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Mr. Johnson's alleged violation of the act of Congress known as the Tenure-of-Office Act, constituted the ostensible basis of his impeachment in 1868. As stated, it had been passed for the purpose of restricting the power of the President over Executive appointments. That Act, therefore, becomes a very important and conspicuous incident in the impeachment affair, as its alleged violation constituted the only material accusation, set out in various forms, in the entire list of charges.
The proceedings had on the passage of that bill are inserted at some length here, as a technical knowledge of its history, character and purpose, is essential to a correct apprehension of the controversy that had arisen between the President and Congress.
The Tenure-of-Office bill was introduced in the Senate by Mr. Williams, of Oregon, Dec. 3rd, 1866, and on the 5th was referred to the Committee on Retrenchment. On the 10th Mr. Edmunds, in the name of the committee, reported it back to the Senate with the following remarks:
The joint select Committee on Retrenchment, to whom was referred the bill to regulate the tenure of offices, have had the same under consideration, and have instructed me to report the bill back, with a recommendation of certain amendments, which being adopted, the committee are of the opinion that the bill ought to pass. I beg leave to say in connection with this report that we have reported this bill and these amendments regulating removals from office and appointments to office so far as concerns officers whose nominations require the confirmation of the Senate, and have adopted what appears to us to be a feasible scheme in that respect, in no spirit of hostility to any party or administration whatever, but in what we conceive to be the true Republican interest of the country, under all administrations, under the domination of all parties in the growth which is before us in the future; and in that spirit I shall ask the attention of the Senate to the bill when it comes to be considered. I move that the amendment be printed, and that the bill be made the special order for Thursday next, at one o'clock.
On the 10th of January, 1867, on motion of Mr. Edmunds, the bill was taken up for consideration. As the first section of the bill was the only portion over which there was any serious controversy, or pertinent to this recital, only that section is produced here. It is as follows:
That every person (excepting the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General), 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.
Mr. Howe objected to the exception of the Cabinet officers from the operation of the bill, and Mr. Edmunds responded that:
It did seem to the Committee, after a great deal of consultation and reflection, that it was right and just that the Chief Executive of the Nation, in selecting these named Secretaries, who, by law, and by the practice of the country, and officers analogous to whom by the practice of all other countries, are the confidential advisers of the Executive respecting the administration of all his Departments, should be persons who were personally agreeable to him, in whom he could place entire confidence and reliance, and that whenever it should seem to him that the state of relations, between him and any of them had become such as to render this relation of confidence and trust and personal esteem inharmonious, HE SHOULD IN SUCH CASE BE ALLOWED TO DISPENSE WITH THE SERVICES OF THAT OFFICER IN VACATION AND HAVE SOME OTHER PERSON ACT IN HIS STEAD. We thought that so much discretion, so much confidence, so much respect ought to be properly attributed to the Chief Magistrate of the Nation. It may happen that at some particular time--some people may suppose that it has happened now--the Chief Magistrate for the time being ought not to be invested with such powers; but the Committee have recommended the adoption of this rule respecting the tenure-of-office as a permanent and systematic, and as they believe, an appropriate regulation of the Government for all administrations and for all time; and it did appear to them (whether the reason may command itself to the Senate or not), that it was just to the Executive, and on the whole best for the interest of the Nation, that he should be allowed during a recess of the Senate to change his confidential advisers if it should appear to him to be fit, subject to that general responsibility which every officer must be held to the public and to the Senate when they meet again.
Mr. Williams said:
I prepared the original bill in this case, which contains in different words the exception contained in the amendment reported by the Committee. I do not regard the exception as of any real practical consequence, because I suppose if the President and any head of a Department should disagree so as to make their relations unpleasant, and the President should signify a desire that the head of a Department retire from the Cabinet, THAT WOULD FOLLOW WITHOUT ANY POSITIVE ACT OF REMOVAL ON THE PART OF THE PRESIDENT.
