guilty. Two thirds not having pronounced him guilty, he stands acquitted upon this article.

Mr. WILLIAMS. Mr. President, I move that the Senate now proceed to vote upon the third article.

The motion was agreed to.

The CHIEF JUSTICE. The Secretary will read the third article.

The Chief Clerk read the third article of impeachment, as follows:

ARTICLE III.

That said Andrew Johnson, President of the United States, on the 21st day of February, in the year of our Lord, 1868, at Washington, in the District of Columbia, did commit and was guilty of a high misdemeanor in office, in this, that, without authority of law, while the Senate of the United States was then and there in session, he did appoint one Lorenzo Thomas to be Secretary for the Department of War ad interim, without the advice and consent of the Senate, and with intent to violate the Constitution of the United States, no vacancy having happened in said office of Secretary for the Department of War during the recess of the Senate, and no vacancy existing in said office at the time, and which said appointment, so made by said Andrew Johnson, of said Lorenzo Thomas, is in substance as follows, that is to say:

EXECUTIVE MANSION,

WASHINGTON, D. C., February 21, 1868.

SIR: The Hon. Edwin M. Stanton having been this day removed from office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will immediately enter upon the discharge of the duties pertaining to that office.

Mr. Stanton has been instructed to transfer to you all the records, books, papers, and other public property now in his custody and charge.

Respectfully yours,

ANDREW JOHNSON. To Brevet Major General LORENZO THOMAS, Adjutant General United States Army, Washington, D. C. The roll was called as before, and as each Senator rose in his place the Chief Justice propounded this question:

Mr. Senator how say you, is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor, as charged in this article?

The result was as follows:

Those who voted "Not guilty" are: Messrs. BAYARD, BUCKALEW, DAVIS, DIXON, DOOLITTLE, FESSENDEN, FOWLER, GRIMES, HENDERSON, HENDRICKS, JOHNSON, MCCREERY, NORTON, PATTERSON of Tennessee, Ross, SAULSBURY, TRUMBULL, VAN WINKLE, and VICKERS-19.

The CHIEF JUSTICE. Thirty-five Senators have pronounced Andrew Johnson, President of the United States, guilty, as charged in this article; nineteen have pronounced him not guilty. Two thirds not having pronounced him guilty, the President of the United States stands acquitted upon this article.

Mr. WILLIAMS. Mr. President, I move that the Senate, sitting as a court of impeachment, do now adjourn sine die.

Mr. BUCKALEW. I ask for the yeas and nays on that motion.

The yeas and nays were ordered and taken. The roll was called, and the result was as follows:

judgment of the Senate; but if there be no objection, the judgment will be entered by the Clerk. Not at all. Of course not.

Mr. HOWARD. Mr. SUMNER. Several SENATORS. There is no objection. Mr. HOWARD. Let the vote on adjourn ment be announced.

Mr. JOHNSON. Judgment must be entered. Mr. SUMNER. There seems to be a misunderstanding as to the entry which it is proposed to make in the Journal.

The CHIEF JUSTICE. The Clerk will enter, if there be no objection, a judgment according to the rules-a judgment of acquittal.

Mr. CONNESS. I simply desire to say to the Chair that the very rule which has been read implies a vote before such a judgment can be entered; and unless a vote be taken no such judgment can be entered under the rule. The CHIEF JUSTICE. The Chief Justice

has been taken. The rule is express. Mr. CONNESS. Certainly; judgment must be entered on them.

NAYS-Messrs. Bayard, Buckalew, Davis, Dixon, Doolittle, Fowler, Henderson, Hendricks, Johnson, McCreery, Norton, Patterson of Tennessee, Ross, Saulsbury, Trumbull, and Vickers-16.

NOT VOTING -Messrs. Conness, Fessenden, Grimes, and Howe-4.

The CHIEF JUSTICE. Before announcing the vote the Chief Justice will remind the Senate that the twenty-second rule provides that if "upon any of the articles presented" the impeachment shall not be sustained by the votes of two thirds of the members present' a judgment of acquittal shall be entered.

Several SENATORS. We cannot hear. The CHIEF JUSTICE. The Chief Justice begs leave to remind the Senate that the twenty-second rule provides that "if the im

presented, be sustained by the votes of two thirds of the members present, a judgment of acquittal shall be entered."

Those who voted "Guilty" are: Messrs. ANTHONY, CAMERON, CATTELL, CHANDLER,|peachment shall not, upon any of the articles COLE, Conkling, Conness, CorBETT, CRAGIN, DRAKE, EDMUNDS, FERRY, FRELINGHUYSEN, HARLAN, HOWARD, HOWE, MORGAN, MORRILL of Maine, MORRILL of Vermont, MORTON, NYE, PATTERSON of New Hampshire, POMEROY, RAMSEY, SHERMAN, SPRAGUE, STEWART, SUMNER, THAYER, TIPTON, WADE, WILLEY, WIL- || LIAMS, WILSON, and YATES-35.

Mr. DRAKE. I suggest, Mr. President, that that was done when the President of the Senate declared the acquittal upon each article.

The CHIEF JUSTICE. That is not the

Mr. DRAKE. I would suggest to the Chair that in the case of Judge Peck the only entry of acquittal was the declaration by the presiding officer that he was acquitted.

The CHIEF JUSTICE. The Chief Justice simply follows the rules which have been ordained for their own government by the Senate. He does not follow a precedent; he follows the rule.

Mr. SUMNER. Mr. President, as I understand, the Chair has already, on each vote, made a declaration of acquittal, and that is of record.

The CHIEF JUSTICE. That, however, is not the judgment of the Senate contemplated by the rule; it is simply the result of the particular vote upon each article, and the rules provide that the judgment shall be entered.

Mr. CONNESS. There can be no objection to that.

The CHIEF JUSTICE. Upon the question of adjournment without day the yeas are 34 and the nays are 16. So the Senate sitting as a court of impeachment for the trial of Andrew Johnson upon articles of impeachment presented by the House of Representatives stands adjourned without day.

of March 2, 1867, was passed to correct the previous practice, and had there been no such practice there would have been no occasion for such a law. Did that act, constitutional and valid as it is believed to be, change the law so far as it related to a Secretary then in office, by virtue of an appointment made by a former President during a presidential term which ended March 4, 1865?

The language of the first section of the act is: "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."

Mr. Lincoln, by and with the advice and consent of the Senate, appointed Mr. Stanton Secretary of War on the 15th of January, 1862, and commissioned him to hold the office "during the pleasure of the President of the United States for the time being.' He was never reappointed, either by Mr. Lincoln after his reelection, or by Mr. Johnson since Mr. Lincoln's death. The continuance of Mr. Stanton in office by Mr. Lincoln after his second term commenced, and by Mr. Johnson after Mr. Lincoln's death, cannot be construed as a reappointment during that term, because the word "appointed" in the tenure-of-office act must be construed to mean a legal appointment, which could only be made by and with the advice and consent of the Senate. The term of the President by whom Mr. Stanton was appointed, and the one month thereafter, expired nearly two years before the passage of the tenure-ofoffice act. It will not do to say that because Mr. Lincoln was elected for a second term that therefore the term of the President by whom Mr. Stanton was appointed has not expired. The fact that Mr. Lincoln was his own successor in 1865 did not make the two terms one any more than if any other person had succeeded him, and were he now alive the presidential term during which he appointed Mr. Stanton would long since have expired. But Mr. Lincoln, in fact, deceased soon after his second term commenced, and was succeeded by the Vice President, elected for the same term, on whom the office of President was by the Constitution devolved.

It has been argued that this is Mr. Lincoln's term. If this be so, it is his second term, and not the term during which Mr. Stanton was appointed; but if this be Mr. Lincoln's and not Mr. Johnson's term, when will the "term of the President" by whom Mr. Browning and the other Cabinet officers appointed since Mr. Lincoln's death expire? Mr. Lincoln never appointed them, and if they are to hold "during the term of the President by whom they were appointed and for one month thereafter" they hold indefinitely, because, according to this theory, Mr. Johnson, the President by whom they were appointed, never had a term, and we have the anomaly of a person on whom the office of President is devolved, and who is impeached as President, and whom the Senate is asked to convict as President, who has no term of office. The clause of the Constitution which declares that the President shall hold his office during the term of four years" does not mean that the person holding the office shall not die, resign, or be removed during that period, but to fix a term or limit during which he may, but beyond which he cannot, hold the office. If he die, resign, or be removed in the mean time, manifestly the term, so far as he is concerned, has come to an end. The term of the presidential office is four years, but the Constitution expressly provides that different persons may fill the office during that period, and in popular language it is called the term of the person who happens for the time being to be in the office. It is just as impos- Il

sible for Mr. Stanton to now serve as Secretary of War for the term of the President by whom he was appointed as it is for Mr. Lincoln to serve out the second term for which he was elected. Both the presidential term of the President who appointed Mr. Stanton and the person who made the appointment have passed away, never to return; but the presidential office remains, filled, however, by another person, and not Mr. Lincoln.

