Charles Sumner: his complete works, volume 16 (of 20)

by Charles Sumner

ITS APPLICATION TO MR. STANTON.

I come at once to the question of the application of the statute to Mr. Stanton, so as to protect him against removal without the consent of the Senate. And here I doubt if any question would have arisen but for the hasty words of the Senator from Ohio [Mr. Sherman], so often quoted in this proceeding.

Unquestionably the Senator from Ohio, when the report of the Conference Committee of the two Houses was under discussion, stated that the statute did not protect Mr. Stanton in his office; but this was the individual opinion of this eminent Senator, and nothing more. On hearing it, I cried from my seat, “The Senator must speak for himself”; for I held the opposite opinion. It was clear to my mind that the statute was intended to protect Mr. Stanton, and that it did protect him. The Senator from Oregon [Mr. Williams], who was Chairman of the Conference Committee and conducted its deliberations, informs us that there was no suggestion in committee that the statute did not protect all of the President’s Cabinet, including, of course, Mr. Stanton. The debates in the House of Representatives are the same way. Without holding the scales to weigh any such conflicting opinions, I rest on the received rule of law, that they cannot be taken into account in determining the meaning of the statute. And here I quote the judgment of the Supreme Court of the United States, pronounced by Chief Justice Taney:—

“In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both Houses, and the only mode in which that will is spoken is in the Act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.”[199]

It is obvious to all acquainted with a legislative body that the rule thus authoritatively declared is the only one that could be safely applied. The Senate, in construing the present statute, must follow this rule. Therefore I repair to the statute, stopping for a moment to glance at the public history of the times, in order to understand its object.

We have seen how the President, in carrying forward his usurpation in the interest of the Rebellion, trifled with the Senate in regard to appointments, and abused the traditional power of removal, openly threatening good citizens in office that he would “kick them out,” and filling all vacancies, from high to low, with creatures whose first promise was to sustain his barbarous policy. I do not stop to portray this outrage, constituting an impeachable offence, according to the declared opinion of Mr. Madison,[200] one of the strongest advocates of the Presidential power of removal. Congress, instead of adopting the remedy suggested by this father of the Constitution, and expelling the President by process of impeachment, attempted to wrest from him the power he was abusing. For this purpose the Tenure-of-Office Act was passed. It was deemed advisable to include the Cabinet officers within its protection; but, considering the intimate relations between them and the President, a proviso was appended, securing to the latter the right of choosing them in the first instance. Its object was, where the President finds himself, on accession to office, confronted by a hostile Senate, to assure this right of choice, without obliging him to keep the Cabinet of his predecessor; and accordingly it says to him, “Choose your own Cabinet, but expect to abide by your choice, unless you can obtain the consent of the Senate to a change.”

Any other conclusion is flat absurdity. It begins by misconstruing the operative words of the proviso, that the Cabinet officers “shall hold their offices respectively for and during the term of the President by whom they may have been appointed.” On the face there is no ambiguity here. Only by going outside can any be found, and this disappears on a brief inquiry. At the date of the statute Andrew Johnson had been in office nearly two years. Some of his Cabinet were originally appointed by President Lincoln; others had been formally appointed by himself. But all were there equally by his approval and consent. One may do an act himself, or make it his own by ratifying it, when done by another. In law it is equally his act. Andrew Johnson did not originally appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their appointments; so that at the passage of the statute they stood on the same footing as if originally appointed by him. Practically, and in the sense of the statute, they were appointed by him. They were a Cabinet of his own choice, just as much as the Cabinet of his successor, duly appointed, will be of his own choice. If the statute compels the latter, as it clearly does, to abide by his choice, it is unreasonable to suppose that it is not equally obligatory on Andrew Johnson. Otherwise there is special immunity for the President whose misconduct rendered it necessary, and Congress is exhibited as legislating for some future unknown President, and not for Andrew Johnson, already too well known.

Even the Presidential apologists do not question that the members of the Cabinet commissioned by Andrew Johnson are protected by the statute. How grossly unreasonable to suppose that Congress intended to make such a distinction among his Cabinet as to protect those whose support of his usurpation had gained the seats they enjoyed, while it exposed to his caprice a great citizen whose faithful services during the war had won the gratitude of his country, whose continuance in office was regarded as an assurance of public safety, and whose attempted removal has been felt as a national calamity! Clearly, then, it was the intention of the statute to protect the whole Cabinet, whether originally appointed by Andrew Johnson, or originally appointed by his predecessor and continued by him.

