_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.
And this respondent, further answering, says that this hope not having
been realized, the President was compelled either to allow the said
Stanton to resume the said office and remain therein contrary to the
settled convictions of the President, formed as aforesaid, respecting
the powers confided to him and the duties required of him by the
Constitution of the United States, and contrary to the opinion formed
as aforesaid that the first section of the last-mentioned act did not
affect the case of the said Stanton, and contrary to the fixed belief
of the President that he could no longer advise with or trust or be
responsible for the said Stanton in the said office of Secretary for the
Department of War, or else he was compelled to take such steps as might
in the judgment of the President be lawful and necessary to raise for a
judicial decision the questions affecting the lawful right of the said
Stanton to resume the said office or the power of the said Stanton to
persist in refusing to quit the said office if he should persist in
actually refusing to quit the same; and to this end, and to this end
only, this respondent did, on the 21st day of February, 1868, issue the
order for the removal of the said Stanton, in the said first article
mentioned and set forth, and the order authorizing the said Lorenzo
Thomas to act as Secretary of War _ad interim_, in the said second
article set forth.
And this respondent, proceeding to answer specifically each substantial
allegation in the said first article, says: He denies that the said
Stanton, on the 21st day of February, 1868, was lawfully in possession
of the said office of Secretary for the Department of War. He denies
that the said Stanton, on the day last mentioned, was lawfully entitled
to hold the said office against the will of the President of the United
States. He denies that the said order for the removal of the said
Stanton was unlawfully issued. He denies that the said order was issued
with intent to violate the act entitled "An act regulating the tenure of
certain civil offices." He denies that the said order was a violation of
the last-mentioned act. He denies that the said order was a violation of
the Constitution of the United States, or of any law thereof, or of his
oath of office. He denies that the said order was issued with an intent
to violate the Constitution of the United States, or any law thereof, or
this respondent's oath of office; and he respectfully but earnestly
insists that not only was it issued by him in the performance of what he
believed to be an imperative official duty, but in the performance of
what this honorable court will consider was, in point of fact, an
imperative official duty. And he denies that any and all substantive
matters in the said first article contained, in manner and form as the
same are therein stated and set forth, do by law constitute a high
misdemeanor in office within the true intent and meaning of the
Constitution of the United States.
_Answer to Article II_.--And for answer to the second article this
respondent says that he admits he did issue and deliver to said Lorenzo
Thomas the said writing set forth in said second article, bearing
date at Washington, D.C., February 21, 1868, addressed to Brevet
Major-General Lorenzo Thomas, Adjutant-General United States Army,
Washington, D.C., and he further admits that the same was so issued
without the advice and consent of the Senate of the United States, then
in session; but he denies that he thereby violated the Constitution of
the United States or any law thereof, or that he did thereby intend to
violate the Constitution of the United States or the provisions of any
act of Congress; and this respondent refers to his answer to said first
article for a full statement of the purposes and intentions with which
said order was issued, and adopts the same as part of his answer to this
article; and he further denies that there was then and there no vacancy
in the said office of Secretary for the Department of War, or that he
did then and there commit or was guilty of a high misdemeanor in office;
and this respondent maintains and will insist--
1. That at the date and delivery of said writing there was a vacancy
existing in the office of Secretary for the Department of War.
2. That notwithstanding the Senate of the United States was then in
session, it was lawful and according to long and well-established usage
to empower and authorize the said Thomas to act as Secretary of War
_ad interim_.
3. That if the said act regulating the tenure of civil offices be held
to be a valid law, no provision of the same was violated by the issuing
of said order or by the designation of said Thomas to act as Secretary
of War _ad interim_.
_Answer to Article III_.--And for answer to said third article this
respondent says that he abides by his answer to said first and second
articles in so far as the same are responsive to the allegations
contained in the said third article, and, without here again repeating
the same answer, prays the same be taken as an answer to this third
article as fully as if here again set out at length; and as to the new
allegation contained in said third article, that this respondent did
appoint the said Thomas to be Secretary for the Department of War _ad
interim_, this respondent denies that he gave any other authority to
said Thomas than such as appears in said written authority, set out in
said article, by which he authorized and empowered said Thomas to act
as Secretary for the Department of War _ad interim_; and he denies
that the same amounts to an appointment, and insists that it is only
a designation of an officer of that Department to act temporarily as
Secretary for the Department of War _ad interim_--until an appointment
should be made. But whether the said written authority amounts to an
appointment or to a temporary authority or designation, this respondent
denies that in any sense he did thereby intend to violate the
Constitution of the United States, or that he thereby intended to
give the said order the character or effect of an appointment in the
constitutional or legal sense of that term. He further denies that there
was no vacancy in said office of Secretary for the Department of War
existing at the date of said written authority.