It being apparent that so much of the proviso to the first section of the tenure-of-civiloffice act of March 2, 1867, as authorizes the Secretary of War to hold the office for and during the term of the President by whom he was appointed is inapplicable to the case of Mr. Stanton, by what tenure did he hold the office on the 21st of February last, when the President issued the order for his removal?

commencing on the first Monday of June and November, except as herein otherwise provided; provided, that two terms of the district court in each of the judicial districts in the State of New York shall be held during the year 1868, commencing on the first Monday of April and September:" manifestly it would at this time be as impossible to comply with so much of the proviso as requires a court to be held in the New York districts in April, 1868, as it now is for Mr. Stanton to serve out the term of the President by whom he was appointed, which ended March 4,

1865.

Would that circumstance take the provision for the New York districts out of the proviso, and because, by the body of the act, two terms are required to be held in every judicial district in the United States on the first Monday of June and November, authorize the holding of courts in the New York districts at those periods? It is believed that no judge would for a moment think of giving such a construction to such an act; and yet this is precisely the construction of an act believed to be analogous in principle which must be resorted to to bring Mr. Stanton within the body of the first section of the tenure-of-office act.

Originally appointed to hold office during the pleasure of the President for the time being, and, as has already been shown, removable at the will of the President, according to the act of 1789, there would seem to be no escape from the conclusion that the President had the right to issue the order for his removal. It has, however, been insisted that if the proviso which secures to the Secretaries the right to hold their respective offices during the term of the President by whom they may have been appointed and for one month thereafter does not embrace Mr. Stanton, because Mr. Johnson did not appoint him, that then, as a civil officer, he is within the body of the first section of the act and entitled to hold his office until by and with the advice and consent of the Senate a successor shall have been appointed and duly qualified. Not so; for the reason that the body of the first section can.have no reference to the tenure of an office expressly excepted from it by the words "except as herein otherwise provided," and the provision which follows, fix-retary of War appointed by his predecessor, is ing a different tenure for the Secretary of War. Can any one doubt that the law was intended to make, and does make a distinction between the tenure of office given to the Secretaries and that given to other civil officers? How, then, can it be said that the tenures are the same, or the same as to any particular Secretaries?

The meaning of the section is not different from what it would be if instead of the words, every person holding any civil office," there had been inserted the words marshal, district attorney, postmaster, and so on, enumerating and fixing the tenure of all other civil officers except the Secretaries; and then had proceeded to enumerate the different Secretaries and fix for them a different tenure from that given to the other enumerated officers. Had the section been thus written, would any one think, in case a particular Secretary for some personal reason was unable to avail himself of the benefit of the law securing to Secretaries a certain tenure of office, that he would therefore have the right to the benefit of the law in which Secretaries were not mentioned, securing to marshals and others & different tenure of office? The object of an exception or proviso in a statute is to limit or take something out of the body of the act, and is usually resorted to for convenience, as a briefer mode of declaring the object than to enumerate everything embraced in the general terms of the act, and then provide for the excepted matter. The fact that the terms of the proviso which fix the tenure of office of all Secretaries are such that a particular Secretary, for reasons personal to himself, cannot take advantage of them, does not operate to take from the proviso the office of a Secretary, and the tenure attached to it, and transfer them to the body of the section which provides a tenure for holding office from which the office of Secretary is expressly excepted.

The meaning of this first section will be still more apparent by supposing a case involving the same principle but wholly disconnected with the one under consideration. Suppose Congress were to-day, May 16, 1868, to pass an act declaring that "two terms of the district court in every judicial district of the United States shall be held during the year 1868,

Laying out of view what was said at the time of the passage of the tenure-of-office act, as to its not interfering with Mr. Johnson's right to remove the Secretaries appointed by his predecessor, and the unreasonableness of a construction of the act which would secure them in office longer than the Secretaries he had himself appointed, and fasten them for life on all future Presidents, unless the Senate consented to the appointment of successors, the conclusion seems inevitable, from the terms of the tenure-of-office act itself, that the Presi dent's right to remove Mr. Stanton, the Sec

not affected by it, and that, having the authority to remove that officer under the act of 1789, he did not violate either the Constitution or any statute in issuing the order for that purpose. But even if a different construction could be put upon the law, I could never consent to convict the Chief Magistrate of a great people of a high misdemeanor and remove him from office for a misconstruction of what must be admitted to be a doubtful statute, and particularly when the misconstruction was the same put upon it by the authors of the law at the time of its passage.

