I come at once to the question of the application of the statute to Mr.
Stanton, so as to protect him against removal without the consent of
the Senate. And here I doubt if any question would have arisen but for
the hasty words of the Senator from Ohio [Mr. SHERMAN], so often quoted
in this proceeding.
Unquestionably the Senator from Ohio, when the report of the Conference
Committee of the two Houses was under discussion, stated that the
statute did not protect Mr. Stanton in his office; but this was the
individual opinion of this eminent Senator, and nothing more. On
hearing it, I cried from my seat, “The Senator must speak for himself”;
for I held the opposite opinion. It was clear to my mind that the
statute was intended to protect Mr. Stanton, and that it did protect
him. The Senator from Oregon [Mr. WILLIAMS], who was Chairman of the
Conference Committee and conducted its deliberations, informs us that
there was no suggestion in committee that the statute did not protect
all of the President’s Cabinet, including, of course, Mr. Stanton.
The debates in the House of Representatives are the same way. Without
holding the scales to weigh any such conflicting opinions, I rest on
the received rule of law, that they cannot be taken into account in
determining the meaning of the statute. And here I quote the judgment
of the Supreme Court of the United States, pronounced by Chief Justice
Taney:--
“In expounding this law, _the judgment of the Court cannot in
any degree be influenced by the construction placed upon it by
individual members of Congress in the debate which took place
on its passage_, nor by the motives or reasons assigned by them
for supporting or opposing amendments that were offered. The
law as it passed is the will of the majority of both Houses,
and the only mode in which that will is spoken is in the Act
itself; and we must gather their intention from the language
there used, comparing it, when any ambiguity exists, with the
laws upon the same subject, _and looking, if necessary, to the
public history of the times in which it was passed_.”[199]
It is obvious to all acquainted with a legislative body that the rule
thus authoritatively declared is the only one that could be safely
applied. The Senate, in construing the present statute, must follow
this rule. Therefore I repair to the statute, stopping for a moment to
glance at the public history of the times, in order to understand its
object.
We have seen how the President, in carrying forward his usurpation
in the interest of the Rebellion, trifled with the Senate in regard
to appointments, and abused the traditional power of removal, openly
threatening good citizens in office that he would “kick them out,” and
filling all vacancies, from high to low, with creatures whose first
promise was to sustain his barbarous policy. I do not stop to portray
this outrage, constituting an impeachable offence, according to the
declared opinion of Mr. Madison,[200] one of the strongest advocates of
the Presidential power of removal. Congress, instead of adopting the
remedy suggested by this father of the Constitution, and expelling the
President by process of impeachment, attempted to wrest from him the
power he was abusing. For this purpose the Tenure-of-Office Act was
passed. It was deemed advisable to include the Cabinet officers within
its protection; but, considering the intimate relations between them
and the President, a proviso was appended, securing to the latter the
right of choosing them in the first instance. Its object was, where
the President finds himself, on accession to office, confronted by a
hostile Senate, to assure this right of choice, without obliging him to
keep the Cabinet of his predecessor; and accordingly it says to him,
“Choose your own Cabinet, but expect to abide by your choice, unless
you can obtain the consent of the Senate to a change.”
Any other conclusion is flat absurdity. It begins by misconstruing the
operative words of the proviso, that the Cabinet officers “shall hold
their offices respectively for and during the term of the President by
whom they may have been appointed.” On the face there is no ambiguity
here. Only by going outside can any be found, and this disappears on a
brief inquiry. At the date of the statute Andrew Johnson had been in
office nearly two years. Some of his Cabinet were originally appointed
by President Lincoln; others had been formally appointed by himself.
But all were there equally by his approval and consent. One may do an
act himself, or make it his own by ratifying it, when done by another.
In law it is equally his act. Andrew Johnson did not originally
appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their
appointments; so that at the passage of the statute they stood on the
same footing as if originally appointed by him. Practically, and in the
sense of the statute, they were appointed by him. They were a Cabinet
of his own choice, just as much as the Cabinet of his successor, duly
appointed, will be of his own choice. If the statute compels the
latter, as it clearly does, to abide by his choice, it is unreasonable
to suppose that it is not equally obligatory on Andrew Johnson.
Otherwise there is special immunity for the President whose misconduct
rendered it necessary, and Congress is exhibited as legislating for
some future unknown President, and not for Andrew Johnson, already too
well known.
Even the Presidential apologists do not question that the members
of the Cabinet commissioned by Andrew Johnson are protected by the
statute. How grossly unreasonable to suppose that Congress intended to
make such a distinction among his Cabinet as to protect those whose
support of his usurpation had gained the seats they enjoyed, while
it exposed to his caprice a great citizen whose faithful services
during the war had won the gratitude of his country, whose continuance
in office was regarded as an assurance of public safety, and whose
attempted removal has been felt as a national calamity! Clearly, then,
it was the intention of the statute to protect the whole Cabinet,
whether originally appointed by Andrew Johnson, or originally appointed
by his predecessor and continued by him.