I have no hesitation in saying that no other conclusion is possible without violence to the statute. I cannot forget, that, while we are permitted “to open the law upon doubts,” we are solemnly warned “not to open doubts upon the law.”[201] It is Lord Bacon who gives us this rule, whose obvious meaning is, that, where doubts do not exist, they should not be invented. It is only by this forbidden course that any question can be raised. If we look at the statute in its simplicity, its twofold object is apparent,—first, to prohibit removals, and, secondly, to limit certain terms of service. The prohibition to remove plainly applies to all; the limitation of service applies only to members of the Cabinet. I agree with the excellent Senator from Iowa [Mr. Harlan], that this analysis removes all ambiguity. The pretension that any one of the Cabinet was left to the unchecked power of the President is irreconcilable with the concluding words of the proviso, which declare that they shall be “subject to removal by and with the advice and consent of the Senate,”—thus expressly excluding the prerogative of the President.

Let us push this inquiry still further, by looking more particularly at the statute reduced to a skeleton, so that we may see its bones.

1. Every person holding any civil office, by and with the advice and consent of the Senate, is entitled to hold such office until a successor is appointed.

2. If members of the Cabinet, then during the term of the President by whom they have been appointed, and one month thereafter, unless sooner removed by consent of the Senate.

Mr. Stanton obviously falls within the general class, “every person holding any civil office”; and he is entitled to the full benefit of the provision for their benefit.

As obviously he falls within the sub-class, members of the Cabinet.

Here his rights are equally clear. It is in the discussions under this head that the ingenuity of lawyers has found amplest play, mainly turning upon what is meant by “term” in the statute. I glance for a moment at some of these theories.

1. One pretension is, that, the “term” having expired with the life of President Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th May, 1865. As this is a penal statute, this construction makes it ex post facto, and therefore unconstitutional. It also makes Congress enact the absurdity that Mr. Stanton had for two years been holding office illegally; whereas he had been holding under the clearest legal title, which could no more be altered by legislation than black could be made white. A construction rendering the statute at once unconstitutional and absurd must be rejected.

2. The quibble that would exclude Mr. Stanton from the protection of the statute, because he was appointed during the first “term” of President Lincoln, and the statute does not speak of “terms,” is hardly worthy of notice. It leads to the same absurd results as follow from the first supposition, enhanced by increasing the retroactive effect.

3. Assuming that the statute does not terminate Mr. Stanton’s right a month after President Lincoln’s death, it is insisted that it must take effect at the earliest possible moment, and therefore on its passage. From this it follows that Mr. Stanton has been illegally in office since the 2d of March, 1867, and that both he and the President have been guilty of a violation of law, the former in exercising the duties of an office to which he had no right, and the latter for appointing him, or continuing him in office, without consent of the Senate, in violation of the Constitution and the statute in question. This is another absurdity to be rejected.

Assuming, as is easy, that it is President Lincoln’s “term,” we have the better theory, that it did not expire with his life, but continues until the 4th of March, 1869, in which event Mr. Stanton is clearly entitled to hold until a month thereafter. This construction is entirely reasonable, and in harmony with the Constitution, and the legislation under it. I confess that it is one to which I have often inclined.

This brings me back to the construction with which I began, and I find Andrew Johnson the President who appointed Mr. Stanton. To make this simple, it is only necessary to read “chosen” for “appointed” in the statute,—or, if you please, consider the continuance of Mr. Stanton in office, with the concurrence of the President, as a practical appointment, or equivalent thereto. Clearly Mr. Stanton was in office, when the statute passed, from the “choice” of the President. Otherwise he would have been removed. His continuance was like another commission. This carries out the intention of the framers of the statute, violates no sound canon of construction, and is entirely reasonable in every respect. Or, if preferred, we may consider the “term” that of President Lincoln, and then Mr. Stanton would be protected in office until one month after the 4th of March next. But whether the “term” be of Andrew Johnson or President Lincoln, he is equally protected.

Great efforts have been made to show that Mr. Stanton does not come within the special protection of the proviso, without considering the irresistible consequence that he is then within the general protection of the statute, being “a person holding a civil office.” Turn him out of the proviso and he falls into the statute, unless you are as imaginative as one of the apologists, who placed him in a sort of intermediate limbo, like a lost spirit floating in space, as in one of Flaxman’s Illustrations of Dante. But the imagination of this conception cannot make us insensible to its surpassing absurdity. It is utterly unreasonable, and every construction must be rejected which is inconsistent with common sense.