, upon which the legislative and executive departments of the Government had disagreed, which involved powers considered by all branches of the Government, during its entire history down to the year 1867, to have been confided by the Constitution of the United States to the President, and to be necessary for the complete and proper execution of his constitutional duties, should be in some proper way submitted to that judicial department of the Government intrusted by the Constitution with the power, and subjected by it to the duty, not only of determining finally the construction and effect of all acts of Congress, but of comparing them with the Constitution of the United States and pronouncing them inoperative when found in conflict with that fundamental law which the people have enacted for the government of all their servants. And to these ends, first, that through the action of the Senate of the United States the absolute duty of the President to substitute some fit person in place of Mr. Stanton as one of his advisers, and as a principal subordinate officer whose official conduct he was responsible for and had lawful right to control, might, if possible, be accomplished without the necessity of raising any one of the questions aforesaid; and, second, if this duty could not be so performed, then that these questions, or such of them as might necessarily arise, should be judicially determined in manner aforesaid, and for no other end or purpose, this respondent, as President of the United States, on the 12th day of August, 1867, seven days after the reception of the letter of the said Stanton of the 5th of August, hereinbefore stated, did issue to the said Stanton the order following, namely:

EXECUTIVE MANSION,

_Washington, August 12, 1867_.

Hon. EDWIN M. STANTON,

_Secretary of War_.

SIR: By virtue of the power and authority vested in me as President by
the Constitution and laws of the United States, you are hereby suspended
from office as Secretary of War, and will cease to exercise any and all
functions pertaining to the same.

You will at once transfer to General Ulysses S. Grant, who has this day
been authorized and empowered to act as Secretary of War _ad interim_,
all records, books, papers, and other public property now in your
custody and charge.

To which said order the said Stanton made the following reply:

WAR DEPARTMENT,

_Washington City, August 12, 1867_.

The PRESIDENT.

SIR: Your note of this date has been received, informing me that by
virtue of the powers vested in you as President by the Constitution
and laws of the United States I am suspended from office as Secretary
of War, and will cease to exercise any and all functions pertaining to
the same; and also directing me at once to transfer to General Ulysses
S. Grant, who has this day been authorized and empowered to act as
Secretary of War _ad interim_, all records, books, papers, and other
public property now in my custody and charge.

Under a sense of public duty, I am compelled to deny your right under
the Constitution and laws of the United States, without the advice and
consent of the Senate and without legal cause, to suspend me from office
as Secretary of War, or the exercise of any or all functions pertaining
to the same, or without such advice and consent to compel me to transfer
to any person the records, books, papers, and public property in my
custody as Secretary.

But inasmuch as the General Commanding the armies of the United States
has been appointed _ad interim_, and has notified me that he has
accepted the appointment, I have no alternative but to submit, under
protest, to superior force.

And this respondent, further answering, says that it is provided in and by the second section of "An act regulating the tenure of certain civil offices" that the President may suspend an officer from the performance of the duties of the office held by him, for certain causes therein designated, until the next meeting of the Senate and until the case shall be acted on by the Senate; that this respondent, as President of the United States, was advised, and he verily believed, and still believes, that the executive power of removal from office confided to him by the Constitution as aforesaid includes the power of suspension from office at the pleasure of the President; and this respondent, by the order aforesaid, did suspend the said Stanton from office, not until the next meeting of the Senate or until the Senate should have acted upon the case, but, by force of the power and authority vested in him by the Constitution and laws of the United States, indefinitely and at the pleasure of the President; and the order, in form aforesaid, was made known to the Senate of the United States on the 12th day of December, A.D. 1867, as will be more fully hereinafter stated.

And this respondent, further answering, says that in and by the act of February 13, 1795, it was, among other things, provided and enacted that in case of vacancy in the office of Secretary for the Department of War it shall be lawful for the President, in case he shall think it necessary, to authorize any person to perform the duties of that office until a successor be appointed or such vacancy filled, but not exceeding the term of six months; and this respondent, being advised and believing that such law was in full force and not repealed, by an order dated August 12, 1867, did authorize and empower Ulysses S. Grant, General of the armies of the United States, to act as Secretary for the Department of War _ad interim_, in the form in which similar authority had theretofore been given, not until the next meeting of the Senate and until the Senate should act on the case, but at the pleasure of the President, subject only to the limitation of six months in the said last-mentioned act contained; and a copy of the last-named order was made known to the Senate of the United States on the 12th day of December, A.D. 1867, as will be hereinafter more fully stated; and in pursuance of the design and intention aforesaid, if it should become necessary, to submit the said questions to a judicial determination, this respondent, at or near the date of the last-mentioned order, did make known such his purpose to obtain a judicial decision of the said questions, or such of them as might be necessary.

And this respondent, further answering, says that in further pursuance of his intention and design, if possible, to perform what he judged to be his imperative duty, to prevent the said Stanton from longer holding the office of Secretary for the Department of War, and at the same time avoiding, if possible, any question respecting the extent of the power of removal from executive office confided to the President by the Constitution of the United States, and any question respecting the construction and effect of the first section of the said "Act regulating the tenure of certain civil offices," while he should not by any act of his abandon and relinquish either a power which he believed the Constitution had conferred on the President of the United States to enable him to perform the duties of his office or a power designedly left to him by the first section of the act of Congress last aforesaid, this respondent did, on the 12th day of December, 1867, transmit to the Senate of the United States a message, a copy whereof is hereunto annexed and marked B, wherein he made known the orders aforesaid and the reasons which had induced the same, so far as this respondent then considered it material and necessary that the same should be set forth, and reiterated his views concerning the constitutional power of removal vested in the President, and also expressed his views concerning the construction of the said first section of the last-mentioned act, as respected the power of the President to remove the said Stanton from the said office of Secretary for the Department of War, well hoping that this respondent could thus perform what he then believed, and still believes, to be his imperative duty in reference to the said Stanton without derogating from the powers which this respondent believed were confided to the President by the Constitution and laws, and without the necessity of raising judicially any questions respecting the same.