_Answer to Article IV_.--And for answer to said fourth article this
respondent denies that on the said 21st day of February, 1868, at
Washington aforesaid, or at any other time or place, he did unlawfully
conspire with the said Lorenzo Thomas, or with the said Thomas and any
other person or persons, with intent, by intimidations and threats,
unlawfully to hinder and prevent the said Stanton from holding said
office of Secretary for the Department of War, in violation of the
Constitution of the United States or of the provisions of the said act
of Congress in said article mentioned, or that he did then and there
commit or was guilty of a high crime in office. On the contrary thereof,
protesting that the said Stanton was not then and there lawfully the
Secretary for the Department of War, this respondent states that his
sole purpose in authorizing the said Thomas to act as Secretary for the
Department of War _ad interim_ was, as is fully stated in his answer to
the said first article, to bring the question of the right of the said
Stanton to hold said office, notwithstanding his said suspension, and
notwithstanding the said order of removal, and notwithstanding the said
authority of the said Thomas to act as Secretary of War _ad interim_, to
the test of a final decision by the Supreme Court of the United States
in the earliest practicable mode by which the question could be brought
before that tribunal.
This respondent did not conspire or agree with the said Thomas, or any
other person or persons, to use intimidation or threats to hinder or
prevent the said Stanton from holding the said office of Secretary for
the Department of War, nor did this respondent at any time command
or advise the said Thomas, or any other person or persons, to resort
to or use either threats or intimidation for that purpose. The only
means in the contemplation or purpose of respondent to be used are set
forth fully in the said orders of February 21, the first addressed to
Mr. Stanton and the second to the said Thomas. By the first order the
respondent notified Mr. Stanton that he was removed from the said office
and that his functions as Secretary for the Department of War were to
terminate upon the receipt of that order; and he also thereby notified
the said Stanton that the said Thomas had been authorized to act as
Secretary for the Department of War _ad interim_, and ordered the said
Stanton to transfer to him all the records, books, papers, and other
public property in his custody and charge; and by the second order this
respondent notified the said Thomas of the removal from office of the
said Stanton, and authorized him to act as Secretary for the Department
of War _ad interim_, and directed him to immediately enter upon the
discharge of the duties pertaining to that office and to receive the
transfer of all the records, books, papers, and other public property
from Mr. Stanton then in his custody and charge.
Respondent gave no instructions to the said Thomas to use intimidation
or threats to enforce obedience to these orders. He gave him no
authority to call in the aid of the military or any other force to
enable him to obtain possession of the office or of the books, papers,
records, or property thereof. The only agency resorted to, or intended
to be resorted to, was by means of the said Executive orders requiring
obedience. But the Secretary for the Department of War refused to obey
these orders, and still holds undisturbed possession and custody of that
Department and of the records, books, papers, and other public property
therein. Respondent further states that in execution of the orders so by
this respondent given to the said Thomas he, the said Thomas, proceeded
in a peaceful manner to demand of the said Stanton a surrender to him of
the public property in the said Department, and to vacate the possession
of the same, and to allow him, the said Thomas, peaceably to exercise
the duties devolved upon him by authority of the President. That, as
this respondent has been informed and believes, the said Stanton
peremptorily refused obedience to the orders so issued. Upon such
refusal no force or threat of force was used by the said Thomas, by
authority of the President or otherwise, to enforce obedience, either
then or at any subsequent time.
