The
capitulation of General Lees army occurred on the 9th of April 1865. That
of General Johnston followed soon after. The death of President Lincoln occurred on the 15th
day of April, too soon after these conclusive events for the development of any
Presidential policy. The Vice-President took the oath of office as President at this
interesting juncture, when he had only to wait for the surrender of the last rebel forces
in the southwestwhich soon followedto know that every sword drawn in
opposition to the Union had been sheathed. The terms of the capitulation of General Lee
and of his associates embraced merely the personnel of their respective armies,
leaving to be adjusted with the Union the relations which the revolted States and the
great mass of their people should thenceforward occupy. The question embraced that large
class which, lately slaves and chattels, had "emerged into the human character."
Two policies were presented for the
consideration of President Johnson. One of them, and obviously the correct one, was the
convocation of Congress, as the duty of complete adjustment was wholly legislativefollowing,
in that respect, the war power which is bestowed on Congress. The other policy was to
adopt the English precedents, which devolve the duty of such adjustments on the
Executivethe war power in England being wholly Executive to and including the
settlement of the terms of peace. President Johnson chose the latter, and thus commenced
his usurpations of authority
In defense of his measuresin which,
affecting to represent the Sovereignty of the United States, he gave Governors and
governments to States lately in revoltit is claimed that they were only temporary in
their character, and that President Lincoln had set the example. But the action of
President Lincoln with respect to Tennessee occurred in the midst of hostilities, when
unusual powers appertain to the Commander-in-chief, embracing every thing necessary for
success or safety; and the Southern States did not view the action of President Johnson as
of a temporary character; on the contrary, it had the appearance of being, and it was
treated as being, of a permanent character.
What were the relations of the Southern
States to the Union at this juncture? "It is an established principle of
international law." Said Mr. Calhoun, "that whenever a country is subdued, even
in part, its sovereignty is for the time suspended, and that of the conquering
substituted in its place." This was asserted in behalf of the United States with
respect to Mexico, but on the question where the power to exercise the substituted
sovereignty resided, he observed: "I readily concede to the President, as
Commander-in-chief, many and great powers, but they are such as arise out of exigencies
immediately connected with the operations of the army, and its success or safety
but
when he undertakes to exercise power, on his own authority, over subdued territories
unconnected with the operations of the army, he exercises, in my opinion, a power not
belonging to him. Congress may by law authorize him to levy contributions or to
establish temporary governments in such territory; but it is one thing to exercise it
on his own authority, and another to exercise it under the authority of law. The one
places him under the control of law, while the other places him above its control."
That this doctrine applies to the States
which undertook to secede from the Union, and for this purpose to take upon themselves a
new and different character from that they previously had, is obvious from a single test.
Were the rebel States during hostilities, when their whole energies were concentrated into
a public force and arrayed against the United States, entitled to be represented on the
floor of Congress? No one will allege that they were. If they could not take part in
Congress in determining how we should conduct the war against them, it follows that they
can not take the same part in adjusting the terms of peace. These terms still remain to be
arranged. This arrangement must be made upon the rule of international law, that, as one
of the results of victory, the sovereignty of the Untied States immediately prevails over
a conquered people. Any other idea would enable the Southern States, through means of
representation in Congress or in local Legislatures, to obstruct such arrangements as are
necessary to the safety of the Union. No other alternative would in that case remain but
the further and interminable persecution of the war.
The error of the President in assuming a
wholly different state of thingssuch, for instance, as that the revolted States were
still as States in the Union, their rights unimpaired by the war they waged with terrible
energy, and in further assuming that his was the authority which could adjust the
difficultiesis still operating greatly to the embarrassment of the whole country,
which doubtless would have been in as harmonious relations as the circumstances allowed
had Congress been convened. The power to assemble "both Houses or either of
them
on extraordinary occasions" is expressly conferred in the 3d ¶ of the
second Article, and it is clear that the Presidents omission to act under this
authority was a manifest neglect of the public interest. The desire on the one side to
escape the perils of treasonfor the army only had been relievedand the feeling
of magnanimity which then extensively prevailed in the North would have found some common
ground on which restoration might have been safely based. The President undertook,
however, to settle the questionthe gravest ever presented for decisionand to
admit the Southern States into the Union through the bars which he had thrown down,
without consulting that power under our Government which alone has jurisdiction of the
questionthe legislative power.
The war had created a national debt and a
confederate debt, one was to be made operative over the whole Union, the other inoperative
everywhere. It had left maimed and disabled soldiers and families on both sides; those of
the nation were to be rewarded with pensions, and those of the rebels unprotected by such
rewards; it had changed the relations of master and slave so as to require new
regulations; and it is perfectly idle to suppose that these and other important questions,
and the one which underlies them all, upon whom the suffrage shall hereafter devolve,
could be arranged without the intervention of Congress.
It was a grave failure of duty to omit
the convocation of Congress, inasmuch as the regular session was not to commence until
nearly eight months after General Lees capitulation, during which time the ship of
state could go on only under very great disadvantages. Was the idea then entertained that
Congress was a body "hanging on the verge of the Government," or was the motive
for not convening them founded on objects of personal ambition? The same fundamental error
of policy which assumed to act independently of Congress and in defiance of Congress, has
been persistently followed by the President as each successive step has been taken by that
body in prescribing the terms of peace. The country has been kept apart and in difficulty
through this obstruction, until at last a direct assault has been made by the Executive
upon the Tenure-of-Office Act, and consequently upon the power of Congress.
This Act undertook to protect the
Secretary of War against removal. Such was one of its manifest objects, as the President
well knew when he suspended Mr. Stanton under its provision, and the Senate, also,
under its provisions, had restored Mr. Stanton. It is a mere quibble to say that the
immovability of Mr. Stanton was not only not intended but was excepted from the operation
of the law. The President himself having settled this point by first suspending Mr.
Stantonas this mode of proceeding had no other authority than the Tenure-of-Office
Actis estopped from now claiming that the same Act gave him the power of removal.
We have undertaken to meet the
Presidents additional ground, that this Act is unconstitutional, by arguments
founded on the specific powers conferred on Congress, wholly at variance with the implied
power of removal clamed for the President. Subsequent investigation enables us to present
the highest authority for the opinions we have thus advance. Mr. Clay, Mr. Webster (the
latter, Vol. 4 of his works, p.179), Mr. Calhoun, and Mr. Clayton, in the debates in 1835
and 1846, agreed in opinion that it is competent for Congress to require, as to all
officers, excepting judicial, appointed "by and with the advice and consent of the
Senate," that the power of removal shall be exercised only in like manner.
It was not alone in debate that Mr.
Calhoun thus committed himself, but in his work on the Constitution of the United States,
regarded in the light of a testamentary contribution from his mind, at pages 220, 344, and
369, the doctrine is solemnly asserted that it is wholly in the power of Congress thus to
fix the tenure of offices except of the judicial; that the concession made to the
President by the Congress of 1789 is unconstitutional; and that it is necessary to the
safety of the Union to prevent the exercise of the power of removal by him, without
"the advice and consent of the Senate."
That he alone is not the safe depository
of this power appears from the fact that he persists in retaining in office all those
persons connected with the Internal Revenue Department whose frequent abuses and gross
neglect of the public service are the subject of just complaint by those who are
immediately responsible to the Secretary of the Treasury.