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

Mr. Howe wished to know why members of the Cabinet should be excepted. "Each one of those officers," he said, "is created by statute, and created not for the personal benefit of the Executive, but created for the benefit of the public service, just as much as a deputy postmaster or an Indian agent." Mr. Edmunds, in reply to Mr. Howe, said that the Committee, "after a great deal of consultation and reflection," had resolved to except members of the Cabinet from the scope of the proposed Act. He gave reasons therefor, which from the foundation of the Government have been considered conclusive—reasons founded on the personal and confidential relations necessarily existing between the President and his Constitutional advisers. The reasons did not satisfy Mr. Howe. He thought "the tenure of Cabinet officers should be under the control of law and independent of any undue exercise of Executive influence." He therefore moved to amend the bill so as to put the members of the Cabinet on the same basis as other civil officers—not removable by the President, except with the advice and consent of the Senate. But the Senate was decidedly averse to so radical a change in the practice of the Government, and Mr. Howe secured the votes of only eight senators to join him in support of his amendment.

Mr. Edmunds moved, subsequently, to amend the bill by the addition of several clauses, one declaring it a high misdemeanor for "any person, contrary to the provisions of this Act, to accept any appointment or employment in office, or to hold or attempt to hold, or exercise, any office or employment." The signing, sealing, countersealing, or issuing of any commission, or letter of authority, contrary to the provisions of the Act, was made punishable by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or by both. Various other provisions of great severity were incorporated, and were adopted after brief debate.

When the bill reached the House, every provision of it was readily agreed to except that which excluded Cabinet officers from its operation. An amendment offered by Mr. Williams of Pennsylvania to strike that out was defeated—ayes 76, noes 78. Later in the day, just as the bill was passing its engrossment, Mr. Farquhar of Indiana, having voted with the majority, moved to reconsider the vote by which the amendment was rejected. The vote was taken the ensuing day, and by the zealous work of the intervening night, the motion to reconsider prevailed—ayes 75, noes 69—and the amendment was at once adopted. The bill was then passed by a party vote—ayes 111, noes 38. When it was returned to the Senate, that body refused, by a decisive vote, to concur in the amendment which placed members of the Cabinet on the same basis with other officers respecting the President's power of removal. Upon a conference between the two branches on this disagreement, a substitute was adopted, declaring that the members of the Cabinet "shall hold their offices, respectively, for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." Both Houses agreed to the bill in this form. Mr. Farquhar's change of mind and his motion to reconsider led to the incorporation in the bill of the provision whose alleged violation by President Johnson was the direct cause of his impeachment by the House of Representatives a year later.

The final action on the measure by the Senate was on the 20th of February, so that the President had the opportunity to endanger its passage by postponing the veto, and it was generally anticipated that he would do so. He communicated it, as in the case of the Reconstruction Bill, on the 2d of March. In reviewing the measure Mr. Johnson said: "In effect it provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law, without the advice and consent of the Senate of the United States. The bill conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States, is a principle which has been not more distinctly declared by judicial authority and judicial commentators, than it has been uniformly practiced upon by the Legislative and Executive Departments of the Government. . . . The question has often been raised in subsequent times of high excitement, and the practice of the Government has nevertheless conformed in all cases to the decision thus made. Having at an early period accepted the Constitution, in regard to the Executive office, in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction, or in any assumed necessity of the times, for changing those opinions. . . . For these reasons, I return the bill to the Senate, in which House it originated, for the further consideration of Congress which the Constitution prescribes. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitutions for the self-government of free states and nations; but I think that experience has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitutions of self-government when once happily established."

The veto message was a very able document. In all official papers of importance the President appeared at his best. He had the inestimable advantage of Mr. Seward's calm temper and of his attractive and forcible statement of the proper argument. Few among the public men of the United States have rivaled Mr. Seward in the dignity, felicity, and vigor which he imparted to an official paper. No one ever surpassed him. In the veto message under consideration his hand was evident in every paragraph; and if it had been President Johnson's good fortune to go down to posterity on this single issue with Congress, he might confidently have anticipated the verdict of history in his favor. The delicate, almost humourous sarcasm in the closing words above quoted from the message, afford a good specimen of Mr. Seward's facility of stating the gravest of organic propositions in a form attractive to the general reader. He wrote as one who felt that in this particular issue with Congress, whatever might be the adverse votes of the Senate and House, time would be sure to vindicate the position of the President. But the message did not arrest the action, indeed scarcely the attention, of Congress, and the bill was promptly, even hurriedly, passed over the veto,—in the Senate by 35 ayes to 11 noes; in the House by 133 ayes to 37 noes.

The bill was not passed, however, without considerable misgiving on the part of many members of both Houses who voted for it. It was an extreme proposition,—a new departure from the long-established usage of the Federal Government, and for that reason, if for no other, personally degrading to the incumbent of the Presidential office. It could only have grown out of the abnormal excitement created by the dissensions between the two great Departments of the Government. The bitterness engendered resembled that which always distinguishes a family quarrel. The measure was resorted to as one of self-defense against the alleged aggressions and the unrestrained power of the Executive Department. But the history of its operation, and of its subsequent modification, which practically amounted to its repeal, is one to which the Republican party cannot recur with any sense of pride or satisfaction. As matter of fact, a Republican Congress, largely composed of the same members who had enacted the law, indirectly confessed two years later that it could not be maintained. Regarded only in the light of expediency at the time, it could readily be demonstrated (as was afterwards admitted by candid men among those who supported it) to be a blunder,—a blunder all the more censurable because the Act was not needed to uphold the Reconstruction policy of Congress, in aid of which it was devised. That policy relied for its vindication upon the judgment and conscience of the loyal people, and it was an impeachment of their good faith to say that either could be affected by the removal of one man, or of many men, from official position under the Federal Government. The Reconstruction policy stood upon a strong and enduring principle,—as strong and enduring as the question of human right,—and was sustained with vigor and enthusiasm by the great party which was responsible for the war measures that had saved the Union. The same sentiment did not attach to the Tenure-of-office Law, which indeed was only the cause of subsequent humiliation to all who had taken part in its enactment.(2)

