perform the duties of such office. And if the Senate shall concur in such suspension and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended: Provided, however, That the President, in case he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspension to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office.

SEC. 3. And be it further enacted, That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office.

SEC. 4. And be it further enacted, That nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law.

SEC. 5. And be it further enacted, That if any person shall, contrary to the provisions of this act, accept any appointment

to or employment in any office, or shall hold or exercise or attempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared to be, guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court.

SEC. 6. And be it further enacted, That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, 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 ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court: Provided, That the President shall have power to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointment shall have been advised and consented to by the Senate.

SEC. 7. And be it further enacted, That it shall be the duty of the Secretary of the Senate, at the close of each session thereof, to deliver to the Secretary of the Treasury, and to each of his assistants, and to each of the auditors, and to each of the comptrollers in the treasury, and to the treasurer, and to the register of the treasury, a full and complete list, duly certified, of all the persons who shall have been nominated to and rejected by the Senate during such session, and a like list of all the offices to which nominations shall have been made and not confirmed and filled at such session.

SEC. 8. And be it further enacted, That whenever the President shall, without the advice and consent of the Senate, designate, authorize, or employ any person to perform the duties of any office, he shall forthwith notify the Secretary of the Treasury thereof; and it shall be the duty of the Secretary of the

Treasury thereupon to communicate such notice to all the proper accounting and disbursing officers of his department.

SEC. 9. And be it further enacted, That no money shall be paid or received from the treasury, or paid or received from or retained out of any public moneys or funds of the United States, whether in the treasury or not, to or by or for the benefit of any person appointed to or authorized to act in or holding or exercising the duties or functions of any office contrary to the provisions of this act; nor shall any claim, account, voucher, order, certificate, warrant, or other instrument providing for or relating to such payment, receipt, or retention, be presented, passed, allowed, approved, certified, or paid by any officer of the United States, or by any person exercising the functions or performing the duties of any office or place of trust under the United States, for or in respect to such office, or the exercising or performing the functions or duties thereof; and every person who shall violate any of the provisions of this section shall be deemed guilty of a high misdemeanor, and, upon trial and conviction thereof, shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both said punishments, in the discretion of the court.

No. 58. Act of Indemnity

March 2, 1867

By an act of May 11, 1866, amending the habeas corpus act of March 3, 1863 [No. 32], orders from the President, the Secretary of War, or a military commander were declared to be a defence to suits on account of such acts. An act of February 5, 1867, gave authority to United States courts to issue the writ of habeas corpus in the case of any person restrained of liberty in violation of the Constitution or laws of the United States, and extended the appellate jurisdiction of the Supreme Court to all such cases; while the act of March 2, 1867, validated all proclamations and orders of the President respecting martial law, and acts done under them, from March 4, 1861, to July 1,

1866. The case of Ex parte McCardle raised the question of the legality of an arrest under the Civil Rights Act of March 2, 1867. The Supreme Court refused to dismiss the case and heard the appeal on its merits. To protect the reconstruction policy of Congress from judicial interference at this point, an act of March 27, 1868, passed over the veto, took away the right of appeal from the circuit court conferred by the act of February 5, 1867. A bill validating the proclamations of the President, etc., was introduced in the House, December 10, 1866, by Bingham of Ohio, and passed February 23, 1867, by a vote of 112 to 32, 46 not voting. The Senate passed the bill without amendment March 2, the vote being 36 to 8.

REFERENCES. Text in U.S. Statutes at Large, XIV, 432, 433. For the proceedings see the House and Senate Journals, 39th Cong., 2d Sess., and the Cong. Globe. For the case of Ex parte McCardle see 6 Wallace, 324; 7 ibid., 512; see also Jones v. Seward, 40 Barbour (N.Y.), 563; 41 ibid., 269; 26 Howard's Practice Reports, 433.

An Act to declare valid and conclusive certain Proclamations of the President, and Acts done in Pursuance thereof, or of his Orders, in the Suppression of the late Rebellion against the United States.

Be it enacted That all acts, proclamations, and orders of the President of the United States, or acts done by his authority or approval after the fourth of March, anno Domini eighteen hundred and sixty-one, and before the first day of July, anno Domini eighteen hundred and sixty-six, respecting martial law, military trials by courts-martial or military commissions, or the arrest, imprisonment and trial of persons charged with participation in the late rebellion against the United States, or as aiders or abettors thereof, or as guilty of any disloyal practice in aid. thereof, or of any violation of the laws or usages of war, or of affording aid and comfort to rebels against the authority of the United States, and all proceedings and acts done or had by courts-martial or military commissions, or arrests and imprisonments made in the premises by any person by the authority of the orders or proclamations of the President, made as aforesaid, or in aid thereof, are hereby approved in all respects, legalized and made valid, to the same extent and with the same effect as if said orders and proclamations had been issued and made,

and said arrests, imprisonments, proceedings, and acts had been done under the previous express authority and direction of the Congress of the United States, and in pursuance of a law thereof previously enacted and expressly authorizing and directing the same to be done. And no civil court of the United States, or of any State, or of the District of Columbia, or of any district or territory of the United States, shall have or take jurisdiction of, or in any manner reverse any of the proceedings had or acts done as aforesaid, nor shall any person be held to answer in any of said courts for any act done or omitted to be done in pursuance or in aid of any of said proclamations or orders, or by authority or with the approval of the President within the period aforesaid, and respecting any of the matters aforesaid; and all officers and other persons in the service of the United States, or who acted in aid thereof, acting in the premises shall be held prima facie to have been authorized by the President; and all acts and parts of acts heretofore passed, inconsistent with the provisions of this act, are hereby repealed.

APPROVED, March 2, 1867.

No. 59.

Command of the Army

March 2, 1867

SECTION 2 of the army appropriation act of March 2, 1867, virtually deprived the President, in certain cases, of the command of the army. The constitutionality of the provision was debated at some length, but an amendment offered in the Senate, February 26, by Reverdy Johnson of Maryland, to strike out the section was lost by a vote of 8 to 28, and other motions to the same effect failed of support. Sections 5 and 6 were added to the bill by the Senate. President Johnson approved the bill in order not to defeat the appropriations, but he entered his protest against the army provision. The section relating to the militia was repealed by acts of January 14 and March 3, 1869.

REFERENCES. Text in U.S. Statutes at Large, XIV, 486, 487. For the proceedings see the House and Senate Journals, 39th Cong., 2d Sess., and the Cong. Globe. The important discussion was in the Senate.