Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

This was a lame and impotent conclusion, and did not commend the support or even the respect of the Senate. Mr. Thurman, a member of the committee that reported it, made haste to announce that he had not approved it. He treated the proposition for suspension as a practical confession that the Tenure-of-office Act "is to be enforced when it will have no practical effect, and is not to be enforced when it would have practical effect." The chief defenders of the proposition to suspend the Act were Mr. Trumbull, Mr. Edmunds, and Mr. Schurz. Mr. Edmunds, pressed by Mr. Grimes to furnish a good reason for suspending the Act, replied that "owing to the peculiar circumstances that have attended the last administration, it is desirable that there should be an immediate and general removal of the office-holders of the country as a rule; and as an agency of that removal, subject to our approval when we meet again in confirmation of their successors, these bad men being put out, we are willing to trust this Executive with that discretion."

Coming from a senator of the United States, this declaration was regarded as extraordinary. The "bad men" to whom Mr. Edmunds referred were the appointees of President Johnson, and every one of them had been confirmed by the Senate of the United States when the Republicans had more than two-thirds of the body. If these appointees were "bad men," why, it was pertinently and forcibly asked by the aggrieved, did not Mr. Edmunds submit proof of that fact to his Republican associates and procure their rejection? He knew, the accused men declared, as much about their character when their names were before the Senate, as he knew now when he sought, behind the protection of his privilege, to brand them with infamy. To permit them to be confirmed in the silence and confidence of an executive session, and then in open Senate, when their places were wanted for others, to describe them as "bad men," seemed to them a procedure not to be explained on the broad principles of statesmanship, or even on the common law of fair dealing.

Mr. Schurz was as anxious as Mr. Edmunds to give the President full power to remove the office-holders. He declared that he "would be the last man to hamper the President in the good work of cleaning out the Augean stable, which he is now about to undertake." He was sure that "the rings must be broken up," that "the thieves must be driven out of the public service." He eulogized President Grant as especially fit for the work. "We have," said he, "a President who is willing to do what we and the country desire him to do." Mr. Schurz expressed at the same time his "heartfelt concern" regarding a rumor that the President was very sensitive touching the proposition reported by the Judiciary Committee, and that "he will make no removals unless the civil-tenure bill be repealed instead of being suspended." Mr. Schurz was sure that "on all the great questions of policy the President and Congress heartily agree," and he condemned "the attempts made to sow the seeds of distrust and discord." It is somewhat amusing as well as instructive to recall that in a little more than two years from that time, when nearly all the appointees of President Johnson had been turned out of office, Mr. Schurz began work again at "the Augean stable," now locating it in the Grant administration, and demanding that it should be cleansed, that "the rings" should be broken up, that "the thieves must be driven out of the public service." He imputed to President Grant's administration even greater corruption than he had charged upon the administration of his predecessor, and from his ever-teeming storehouse lavished abuse with even a more generous hand upon the one that he had upon the other.

The amendment of the Judiciary Committee providing for a suspension of the law until Congress should meet again—a period of about eight months—was so objectionable that it won no substantial support from senators. There was something so baldly and shamelessly partisan in the proposition to suspend the Act just long enough to permit President Grant, without obstruction or encumbrance, to remove the Democrats whom President Johnson had appointed to office, that the common instinct of justice, and even of public decency, revolted. The Tenure- of-office Act was either right or wrong, expedient or inexpedient, Constitutional or unconstitutional, and it was easy to see that men could honestly differ as to its character in these respects. But it was impossible to comprehend how a candid legislator could maintain the Constitutionality and expediency of the Act, and then propose to suspend it for that specific period of General Grant's administration, when, if needed at all, it would be most needed. Within eight months next ensuing the President would probably make more removals and appointments than for the remainder of his term, and it was just for this period that Mr. Trumbull, Mr. Edmunds, and Mr. Schurz urged that the law be made inoperative,—inoperative in order that removals of Democratic office-holders for good cause, and for no cause except that they were Democrats, might in every way be expedited.

It was soon perceived that if the question before the Senate should be reduced to a choice between suspension of the Act or to total repeal, there was a danger that the majority would vote for repeal. To avert that result, Mr. Edmunds asked to withdraw the proposition, and it was accordingly recommitted to the Judiciary Committee on the 23d of March. On the next day Mr. Trumbull reported a substitute for the existing law, and the Senate, after brief discussion, agreed to it by ayes 37, noes 15. The amendment seemed to be ingeniously framed to destroy the original Act and yet appear to maintain it in another form. The senators apparently wished to gratify General Grant and promote their own purposes by rendering the removal of President Johnson's appointees easy, and at the same time avoid the inconsistency involved in the repeal of a law for whose enactment they had so strenuously contended only two years before.