Mr. Fessenden said:
The Constitution imposes upon the President of the United States the duty of executing the laws; it does not impose that duty upon the Secretaries. They are creatures of the law and not of the Constitution directly. Some, and perhaps the greater part, of their functions are as advisers of the President and to aid him in executing the laws in their several Departments. There are some duties that are specifically conferred upon them by Congress. Their relation to the President, as has been well said by gentlemen, is that mostly of confidential advisers. With the exception of the particular duties imposed upon them by law, and on the Secretary of the Treasury more than on the others, they do nothing of their own motion, but act by order of the President in discharging the particular duties of their office. * * * That being the peculiar condition of affairs it has always been considered since the foundation of the Government, as a matter of course, as a general rule--there may have been one or two exceptions, and I think there have been, but I am not very positive on that point--that the President might select such persons as he pleased to be members of his Cabinet. Of course the confirmation of the Senate is necessary; but the general idea of the Senate has been, whether they liked the men or not, to confirm them without any difficulty, because in executing the great and varied interests of this great country it is exceedingly important that there should be the utmost harmony between those who are charged with that execution.
The bill passed as reported and went to the House. That body amended it by making Cabinet officers non-removable by the President without the consent of the Senate, and sent the bill back to the Senate, when Mr. Sherman said:
It (the Tenure-of-Office bill) ought to have been passed, and probably would have been passed, long ago, if a different condition of affairs had existed before. But when you propose to extend that principle to Cabinet officers, a very different state of affairs arises, and different circumstances apply to this subject. Now I say, that if a Cabinet officer should attempt to hold his office for a moment beyond the time when he retained the entire confidence of the President, I would not vote to retain him, NOR WOULD I COMPEL THE PRESIDENT TO LEAVE ABOUT HIM IN THESE HIGH POSITIONS A MAN IN WHOM HE DID NOT ENTIRELY TRUST, both personally and politically. It would be unwise to require him to administer the Government without agents of his own choosing. It seems to me, therefore, that it would be unwise for the Senate to engraft in this bill a provision that would enable a Cabinet officer to hold on to his office in violation of the will of his Chief. * * * Suppose the personal relations between a Cabinet officer and the President became so unpleasant that they could have no personal intercourse. The Senator from Wisconsin (Mr. Howe), says in such a case the Cabinet officer would resign. Suppose he should hold on to his power and position--what then? There is no power to remove him, and the President can have no intercourse with him. Would you compel such a state of affairs? It seems to me that it would be unwise to do so. That the Senate had no such purpose is shown by its vote twice to make this exception. That this provision does not apply to the present case, is shown by the fact that its language is so framed as NOT TO APPLY TO THE PRESENT PRESIDENT. * * * It would not prevent the present President from removing the present Secretary of War, the Secretary of the Navy, or the Secretary of State.
A considerable number of Senators participated in the debate, which was able and exhaustive to an exceptional degree, on both sides, and occupied several days in the various stages of the proceeding.
Mr. Edmunds closed the debate in the Senate with the following remarks:
I do not rise to prolong the debate, but only to express the hope that the debate on this question may terminate--that we may come to a vote. * * * While I should be glad to occupy some time in reply to some things that have fallen in the course of this debate, I feel it to be due to the business of the Senate to abstain. I hope the Senate will disagree to this amendment, (made by the House) and adhere to the bill as it stands.
The vote was then taken, and resulted in 17 for agreeing to the House amendment, and 28 against it.
The action of the Senate was reported to the House and Conference Committees were appointed by the two houses.
On the 18th of February, the following substitute for the first section of the bill was reported by the Committee of Conference and adopted by both Houses, and the bill went to the President:
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 TERMS OF THE PRESIDENT BY WHOM THEY MAY HAVE BEEN APPOINTED, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.