The second article charges that the President, in violation of the Constitution, and contrary to the tenure-of-office act, and with intent to violate the same, issued to Lorenzo Thomas a letter of authority empowering him to act as Secretary of War ad interim, there being no vacancy in the office of Secretary of War. There is nothing in the tenure-of-office act, or any other statute, prohibiting the issuing of such a letter, much less making it a crime or misdemeanor. The most that can be said is that it was issued without authority of law.

The Senate is required to pass judgment upon each article separately, and each must stand or fall by itself. There is no allegation in this article of any design or attempt to use the letter of authority, or that any harm came from it; and any Senator might well hesitate to find the President guilty of a high misdemeanor for simply issuing such a letter, although issued without authority of law. The proof, however, shows that the letter was issued by the President in connection with the order for the removal of Mr. Stanton, which, as has already been shown, was a valid order. The question, then, arises whether the Presi dent was guilty of a high misdemeanor in issuing to the Adjutant General of the Army a letter authorizing him, in view of the contemplated vacancy, temporarily to discharge the duties of Secretary of War.

Several statutes have been passed providing for the temporary discharge of the duties of an office by some other person in case of a vacancy, or when the officer himself is unable to perform them. The first was the eighth

section of the act of May 8, 1792, and is as follows:

"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 other officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, 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.

the Senate was in session; some which were made in vacation were continued in force long after the Senate assembled. Sometimes the temporary officer was the commissioned head of another Department, sometimes a subordinate in the saine Department. Sometimes the affairs of the Navy Department have been directed ad interim by a commodore, and those of the War Department by a general."

declares:

"That in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secrotary of the Department of War, or of any officer of either of the said Departments whose appointment is not in the head thereof, whereby they cannot perform

lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed or such vacancy be filled: Provided, That no one vacancy shall be supplied in manner aforesaid for a longer term than six months."

Neither of these acts provided for vacancies in the Navy, Interior or Post Office Department. Mr. Lincoln, in 1863, called attention to this defect in a special message, as follows: To the Senate and House of Representatives:

I submit to Congress the expediency of extending to other Departments of the Government the authority conferred on the President by the eighth section of the act of the 8th of May, 1792, to appoint a person to temporarily discharge the duties of Secretary of State, of the Treasury, and the Secretary of War, in case of the death, absence from the seat of Government, or sickness of either of those officers. ABRAHAM LINCOLN.

WASHINGTON, January 2, 1863. February 20, 1863, Congress passed a third act on this subject, which declares:

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

These statutes contain all the legislation of Congress on the subject to which they relate. It has been insisted that, inasmuch as under the act of 1863 the President had no authority to designate any other person to perform the duties of Secretary of War than an officer in that or some of the other Executive Departments, and then in case of vacancy to supply such only as are occasioned by death or resignation, his designation of the Adjutant General of the Army to supply temporarily a vacancy occasioned by removal was without authority. If the act of 1863 repealed the act of 1795 this would doubtless be so; but if it did not repeal it, then the President clearly had the right, under that act, which provided for the temporary discharge of the duties of Secretary of War in any vacancy by any person, to authorize General Thomas temporarily to discharge those duties. The law of 1863, embracing, as it does, all the Departments, and containing provisions from both the previous statutes, may, however, be construed to embrace the whole subject on which it treats, and operate as a repeal of all prior laws on the same subject. It must, however, be admitted that it is by no means clear that the act of 1863 does repeal so much of the act of 1795 as authorizes the President to provide for the temporary discharge of the duties of an office from which an incumbent has been removed, or whose term of office has expired by limitation before the regular appointment of a successor.

It has been argued that the tenure-of-office fact of March 2, 1867, repealed both the act of 1795 and that of 1863, authorizing the temporary supplying of vacancies in the Departments. This is an entire misapprehension. The eighth

porarily, in no one case exceeding six months, the duties of another office not then filled. It is the issuing of a letter of authority in respect to a removal, appointment, or employment" contrary to the provisions" of the tenmeanor. As the order for the removal of Mr. Stanton has already been shown not to have been "contrary to the provisions of this act," any letter of authority in regard to it is not forbidden by the sixth section thereof. Admitting, however, that there was no statute in existence expressly authorizing the Presi dent to designate the Adjutant General of the Army temporarily to discharge the duties of the office of Secretary of War, made vacant by removal, till a successor, whose nomination was proposed the next day, could be confirmed, does it follow that he was guilty of a high misdemeanor in making such temporary designation when there was no law making it a penal offense or prohibiting it? Prior to 1863, as Mr. Lincoln's message shows, there was no law authorizing these temporary designations in any other than the three Departments of State, Treasury, and War; and yet President Lincoln himself, on the 22d of September, 1862, prior to any law authorizing it, issued the following letter of authority appointing a Postmaster General ad interim:

