It is impossible not to confess in advance that both have been already practically settled. The statute was passed over the veto of the President by two thirds of both Houses, who thus solemnly united in declaring its constitutionality. Then came the suspension of Mr. Stanton, and his restoration to office by a triumphant vote of the Senate, being no less than thirty-five to six,—thus establishing not only the constitutionality of the statute, but also its protecting application to Mr. Stanton. And then came the resolution of the Senate, adopted, after protracted debate, on the 21st February, by a vote of twenty-eight to six, declaring, that, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim; thus for the third time affirming the constitutionality of the statute, and for the second time its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate, and fixing them beyond recall. “Thrice is he armed that hath his quarrel just”; but the Tenure-of-Office Act is armed thrice, by the votes of the Senate. The apologists of the President seem to say of these solemn votes, “Thrice the brinded cat hath mewed”; but such a threefold record cannot be treated with levity.
The question of the constitutionality of this statute complicates itself with the power of removal under the National Constitution; but I shall not consider the latter question at this stage. It will naturally present itself when we consider the power of removal under the National Constitution, which has been claimed by the President. For the present I assume the constitutionality of the statute.
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.