It was part of the fixed policy of Mr. Lincoln's administration to increase the number of distinctively free States from that section of the public domain which had never been in any way contaminated by the institution of slavery. To this end he was anxious to encourage the settlement of the Territories already organized west of the Missouri river. To provide for the still more rapid creation of North-western States, two additional Territories, Idaho and Montana, were organized from the area which had been included in Dakota. Mr. Lincoln's evident motive was to place beyond the calculation, or even the hope of the disloyal States the possibility of ever again having sufficient political power to compete in the Senate for the mastery of the Republic. He was persuaded that the sectional contest would be fatally pursued as long as the chimerical idea of equality in the Senate should stimulate Southern ambition. He knew, moreover, that the war could not close with victory for the Union, without the proposal of certain changes in the Constitution, and to this end it was desirable that the loyal States should as early and as nearly as possible constitute three-fourths of the entire Union. With this motive, he had towards the close of his first term, somewhat prematurely it was believed by many, stimulated the desire of the settlers of Nevada for a State government. He had faith not only in the justice, but in the popularity, of this policy; for he took pains to issue the proclamation declaring Nevada a State in the Union only a week preceding the Presidential election of 1864, when the existence of his administration was at stake, and when every public measure was scanned with special scrutiny.

Nebraska had been organized as a Territory in the original Douglas bill repealing the Missouri Compromise, in 1854; and Colorado was made a Territory the week preceding Mr. Lincoln's first inauguration. After Nevada, these Territories offered the earliest promise of becoming States. They were both parts of the old Louisiana purchase from France, and had in popular estimation and in the classification of the earlier geographers been included within the borders of the Great American Desert. But settlers has swarmed upon the plains of Nebraska, and the waving fields of grain and the innumerable herds of cattle browsing on her rich pasture-land soon dispelled that misconception, and gave promise of the prosperous development which the State has since attained. Earlier than the farmer or the grazier could reach its soil, Colorado was settled by an intelligent mining population, whose industry has extracted from her mountains more than two hundred millions of the precious metals, contributed in the last quarter of a century to the wealth of the world. Encouraged by the policy of the Administration, and especially by the precedent of Nevada, both Territories sought an enabling Act from Congress in the winter of 1862-63. Neither succeeded at the time; but in the next Congress a bill "to enable the people of Colorado to form a constitution and State government, and for the admission of said State into the Union on an equal footing with the original States," passed both Houses, and was approved by Mr. Lincoln of the 21st of March, 1864. A month later (April 19, 1864) a similar bill for Nebraska was signed by the President.

It appeared that the citizens of each Territory who had been forward in asking an enabling Act from Congress were somewhat in advance of popular sentiment, for when the question of forming a State government was submitted to direct vote in Colorado it was rejected, and the same action was taken in Nebraska. But soon afterward (in the year 1865) the movement for a State government gained strength in both Territories. Through duly organized conventions and the formation and adoption of State constitutions, the people indicated a willingness, if not an active desire, to be admitted to the Union. In Colorado 5,895 votes were cast when the constitution was submitted, and the majority in favor of the new State was but 155. William Gilpin was elected governor, and John Evans and Jerome W. Chaffee were chosen senators of the United States. But when the new senators reached Washington (early in the year 1866) they found that the policy of the National Administration on the subject of new States had changed, and that instead of a friend in the White House, as Mr. Lincoln had steadily proved, they had a determined opponent in the person of Mr. Johnson. Congress with reasonable promptness passed the bill in both Houses for the admission of Colorado, though it was opposed by the more radical class of Republicans because negroes were excluded from the right of suffrage. It is a striking illustration of the rapid change of public sentiment, that in the winter and early spring of 1866 a bill containing that provision could pass a Congress in which the Republicans had more than two-thirds of the membership of each branch, whereas in less than a year negro suffrage was required as the condition of re-admission of the Southern States.

The Colorado bill passed the Senate by a vote of nineteen to thirteen, and the House by eighty-one to fifty-seven. It reached the President on the fifth day of May and was promptly vetoed. Mr. Johnson did not believe that the establishment of a state government was necessary to the welfare of the people of Colorado; "nor was it satisfactorily established that a majority of the citizens of Colorado desire, or are prepared for, an exchange of the Territorial for a State government." He thought that Colorado, instead of increasing, had declined in population. "At an election for a Territorial Legislature in 1861, 10,580 votes were cast; at an election in 1864 only 6,192 votes were cast; while at the election of 1865 only 5,905 votes have been cast." He said, "I regret this apparent decline of population in Colorado, but it is manifest that it is due to emigration which is going out from that Territory into other regions of the United States, which either are in fact, or are believed to be by the citizens of Colorado, richer in mineral wealth and agricultural resources." The President commented upon the injustice of creating from so small a population a State with senatorial strength equal to that of the largest State in the Union. He thought Colorado did not have a population of more than twenty thousand persons "whereas one hundred and twenty-seven thousand are required in other States for a single representative in Congress." The President did not neglect his one constant theme—the unrepresented condition of the Southern States. He insisted that "so long as eleven of the old States remain unrepresented in Congress, no new State should be prematurely and unnecessarily admitted to a participation in the political power which the Federal Government wields." The strong minority which had opposed the Colorado bill gave no hope of overriding the President's veto, which was simply laid on the table and ordered to be printed.