This respondent doth here except to the sufficiency of the allegations
contained in said fourth article, and states for ground of exception
that it is not stated that there was any agreement between this
respondent and the said Thomas, or any other person or persons, to use
intimidation and threats, nor is there any allegation as to the nature
of said intimidation and threats, or that there was any agreement to
carry them into execution, or that any step was taken or agreed to be
taken to carry them into execution; and that the allegation in said
article that the intent of said conspiracy was to use intimidation and
threats is wholly insufficient, inasmuch as it is not alleged that the
said intent formed the basis or became part of any agreement between the
said alleged conspirators; and, furthermore, that there is no allegation
of any conspiracy or agreement to use intimidation or threats.
_Answer to Article V_.--And for answer to the said fifth article this
respondent denies that on the said 21st day of February, 1868, or at
any other time or times in the same year before the said 2d day of
March, 1868, or at any prior or subsequent time, at Washington
aforesaid, or at any other place, this respondent did unlawfully
conspire with the said Thomas, or with any other person or persons,
to prevent or hinder the execution of the said act entitled "An act
regulating the tenure of certain civil offices," or that, in pursuance
of said alleged conspiracy, he did unlawfully attempt to prevent the
said Edwin M. Stanton from holding the said office of Secretary for the
Department of War, or that he did thereby commit, or that he was thereby
guilty of, a high misdemeanor in office. Respondent, protesting that
said Stanton was not then and there Secretary for the Department of War,
begs leave to refer to his answer given to the fourth article and to his
answer to the first article as to his intent and purpose in issuing the
orders for the removal of Mr. Stanton and the authority given to the
said Thomas, and prays equal benefit therefrom as if the same were here
again repeated and fully set forth.
And this respondent excepts to the sufficiency of the said fifth
article, and states his ground for such exception that it is not alleged
by what means or by what agreement the said alleged conspiracy was
formed or agreed to be carried out, or in what way the same was
attempted to be carried out, or what were the acts done in pursuance
thereof.
_Answer to Article VI_.--And for answer to the said sixth article this
respondent denies that on the said 21st day of February, 1868, at
Washington aforesaid, or at any other time or place, he did unlawfully
conspire with the said Thomas by force to seize, take, or possess the
property of the United States in the Department of War, contrary to
the provisions of the said acts referred to in the said article, or
either of them, or with intent to violate either of them. Respondent,
protesting that said Stanton was not then and there Secretary for the
Department of War, not only denies the said conspiracy as charged, but
also denies any unlawful intent in reference to the custody and charge
of the property of the United States in the said Department of War, and
again refers to his former answers for a full statement of his intent
and purpose in the premises.
_Answer to Article VII_.--And for answer to the said seventh article
respondent denies that on the said 21st day of February, 1868, at
Washington aforesaid, or at any other time and place, he did unlawfully
conspire with the said Thomas with intent unlawfully to seize, take, or
possess the property of the United States in the Department of War, with
intent to violate or disregard the said act in the said seventh article
referred to, or that he did then and there commit a high misdemeanor in
office. Respondent, protesting that the said Stanton was not then and
there Secretary for the Department of War, again refers to his former
answers, in so far as they are applicable, to show the intent with which
he proceeded in the premises, and prays equal benefit therefrom as
if the same were here again fully repeated. Respondent further takes
exception to the sufficiency of the allegations of this article as to
the conspiracy alleged upon the same grounds as stated in the exception
set forth in his answer to said article fourth.
_Answer to Article VIII_.--And for answer to the said eighth article
this respondent denies that, on the 21st day of February, 1868, at
Washington aforesaid, or at any other time and place, he did issue
and deliver to the said Thomas the said letter of authority set forth
in the said eighth article with the intent unlawfully to control the
disbursements of the money appropriated for the military service and
for the Department of War. This respondent, protesting that there was
a vacancy in the office of Secretary of War, admits that he did issue
the said letter of authority, and he denies that the same was with any
unlawful intent whatever, either to violate the Constitution of the
United States or any act of Congress. On the contrary, this respondent
again affirms that his sole intent was to vindicate his authority as
President of the United States, and by peaceful means to bring the
question of the right of the said Stanton to continue to hold the said
office of Secretary of War to a final decision before the Supreme Court
of the United States, as has been hereinbefore set forth; and he prays
the same benefit from his answer in the premises as if the same were
here again repeated at length.
_Answer to Article IX_.--And for answer to the said ninth article
the respondent states that on the said 22d day of February, 1868, the
following note was addressed to the said Emory by the private secretary
of the respondent: