"And this case must be tried upon the charges now made by the House of Representatives. We cannot consider other offenses. An appeal is made to the conscience of each Senator of guilty or not guilty by the President of eleven specific offenses. In answering this appeal a Senator cannot justify himself by public opinion, or by political, personal, or partisan demands, or even grave considerations of public policy. His conscientious conviction of the truth of these charges is the only test that will justify a verdict of guilty. God forbid that any other shall prevail here. In forming this conviction we are not limited merely to the rules of evidence, which, by the experience of ages, have been found best adapted to the trial of offenses in the double tribunal of court and jury, but we may seek light from history, from personal knowledge, and from all sources that will tend to form a conscientious conviction of the truth. And we are not bound to technical definitions of crimes and misdemeanors.
"A willful violation of the law, a gross and palpable breach of moral obligations tending to unfit an officer for the proper discharge of his office, or to bring the office into public contempt and derision, is, when charged and proven, an impeachable offense. And the nature and criminality of the offense may depend on the official character of the accused. A judge would be held to higher official purity, and an executive officer to a stricter observance of the letter of the law. The President, bound as a citizen to obey the law, and specially sworn to execute the law, may properly, in his high office as chief magistrate, be held to a stricter responsibility than if his example was less dangerous to the public safety. Still, to justify the conviction of the President there must be specific allegations of some crime or misdemeanor involving moral turpitude, gross misconduct, or a willful violation of law, and the proof must be such as to satisfy the conscience of the truth of the charge.
"The principal charges against the President are that he willfully and purposely violated the constitution and the laws, in the order for the removal of Mr. Stanton, and in the order for the appointment of General Thomas as Secretary of War ad interim. These two orders were contemporaneous—part of the same transaction—but are distinct acts, and are made the basis of separate articles of impeachment."
I stated the grounds of my conviction that the action of the President, in placing Lorenzo Thomas in charge of the office of Secretary of War, without the advice and consent of the Senate, was a clearly illegal act, committed for the purpose of obtaining control of that office. I held that the President had the power to remove Secretary Stanton, but that he had not the power to put anyone in his place unless the person appointed was confirmed by the Senate.
Did the act of March 2, 1867, commonly known as the "tenure of office act," confer this authority? On the contrary, it plainly prohibits all temporary appointments except as specially provided for. The third section repeats the constitutional authority of the President to fill all vacancies happening during the recess of the Senate by death or resignation, and provides that if no appointment is made during the following session to fill such vacancy, the office shall remain in abeyance until an appointment is duly made and confirmed, and provision is made for the discharge of the duties of the office in the meantime. The second session provides for the suspension of an officer during the recess, and for a temporary appointment during the recess. This power was exercised and fully exhausted by the suspension of Mr. Stanton until restored by the Senate, in compliance with the law. No authority whatever is conferred by this act for any temporary appointment during the session of the Senate, but, on the contrary, such an appointment is plainly inconsistent with the act, and could not be inferred or implied for it. The sixth section further provides:
"That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sending, countersigning, or issuing of any commission or letter of authority for, or in respect to, any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding $10,000, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court."
This language is plain, explicit, and was inserted not only to prohibit all temporary appointments except during the recess, and in the mode provided for in the second section, but the unusual course was taken of affixing a penalty to a law defining the official duty of the President. The original bill did not contain penal clauses; but it was objected in the Senate that the President had already disregarded mandatory provisions of law, and would this; and therefore, after debate, these penal sections were added to secure obedience to the law, and to give to it the highest sanction.
I quote my view of the action of the President:
"Was not this act willfully violated by the President during the session of the Senate?
"It appears, from the letter of the President to General Grant, from his conversation with General Sherman, and from his answer, that he had formed a fixed resolve to get rid of Mr. Stanton, and fill the vacancy without the advice of the Senate. He might have secured a new Secretary of War by sending a proper nomination to the Senate. This he neglected and refused to do. He cannot allege that the Senate refused to relieve him from an obnoxious minister. He could not say that the Senate refused to confirm a proper appointee, for he would make no appointment to them. The Senate had declared that the reasons assigned for suspending Mr. Stanton did not make the case required by the tenure of office act, but I affirm as my conviction that the Senate would have confirmed any one of a great number of patriotic citizens if nominated to the Senate. I cannot resist the conclusion, from the evidence before us, that he was resolved to obtain a vacancy in the department of war in such a way that he might fill the vacancy by an appointment without the consent of the Senate, and in violation of the constitution and the law. This was the purpose of the offer to General Sherman. This was the purpose of the appointment of General Thomas. If he had succeeded as he hoped, he could have changed his temporary appointment at pleasure, and thus have defied the authority of the Senate and the mandatory provisions of the constitution and the law. I cannot in any other way account for his refusal to send a nomination to the Senate until after the appointment of General Thomas. The removal of Mr. Stanton by a new appointment, confirmed by the Senate, would have complied with the constitution. The absolute removal of Mr. Stanton would have created a temporary vacancy, but the Senate was in session to share in the appointment of another. An ad interim appointment, without authority of law, during the session of the Senate, would place the department of war at his control in defiance fo the Senate and the law, and would have set an evil example, dangerous to the public safety—one which, if allowed to pass unchallenged, would place the President above and beyond the law.