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.