The Impeachment of Andrew Johnson
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Harper's Weekly,
March 14, 1868 page 162

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The question whether the power to remove civil officers of the United States, appointed by and with the advice and consent of the Senate, is devolved by the Constitution on the President singly, or on him in conjunction with the Senate, has never received a judicial interpretation. Hamilton, in the 77th No. of the Federalist, declared that "the consent of that body would be necessary to displace as well as to appoint." But the First Congress, in 1789, after very able debate, in effect decided—Vice-President Adams giving the casting vote—that such consent was unnecessary. The words of the Act creating the War Department, "that whenever the Secretary shall be removed from office by the President," contemplated that such officer was thus removable. This is considered a legislative construction of the Constitution. The Tenure-of-Office act, however, passed March 2, 1867, gave it a new and different construction, by providing "that every person holding any civil office, to which he has been appointed by and with the advice and consent of the Senate…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. Provided that the Secretaries…of War, and…shall hold their offices respectively for and during the term of the President by whom they have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate."

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 President’s 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 President’s 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 answers—first, 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 War—an office not mentioned in the Constitution—is 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 Grant’s 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 Thomas’s 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 d’etat 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 President’s 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 President’s 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 Constitution—uttered on the stump and to large assemblages—amounts 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.

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