This Act was intended to assert
the doctrine of Hamilton, so far as concerns removal, though it provided for suspension,
and in terms repeals all laws which are inconsistent with it. It consequently repeals so
much of the Act of 1789 as amounts to a legislative recognition of such power of removal
as residing in the President alone.
The President supposes that the language
of the above proviso takes the case of the Secretary of War out of the reach of what
precedes it; but it will appear that this is mere subterfuge. The term referred to in it
is the term of four years from March 4, 1865, which has not yet expired. This was his
construction of the Act when he suspended Mr. Stanton under its provision.
Has the Congress power to pass this Act,
or, in other words, is it the true interpretation of the Constitution? The question is of
the highest importance, not alone as one upon which the trial will turn, but in its effect
upon the welfare of the country. To the unbridled use of the power of removal, indulged in
without the restraint of the Senate, is due much of the universal desire for office that
prevails, and the instability and profligacy which attend its gratification.
A power to suspend from office
during a recess of the Senate until the suspension is acted upon by the Senate, the
circumstances to be reported, supplies every necessity and can never be thus abused. The
friends of the Administration must have sincere pleasure in placing the Presidents
defense upon the Constitution itself, as they have charged in every variety of form that
this sacred instrument has been lost sight of by those who have thought it equal to all
the emergencies which has been relied upon for its overthrow.
The Presidential authority over vacancies
is thus stated in the Constitution: "The President shall have power to fill up all
vacancies that may happen during the recess of the Senate by granting commissions
which shall expire at the end of the next session." It is a well-known rule of
construction that the specification of a particular authority excludes a general
authority. If, as the Presidents friends contend, he is armed, as a necessary
ingredient of the general executive power, with authority to make vacancies and fill them
during the sitting of the Senate, or otherwise, at his pleasure, this clause expressing
when and how he may fill particular vacancies is idle. Leaving out of view the Act of
1867, above quoted, it may be affirmed that there was no "vacancy" in the office
of Secretary of War; and if there were, it did not occur during the "recess of the
Senate." Mr. Stanton was in possession of his office during the sitting of the
Senate, and his removal was attempted at that time. The case, therefore, has no connection
with the sixth section of the Tenure-of-Office Act.
It is contended that the proviso in the
Act of March 1867, supposes that the Secretary is thus removable .To this we have two
answersfirst, that the very opposite was intended, as the President well knew and so
decided; and secondly, that it is not in the power of Congress to confer on him alone
this authority. The Constitution in the section immediately preceding the one already
quoted, ¶ 2, art. 2, provides that "the Congress may by law vest the appointment of
such inferior officers as they think proper in the President alone, in the
Courts of law, or in the Heads of Departments." The War Department, being a known and
recognized department in all important Governments, could not have been referred to under
the head of "inferior officers;" and hence the appointment of Secretary of
Waran office not mentioned in the Constitutionis not embraced in this
provision, but belongs to that intended in the next preceding clause, as follows: "he
(the President) shall nominate, and by and with the advice and consent of the Senate shall
appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and
all other officers of the United Stated, whose appointments are not herein otherwise
provided for and which shalt be established by law."
The clauses "the executive power
shall be vested in a President," and that "he shall take care that the laws be
faithfully executed," can not be deemed to override the effect direct and implied of
these special and definite provisions. They limit the power of the President acting singly
to make appointments, or rather "to grant commissions" (for such is the
language) to cases of "vacancies that may happen during the recess of the
Senate," and they also limit the power of Congress to "inferior officers,"
as those, the appointment of which may be vested in the President, etc.
It is clear, therefore, to us that
Hamilton was correct in saying that by the Constitution the consent of the Senate is
"necessary to displace as well as to appoint." If such is the case this consent
can not be dispensed with by act of Congress. It is unnecessary to consider whether or not
the President had power to suspend the Secretary of War under the sixth section of
the Tenure-of-Office Act, as this was not the character of the late proceeding. Was the
President guilty of an impeachable offense in attempting, during the sitting of the
Senate, to remove Mr. Stanton, and put Major-General Thomas as Secretary ad
interim in possession of the War Department? A Secretary ad interim, except in
the contingency of a suspension of the chief officer, is unknown to our laws. The act
creating the Department provided that, in case of vacancy, the chief clerk shall act till
the vacancy is filled. It was an attempt, therefore, to place a wholly irresponsible
person in a position of high trust, which of itself is an impeachable offense, even if the
other is not. The removal also was in open and clear violation of what Congress intended
by the Tenure-of-Office Act. To fix the tenure of office is a legislative power and duty,
and as the Secretary of War is an officer created wholly by Congress, it is competent for
Congress to prevent his removal, except in the manner implied in his
appointment-that is to say, by and with the advice and consent of the Senate.