On Monday, March 2nd, 1867, the President returned the bill to the Senate, in which house it had originated, with his objections thereto, as follows:
To the Senate of the United States:
I have carefully examined the bill to regulate the tenure of certain civil offices. The material portion of the bill is contained in the first section, and is of the effect following, namely:
"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 appointed by the President, with the advice and consent of the Senate, and duly qualified; and 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 for one month thereafter, subject to removal by and with the advice and consent of the Senate."
These revisions are qualified by a reservation in the fourth section, "that nothing contained in the bill shall be construed to extend the term of any office the duration of which is limited by law." In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill, in this respect, conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States is a principle which has been not more distinctly declared by judicial authority and judicial commentators than it has been uniformly practiced upon by the legislative and executive departments of the Government. The question arose in the House of Representatives so early as the 16th day of June, 1789, on the bill for establishing an executive department, denominated "The Department of Foreign Affairs." The first clause of the bill, after recapitulating the functions of that officer and defining his duties, had these words: "To be removable from office by the President of the United States." It was moved to strike out these words, and the motion was sustained with great ability and vigor. It was insisted that the President could not constitutionally exercise the power of removal exclusive of the Senate; that the Federalist so interpreted the Constitution when arguing for its adoption by the several States; that the Constitution had nowhere given the President power of removal, either expressly or by strong implication; but on the contrary, had distinctly provided for removals from office by impeachment only. A construction which denied the power of removal by the President was further maintained by arguments drawn from the danger of the abuse of the power; from the supposed tendency of an exposure of public officers to capricious removal; to impair the efficiency of the civil service; from the alleged injustice and hardship of displacing incumbents, dependent upon their official stations, without sufficient consideration; from a supposed want of responsibility on the part the President, and from an imagined defect of guarantees against a vicious President, who might incline to abuse the power.
On the other hand, an exclusive power of removal by the President was defended as a true exposition of the text of the Constitution. It was maintained that there are certain causes for which persons ought to be removed from office without being guilty of treason, bribery, or malfeasance, and that the nature of things demands that it should be so. "Suppose," it was said, "a man becomes insane by the visitation of God, and is likely to ruin our affairs; are the hands of Government to be confined front warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment, is the error not to be corrected; suppose he acquire vicious habits and incurable indolence, or totally neglect the duties of his office, which shall work mischief to the public welfare, is there no way to arrest the threatened danger? Suppose he become odious and unpopular by reason of the measures he pursues, and this he may do without committing any positive offense against the law, must he preserve his office in despite of the popular will? Suppose him grasping for his own aggrandizement and the elevation of his connections by every means short of the treason defined by the Constitution, hurrying your affairs to the precipice of destruction, endangering your domestic tranquility, plundering you of the means of defense, alienating the affections of your allies, and promoting the spirit of discord, must the tardy, tedious, desultory road, by way of impeachment, be traveled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the Government?" The nature of things, the great objects of society, the express objects of the Constitution itself require that this thing should be otherwise. To unite the Senate with the President "in the exercise of the power" it was said, would involve us in the most serious difficulty. "Suppose a discovery of any of these events should take place when the Senate is not in session, how is the remedy to be applied? The evil could be avoided in no other way than by the Senate sitting always." In regard to the danger of the power being abused if exercised by one man, it was said "that the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions;" that such a body is more likely to misuse the power of removal than the man whom the united voice of America calls to the presidential chair. As the nature of Government requires the power of removal, it was maintained "that it should be exercised in this way by the hand capable of exerting itself with effect, and the power must be conferred on the President by the Constitution as the executive officer of the Government." Mr. Madison, whose adverse opinion in the Federalist had been relied upon by those who denied the exclusive power, now participated in the debate. He declared that he had reviewed his former opinions, and he summed up the whole case as follows:
"The Constitution affirms that the executive power is vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says that in appointing to office the Senate shall be associated with the President, unless, in the case of inferior officers, when the law shall otherwise direct. Have we (that is, Congress) a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I return to assert that the Legislature has no right to diminish or modify his executive authority. The question now resolves itself into this: is the power of displacing an executive power? I conceive that if any power whatever is in the Executive, it is in the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office by associating the Senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such appointment? Should we be authorized, in defiance of that clause in the Constitution--the executive power shall be vested in the President--to unite the Senate with the President in the appointment to office? I conceive not. It is admitted that we should not be authorized to do this, I think it may be disputed whether we have a right to associate there in removing persons from office, the one power being as much of an executive nature as the other; and the first is authorized by being excepted out of the general rule established by the Constitution in these words: 'The executive power shall be vested in the President.'"