I have no hesitation in saying that no other conclusion is possible
without violence to the statute. I cannot forget, that, while we are
permitted “to open the law upon doubts,” we are solemnly warned “not
to open doubts upon the law.”[201] It is Lord Bacon who gives us this
rule, whose obvious meaning is, that, where doubts do not exist, they
should not be invented. It is only by this forbidden course that any
question can be raised. If we look at the statute in its simplicity,
its twofold object is apparent,--first, to prohibit removals, and,
secondly, to limit certain terms of service. The prohibition to remove
plainly applies to all; the limitation of service applies only to
members of the Cabinet. I agree with the excellent Senator from Iowa
[Mr. HARLAN], that this analysis removes all ambiguity. The pretension
that any one of the Cabinet was left to the unchecked power of the
President is irreconcilable with the concluding words of the proviso,
which declare that they shall be “subject to removal by and with the
advice and consent of the Senate,”--thus expressly excluding the
prerogative of the President.
Let us push this inquiry still further, by looking more particularly at
the statute reduced to a skeleton, so that we may see its bones.
1. _Every person holding any civil office_, by and with the advice
and consent of the Senate, is entitled to hold such office until a
successor is appointed.
2. If members of the Cabinet, _then during the term of the President by
whom they have been appointed_, and one month thereafter, unless sooner
removed by consent of the Senate.
Mr. Stanton obviously falls within the general class, “every person
holding any civil office”; and he is entitled to the full benefit of
the provision for their benefit.
As obviously he falls within the sub-class, members of the Cabinet.
Here his rights are equally clear. It is in the discussions under this
head that the ingenuity of lawyers has found amplest play, mainly
turning upon what is meant by “term” in the statute. I glance for a
moment at some of these theories.
1. One pretension is, that, the “term” having expired with the life
of President Lincoln, Mr. Stanton is retroactively legislated out
of office on the 15th May, 1865. As this is a penal statute, this
construction makes it _ex post facto_, and therefore unconstitutional.
It also makes Congress enact the absurdity that Mr. Stanton had for two
years been holding office illegally; whereas he had been holding under
the clearest legal title, which could no more be altered by legislation
than black could be made white. A construction rendering the statute at
once unconstitutional and absurd must be rejected.
2. The quibble that would exclude Mr. Stanton from the protection
of the statute, because he was appointed during the first “term” of
President Lincoln, and the statute does not speak of “terms,” is hardly
worthy of notice. It leads to the same absurd results as follow from
the first supposition, enhanced by increasing the retroactive effect.
3. Assuming that the statute does not terminate Mr. Stanton’s right a
month after President Lincoln’s death, it is insisted that it must take
effect at the earliest possible moment, and therefore on its passage.
From this it follows that Mr. Stanton has been illegally in office
since the 2d of March, 1867, and that both he and the President have
been guilty of a violation of law, the former in exercising the duties
of an office to which he had no right, and the latter for appointing
him, or continuing him in office, without consent of the Senate, in
violation of the Constitution and the statute in question. This is
another absurdity to be rejected.
Assuming, as is easy, that it is President Lincoln’s “term,” we have
the better theory, that it did not expire with his life, but continues
until the 4th of March, 1869, in which event Mr. Stanton is clearly
entitled to hold until a month thereafter. This construction is
entirely reasonable, and in harmony with the Constitution, and the
legislation under it. I confess that it is one to which I have often
inclined.
This brings me back to the construction with which I began, and I
find Andrew Johnson the President who appointed Mr. Stanton. To make
this simple, it is only necessary to read “chosen” for “appointed”
in the statute,--or, if you please, consider the continuance of
Mr. Stanton in office, with the concurrence of the President, as a
practical appointment, or equivalent thereto. Clearly Mr. Stanton
was in office, when the statute passed, from the “choice” of the
President. Otherwise he would have been removed. His continuance was
like another commission. This carries out the intention of the framers
of the statute, violates no sound canon of construction, and is
entirely reasonable in every respect. Or, if preferred, we may consider
the “term” that of President Lincoln, and then Mr. Stanton would be
protected in office until one month after the 4th of March next. But
whether the “term” be of Andrew Johnson or President Lincoln, he is
equally protected.
Great efforts have been made to show that Mr. Stanton does not come
within the special protection of the proviso, without considering the
irresistible consequence that he is then within the general protection
of the statute, being “a person holding a civil office.” Turn him
out of the proviso and he falls into the statute, unless you are as
imaginative as one of the apologists, who placed him in a sort of
intermediate limbo, like a lost spirit floating in space, as in one
of Flaxman’s Illustrations of Dante. But the imagination of this
conception cannot make us insensible to its surpassing absurdity. It is
utterly unreasonable, and every construction must be rejected which is
inconsistent with common sense.