Such is the act. It was passed in precise conformity with the Constitution, and declares
that its violation shall be deemed a high misdemeanor. The President is brought,
therefore, within its provision, and, when the attending circumstances are considered, the
violation should be treated as willful. At the time of General Grants appointment as
Secretary of War ad interim, Mr. Stanton had been suspended under the sixth
section of the Tenure-of-Office Act, which provided for such suspension in case of
misconduct in office, or for crime, or for incapability, or for legal disqualification.
The suspension for any of these supposed causes was, as the country well knows, a fraud
upon the Act, and he was restored by a vote of the Senate. On the 21st February
the President, instead of proceeding to repeat the offense, notified Mr. Stanton that he
was removed, and he so informed the Senate, and also that he had appointed
Major-General Thomas Secretary ad interim, an appointment under the circumstances
wholly without precedent or authority. The correspondence at the time of several
newspapers in the interests of the President proved, after Major-General Thomass
failure was known, that the latter had proceeded unskillfully and inefficiently, or he
might, they suppose, have obtained possession and secured complete command of the
Department. The frequency and uniformity of this criticism on the conduct of Major-General
Thomas suggest the inference that a coup detat was meditated, and that its
failure caused universal disappointment. If the movement had succeeded to place this
irresponsible officer in possession and control of all the material of war, the whole
power of the administration would doubtless have been employed to hold the place in
defiance of Congress and of the loyal sentiment of the country. To what lengths the
President would have gone, acting through an officer unknown to the laws, it is impossible
to say. His aim is the succession to power. His means a violation of the Constitution. It
is right, therefore to suppose that if he could have wielded the War Department in all its
infinite ramifications, he would have accomplished his objects, if necessary, by force.
In lieu of this it is more probable he
will find that if justice is slow in her steps he is at least firm in her grasp and
certain to inflict punishment for such a grave transgression. Even if the President had
the power of removal he had not the power to appoint Major-General Thomas as Secretary ad
interim, as he could do that only in the contingency of the suspension of Mr.
Stanton. His right to appoint another in the place of Mr. Stanton he could exercise only
by and with the advice and consent of the Senate, and it would take effect only after such
consent. Much sympathy for the President has been claimed, on the ground that the
Secretary of War is a member of his Cabinet and should be in unison with him. The
Presidents power over the Heads of Departments is thus defined in ¶ 2 of art. 2:
"He may require the opinion in writing of the principal officers in each of
the Executive Departments upon any subject relating to the duties of their respective
offices," showing that the construction of a cabinet, one member to give opinions
as to the duties of the others, was not contemplated. The creation of a cabinet is the
offspring of custom, and in no manner changes the Constitution.
The clause subjecting civil officers to
impeachment for high crimes and misdemeanors has a signification in its relation to the
Presidential office, varying from that which applies to inferior civil offices. The
elevated character of the position gives to the Presidents violations of law, and to
his assaults upon Congress, an influence too important to be overlooked. An attempt to
bring that Department into disgrace, or to weaken its authority by representing it as
hanging on the verge of the Government, and as not constituted according to the
Constitutionuttered on the stump and to large assemblagesamounts to a
prostitution of the Presidential office, and constitutes, along with the act in question,
a clear impeachable offense under the Constitution.
It is by this instrument that the
President will be condemned by the judgment of every loyal citizen, and by the more
impartial judgment of History.
The question whether the Court shall be
constituted with or without the Chief Justice depends on the fact whether or not Mr.
Johnson is President; for it is on the trial of the President alone that he is to preside.
The fifth subdivision of ¶ 1 of art. 2 provides that in case of the death of the
President "the powers and duties of the said office shall devolve on the
Vice-President, " but it does not state that the office shall devolve upon him. He,
however, was sworn in as President. This question has some bearing on the meaning of the
proviso referred to but no mere technicality should be allowed to interfere with the
manifest intention of Congress.