The question thus ably and exhaustively argued was decided by the House of Representatives, by a vote of 34 to 20, in favor of the principle that the executive power of removal is vested by the Constitution in the Executive, and in the Senate by the casting vote of the Vice President. The question has often been raised in subsequent times of high excitement, and the practice of the Government has nevertheless conformed in all cases to the decision thus early made. * * * Chancellor Kent's remarks on the subject are as follows:
"On the first organization of the Government it was made a question whether the power of removal in case of officers appointed to hold at pleasure resided nowhere but in the body which appointed, and, of course, whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the State conventions by the author of the Federalist. But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. The words of the act (establishing the Treasury Department) are: 'And whenever the same shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act.' This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon as decisive authority in the case. It applies equally to every other officer of the Government appointed by the President, whose term of duration is not specially declared. It is supported by the weighty reason that the subordinate officers in the executive department ought to hold at the pleasure of the head of the Department, because he is invested generally with the executive authority, and the participation in that authority by the Senate was an exception to a general principle and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it."
Thus has the important question presented by this bill been settled, in the language of the late Daniel Webster (who, while dissenting from it, admitted that it was settled), by construction, settled by precedent, settled by the practice of the Government, and settled by statute.
The events of the last war furnished a practical confirmation of the wisdom of the Constitution as it has hitherto been maintained in many of its parts, including that which is now the subject of consideration. When the war broke out rebel enemies, traitors, abettors, and sympathizers were found in every department of the Government, as well in the civil service as in the land and naval military service. They were found in Congress and among the keepers of the Capitol, in foreign missions, in each and all of the Executive Departments, in the judicial service, in the Post Office, and among the agents for conducting Indian affairs; and upon probable suspicion they were promptly displaced by my predecessor, so far as they held their offices under executive authority, and their duties were confided to new and loyal successors. No complaints against that power or doubts of its wisdom, were entertained in any quarter.
Having at an early period accepted the Constitution in regard to the executive office in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction or in any assumed necessity of the times for changing those opinions. For these reasons I return the bill to the Senate, in which House it originated, for the further consideration of Congress, which the Constitution prescribes. Insomuch as the several parts of the bill which I have not considered are matters chiefly of detail, and are based altogether upon the theory of the Constitution from which I am obliged to dissent, I have not thought it necessary to examine them with a view to make them an occasion of distinct and special objections. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitutions for the self-government of free States and nations.
But I think experience has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitutions of self government when once happily established. I know no other way in which they can be preserved and maintained except by a constant adherence to them through the various vicissitudes of national existence, with such adaptations as may become necessary, always to be effected, however, through the agencies and in the forms prescribed in the original constitutions themselves. Whenever administration fails or seems to fail in securing any of the great ends for which Republican Government is established, the proper course seems to be to renew the original spirit and forms of the Constitution itself.
The bill was promptly passed in both Houses over the President's veto and became a law.