"Resolved by the Senate of the United States, That under the Constitution and laws of the United States the President has no power to remove the Secretary of War and designate any other officer to perform the duties of that office ad interim”—

as if Senators sitting as a court on the trial of the President for high crimes and misdemeanors would feel bound or influenced in any degree by a resolution introduced and hastily passed before an adjournment on the very day the orders to Stanton and Thomas were issued. Let him who would be governed by such considerations in passing on the guilt or innocence of the accused, and not by the law and the facts as they have been developed on the trial, shelter himself under such a resolution. I am sure no honest man could. It is known, however, that the resolution coupled the two things, the removal of the Secretary of War and the designation of an officer ad interim, together, so that those who believed either without authority were compelled to vote for the resolution.

My understanding at the time was, that the act of 1863 repealed that of 1795 authorizing the designation of a Secretary of War ad interim in the place of a Secretary removed; but I never entertained the opinion that the President had not power to remove the Secretary of War appointed by Mr. Lincoln during his first term. Believing the act of 1795 to have been repealed, I was bound to vote that the President had no power under the law to designate a Secretary of War ad interim to fill a vacancy caused by removal, just as I would feel

ABRAHAM LINCOLN.

WASHINGTON, September 22, 1862.

To provide for temporary disabilities or vacancies in the Navy Department, and for which no law at the time existed, President Jackson, during his administration, made ten different designations or appointments of Secretaries of the Navy ad interim. Similar ad interim designations in the Navy Department were made by Presidents Van Buren, Harrison, Tyler, Poik, Filmore, and others; and these appointments were made indiscriminately during the sessions of the Senate as well as during its recess. As no law authorizing them existed at the time these ad interim appointments were made in the Navy and Post Office Departments, it must be admitted that they were made without authority of law; and yet, who then thought, or would now think, of impeaching for high crimes and misPresident Buchanan, in a communication to the Senate made January 15, 1861, on the subject of ad interim appointments, used this language:

demeanors the Presidents who made them?

"Vacancies may occur at any time in the most important oflices which cannot be immediately and permanently filled in a manner satisfactory to the appointing power. It was wise to make a provision which would enable the President to avoid a total suspension of business in the interval, and equally wise so to limit the executive discretion as to prevent any serious abuse of it. This is what the framers of the act of 1795 did, and neither the policy nor the constitutional validity of their law has been questioned for sixty-five years.

The practice of making such appointments, whetherin a vacation or during thesession of Congress, has been constantly followed during every Administration from the earliest period of the Government, and its perfect lawfulness has never, to my knowledge, been questioned or denied. Without going back further than the year 1829, and without taking into the calculation any but the chief officers of the several Departments, it will be found that provisional appointments to fill vacancies were made to the number of one hundred and seventy-nine from the commencement of General Jackson's administration to the close of General Pierco's. This number would probably be greatly increased if all the cases which occurred in the subordinate offices and bureaus were added to the count. Some of them were made while

President Jackson nor any of his successors had the power, under the law, to designate ad interim Postmasters General or Secretaries of the Navy and Interior prior to the act of 1863; but it by no means follows that they were guilty of high crimes and misdemeanors in making such temporary designations. They acted without the shadow of statutory authority in making without plausibility, that he had authority under such appointments. Johnson claims, and not the act of 1795 to authorize the Adjutant General of the Army to perform temporarily the duties of Secretary of War; but if that act was repealed, even then he simply acted as his predecessors had done with the acquiescence of the nation for forty years before. Considering that second article are in no respect contrary to any the facts charged against the President in the provision of the tenure-of-office act; that they do not constitute a misdemeanor, and are not forbidden by any statute; that it is a matter of grave doubt whether so much of the act of 1795 as would expressly authorize the issuing of the letter of authority to General Thomas is not in force, and if it is not, that President Johnson still had the same authority for issuing it as his predecessors had exercised for many years without objection in the Navy, Interior, and Post Office Departments, it is impossible for me to hold him guilty of a high misdemeanor under that article. To do so would, in my opinion, be to disregard, rather than recognize, that impartial justice I am sworn to administer.

What has been said in regard to the second article applies with equal force to the third and eighth articles: there being no proof of an unlawful intent to control the disbursements of the moneys appropriated for the military service, as charged in the eighth article.

Articles four, five, six, and seven, taken together, charge in substance that the President conspired with Lorenzo Thomas and other persons with intent, by intimidation and threats, to prevent Edwin M. Stanton from holding the office of Secretary of War, and by force to