The first modification of the original Act, as embodied in the Senate amendment, was to relieve the President altogether from the necessity of filing charges against an officer whom he desired to suspend. In the second place, all provisions of the original law authorizing the Senate to pass specific judgment on the propriety of the suspension and declaring that if the Senate did not approve the President's act the person suspended should "forthwith" resume his office, were now abandoned. The President was left at liberty to suspend any officer without assigning a cause, and to nominate his successor. If the nomination should be rejected, another might be made, and another, and another, until the Senate should confirm. If the Senate should stubbornly reject all the nominations and the session of Congress end without a confirmation, then, in that remote and highly improbably event, the suspended officer, according to the proposed law, should be restored to his place. The substance of the original Act was gone, but the Senate sought shelter from its record of inconsistency under the small shadow of this distant and hypothetical restoration of the suspended officer.

But the House would not consent that even the small shadow should remain. Representatives well knew that it was not agreeable to President Grant that any authority should be retained by the Senate whereby an obnoxious officer could in any event be kept in place against his wishes, and they were in hearty accord with him. The House had always been jealous of the power of the Senate over appointments to office, and but for the desire to punish President Johnson the representatives would never have consented to the Tenure-of-office Act. They were now determined, if possible, to strip the Senate of its great aggrandizement of power. The feeling of many members of the House was to sustain an amendment offered by General Logan directing that "all civil offices, except those of judges of the United-States courts, filled by appointment before the 4th of March, 1869, shall become vacant on the 30th of June, 1869." This would have been a wholesale removal beyond any scheme attempted since the organization of the Government; but it was not deemed wise even to bring it to a test, and the House contented itself with the rejection of the Senate amendments by a decisive vote.

The subject was then referred to a Conference Committee, consisting of Messrs. Trumbull, Edmunds, and Grimes of the Senate, and Messrs. Benjamin F. Butler, C. C. Washburn, and John A. Bingham of the House. The Bill reported by this committee to both Houses is the present law on the subject.(2) Mr. Trumbull, in making the report, gave this assurance to the Senate: "As the Committee of Conference report the bill, the suspended officer would go back at the end of the session unless somebody else was confirmed in the place." On the same day in the House, in answer to a pressing question from Mr. Hoar of Massachusetts, Mr. Bingham expressed the opinion that "no authority without the consent of the President can get a suspended officer back into the same office again." General Butler, another of the House conferees, said: "I am free to say that I think this amendment upon the question of removal and re-instatement of officers leaves the Tenure-of-office Act as though it had never been passed, so far as the power of the President over the Executive officers is concerned." It was certainly an extraordinary spectacle, without precedent or parallel, that the report of the conference should have one meaning assigned to it in the Senate, and a diametrically opposite meaning assigned to it in the House, and that these antagonistic meanings should be made on the same day, and put forth by the conferees whose names were attached to the report. Such a legislative proceeding cannot be too strongly characterized.

But the popular understanding among Democrats and Republicans alike was that the Tenure-of-office Act had been destroyed, and that Mr. Trumbull's technical construction of the amendment was made merely to cover the retreat of the Senate. By the new enactment, the provisions which had led to the dispute between President Johnson and Congress were practically extirpated; and thus a voluntary confession was recorded by both Senate and House that they had forced an issue with one Executive on an assumed question of right, which they would not attempt with his successor. The members of the present House who in the preceding Congress had voted to impeach the President, and the great mass of the senators who voted to convict him, now voted to blot out the identical clause of the Act under which they held the President to be deserving of removal for even venturing to act upon his own fair construction of its meaning. With all the plausible defenses that can be made for this contradictory course, the fact remains that the authors of the law precipitately fled from its enforcement the moment a President with whom they were in sympathy was installed in office. They thereby admitted the partisan intent that had governed the enactment, just as they admitted the partisan intent that now led to the practical repeal. Casting off all political disguises and personal pretenses, the simple truth remains that the Tenure-of-office Law was enacted lest President Johnson should remove Republican office-holders too rapidly; and it was practically repealed lest President Grant should not remove Democratic office-holders rapidly enough.

While President Grant did not find himself in the least degree embarrassed by the Tenure-of-office Act as amended, he did not surrender his hostility to its existence in any form whatever. In his first annual message (nine months after the legislation just narrated) he earnestly recommended its total repeal. "It could not," said the President, "have been the intention of the framers of the Constitution, when providing that appointments made by the President should receive the consent of the Senate, that the latter should have the power to retain in office persons placed there by Federal appointment against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?"