As pertinent and incident to the history of this controversy, is the communication of the President notifying the Senate of the suspension of Mr. Stanton, Aug. 12, 1867. The President said:
The Tenure-of-Office Act did not pass without notice. Like other acts, it was sent to the President for approval. As is my custom I submitted it to the consideration of my Cabinet for their advice whether I should approve it or not. I was a grave question of constitutional law, in which I would of course rely mostly upon the opinion of the Attorney General, and of Mr. Stanton, who had once been Attorney General. EVERY MEMBER OF MY CABINET ADVISED ME THAT THE PROPOSED LAW WAS UNCONSTITUTIONAL. All spoke without doubt or reservation; but MR. STANTON'S CONDEMNATION OF THE LAW WAS THE MOST ELABORATE AND EMPHATIC. He referred to the Constitutional provisions, the debates in Congress, especially to the speech of Mr. Buchanan when a Senator, to the decisions of the Supreme Court, and to the usage from the beginning of the Government through every successive administration, all concurring to establish the right of removal as vested in the President. To all these he added the weight of his own deliberate judgment, and advised me that it was my duty to defend the power of the President from usurpation and veto the law.
During the recess of Congress in the Summer of 1867, the President suspended Mr. Stanton from the War Office and appointed Gen. Grant Secretary of War ad interim. Gen. Grant was then understood as supporting the President in his controversy with Mr. Stanton, and promptly accepted the appointment, holding it until the following December, when the change was duly reported to the Senate. The Senate refused to sanction Mr. Stanton's suspension, and he consequently resumed his position of Secretary of War and retained it until the close of the Impeachment trial--the Senate then, in effect, by rejecting the Impeachment, declaring that the President had the right to remove him.
Very naturally, after Mr. Stanton's restoration to the War Office by the refusal of the Senate to sanction his suspension, the relations between himself and the President were embittered and many efforts were made by mutual friends to induce Mr. Stanton to resign. Conspicuous among these were Gen. Grant, the General of the Army, and Gen. Sherman, the next in rank, as shown in the following note from Gen. Sherman to the President; but a few weeks before the crisis came. It explains itself, as showing the relations then subsisting between the parties mentioned:
332 K St., Washington, Jan, 18th.
I regretted, this morning, to say that I had agreed to go down to Annapolis, to spend Monday with Admiral Porter. Gen. Grant has to leave for Richmond on Monday morning at 6 o'clock. At a conversation with the General, after an interview wherein I offered to go with him on Monday morning to Mr. Stanton and say it was our joint opinion that he should resign, it was found impossible by reason of his going to Richmond and my going to Annapolis. The General proposed this course. He will tell you to-morrow and offer to go to Mr. Stanton to say that for the good of the service of the country he ought to resign--this on Sunday. On Monday, I will call on you, and if you think it necessary, I will do the same--call on Mr. Stanton and tell him he should resign. If he will not, then it will be time to consider ulterior measures. In the meantime, it also happens that no necessity exists for precipitating measures.
Yours truly, W. T. Sherman.
On Saturday, February 23, 1868, the day following the removal of Mr. Stanton, Mr. Johnson sent to the Senate the name of Mr. Thomas Ewing, senior, of Ohio, as his successor. The Senate had adjourned for the day when the President's Secretary reached the Capitol, between 12 and 1 o'clock, but the nomination was formally communicated on the following Monday. Of this nomination, Mr. Blaine has written, that "no name could have given better assurance of good intentions and upright conduct than that of Mr. Ewing. He was a man of lofty character, of great eminence in his profession of the law, and with wide and varied experience in public life. He had held high rank as a Senator in the Augustan period of the Senate's learning and eloquence, and he had been one of the ablest members of the distinguished Cabinets organized by the only two Presidents elected by the Whig Party. He had reached the ripe age of seventy-eight years, but still in complete possession of all his splendid faculties. He had voted for Mr. Lincoln at both elections, had been a warm supporter of the contest for the Union, and was represented by his own blood on many of the great battlefields of the war."
No notice was taken by the Senate of this nomination.
Here was offered an opportunity for the settlement of the dispute over the War Office on fair and honorable terms to all parties concerned. But that was not what the impeachers wanted. They wanted to get Mr. Johnson out. They thought they had a pretext that they could sustain by making it a party question, and did not want a settlement on any other terms--so no attention was given to Mr. Ewing's nomination. It was ignored and the impeachment movement went on.