It remains to consider if the removal and substitution were not each
in violation of the National Constitution. The case is new, for never
until now could it arise. Assuming that the Tenure-of-Office Act does
not protect Mr. Stanton, who is thus left afloat in the limbo between
the body of the Act and the proviso, then the President is remitted to
his prerogative under the National Constitution, and he must be judged
accordingly, independently of statute. Finding the power of removal
there, he may be justified; but not finding it there, he must bear the
consequences. And here the Tenure-of-Office Act furnishes a living and
practical construction of the National Constitution from which there is
no appeal.
From the Constitution it appears that the power of appointment is
vested in the President and Senate conjointly, and that nothing is said
of the power of removal, except in case of impeachment, when it is
made by the Senate. Therefore the power of removal is not express, but
implied only, and must exist, if at all, as a necessary consequence
of the power to appoint. But in whom? According to a familiar rule,
the power which makes can unmake. Unless this rule be rejected, the
power of removal must exist in the President and Senate conjointly;
nor is there anything unreasonable in this conclusion. Removal can
always be effected during the session of the Senate by the nomination
and confirmation of a successor, while provision can be made for the
recess by an Act of Congress. This conclusion would be irresistible,
were the Senate always in session; but since it is not, and since cases
may arise during the recess requiring the immediate exercise of this
power, it has been argued that at least during the recess it must be in
the President alone. From this position there has been a jump to the
next, and it has been insisted, that, since, for the sake of public
convenience, the power of removal exists in the President, he is at
liberty to exercise it either during the recess or the session itself.
Here is an obvious extension of the conclusion, which the premises do
not warrant. The reason failing, the conclusion must fail. _Cessante
ratione legis, cessat ipsa lex._ Especially must this be the case
under the National Constitution. A power founded on implied necessity
must fail when the necessity does not exist. The implication cannot be
carried beyond the reason. Therefore the power of removal during the
recess, doubtful at best, unless sanctioned by Act of Congress, cannot
be extended to justify the exercise of that power while the Senate is
in session, ready to act conjointly with the President.
Against this natural conclusion, we have the assumption that a contrary
construction of the National Constitution was established after debate
in 1789. I avoid all details with regard to this debate, cited and
considered so often. I content myself by asking if at best it was
anything but a Congressional construction of the National Constitution,
and, as such, subject to be set aside by another voice from the same
quarter. It was, moreover, a Congressional construction adopted
during the administration of Washington, whose personal character
must have influenced opinion largely; and it prevailed in the House
of Representatives only after earnest debate by a majority of twelve,
and in the Senate only by the casting vote of the Vice-President, John
Adams, who, from position as well as principle, was not inclined to
shear the President of any prerogative. Once adopted, and no strong
necessity for a change occurring, it was allowed to go unaltered, but
not unquestioned. Jurists like Kent and Story, statesmen like Webster,
Clay, Calhoun, and Benton, recorded themselves adversely, and it was
twice reversed by vote of the Senate. This was in 1835 and again in
1836, when a bill passed the Senate, introduced by Mr. Calhoun and
sustained by the ablest statesmen of the time, practically denying the
power of the President.[204] The Tenure-of-Office Act was heralded in
1863 by a statute making the Comptroller of the Currency removable “by
and with the advice and consent of the Senate,”[205]--thus, in this
individual case, asserting for the Senate a check on the President;
and then in 1866, by a more important measure, being the provision
in the Army Appropriation Act,[206] that “no officer in the military
or naval service shall in time of peace be dismissed from service,
except upon and in pursuance of the sentence of a court-martial,”--thus
putting another check on the President. Finally, this Congressional
construction, born of a casting vote, and questioned ever since, has
been overruled by another Congressional construction, twice adopted
in both Houses, first by large majorities on the original passage of
the Tenure-of-Office Act, and then by a vote of two thirds on the
final passage of the same Act over the veto of the President,--and
then again adopted by more than two thirds of the Senate, when the
latter condemned the removal of Mr. Stanton: and all this in the light
of experience, after ample debate, and with all the consequences
before them. Such a Congressional construction must have a controlling
influence, and the fact that it reversed the practice of eighty years
and overcame the disposition to stand on the ancient ways would seem to
increase rather than diminish its weight.
Now mark the consequences. Originally, in 1789, there was a
Congressional construction which in effect made the National
Constitution read,--
“The President _shall have_ the power of removal.”
For the next eighty years all removals were made under this
construction. The Tenure-of-Office Act was a new Congressional
construction, overruling the first, and entitled to equal, if not
superior weight. By virtue of this Congressional construction the
National Constitution now reads,--
“The President _shall not have_ the power of removal.”
It follows, then, that in removing Mr. Stanton the President violated
the National Constitution as now construed.
The dilemma is this: If the President can remove Mr. Stanton during
the session of the Senate, without any power by statute, it is only by
virtue of a prerogative vested in him by the National Constitution,
which must necessarily override the Tenure-of-Office Act, as an
unconstitutional effort to abridge it. If, on the other hand, this Act
is constitutional, the prerogative of removal is not in the President,
and he violated the National Constitution when he assumed to exercise
it.
The Tenure-of-Office Act cannot be treated otherwise than as
constitutional,--certainly not in the Senate, where some among the
apologists of the President voted for it. Therefore the prerogative
of removal is not in the President. The long practice which grew up
under a mere reading of the National Constitution has been declared
erroneous. To this extent the National Constitution has been amended,
and it is as absurd to plead the practice under the first reading, in
order to justify an offence under the second, as to plead the existence
of Slavery before the Constitutional Amendment, in order to justify
this monstrosity now.
Thus must we conclude that the offender has violated not only the
Tenure-of-Office Act, but also the National Constitution; that, even
assuming Mr. Stanton unprotected by the statute, the case is not ended;
that this statute, if construed so as to exclude him, cannot be
rejected as a Congressional construction of the National Constitution;
and that, under this Congressional construction, which in value is
second only to a Constitutional Amendment, the prerogative of removal
without the consent of the Senate does not belong to the President.
Of course the power of suspension under the National Constitution,
which is only an incident of the larger pretension, must fall also.
Therefore, in the defiant removal of Mr. Stanton, and also in the
pretended suspension under the National Constitution with which the
transaction began, the President violated the Constitution, and was
guilty of an impeachable offence.
And so, too, we must conclude, that, in the substitution of Lorenzo
Thomas as Secretary of War _ad interim_, the offender violated not only
the Acts of Congress for the supply of vacancies, but also the National
Constitution. Knowing that he could not obtain possession of the office
with the consent of the Senate, he sought to accomplish this purpose
without that consent. Thus, under color of a statute, he practically
set the National Constitution at defiance. Mark here the inconsistency.
He violates the Tenure-of-Office Act, alleging that it is against the
National Constitution, whose champion he professes to be, and then
takes advantage of the Acts of Congress for the supply of vacancies to
set aside this Constitution in one of its most important requirements;
for all which he is justly charged with an impeachable offence.
All this seems clear. Any other conclusion gives to the President
the power under the National Constitution to vacate all national
offices, and leaves the Republic the wretched victim of tyranny, with
a ruler who is not even a constitutional monarch, but a king above
all laws. It was solemnly alleged in the Charge against Charles the
First of England, that, “being admitted King of England, and therein
trusted with a limited power _to govern by and according to the laws
of the land, and_ NOT OTHERWISE,” he nevertheless undertook “_to rule
according to his will_, and to overthrow the rights and liberties of
the people.”[207] These very words now declare the crime of Andrew
Johnson.