ITS HISTORY AND PURPOSE--THE PRESIDENTS VETO MESSAGE.
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.
Andrew Johnson
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.