Year: 1868

freSlOenCS, ana acQuleSceU in DV all OF the
Congresses, from 1889 until the 81 of March,
1867, when the Tenure of Office act was
passed. The first section of this act reads
as follows:-"That every person holding
any civil office, to which he has been ap-
pointed by and with the advice and consent
of the Senate, and every person who shall
hereafter be appointed to any such Office.
and shall become duly qualified to act
therein, is and shall be entitled to hold such
office until successor shall have been in a
like manner appointed and duly qualified.
except as herein otherwise provided"
Tnen comes what is ''otherwise provided" )"
provided that the Secretaries of State, of
the Treasury, of War, of the Navy and of
the Interior, the Postmaster General and
the Attorney General shall hold their
offices respectively for and during the
term of the President by whom they may
have been appointed, and tor one month
thereafter, subject to removal by and with
the advice and consent of the Senate" The
controversy in this case grows out of the
construction of this section. How does it
affect the act of 1882 and does it change
the tenure of office of the Secretary for the
Department of War as established by that
act? To that inquiry propose to address
myself. shall not deny the constitutional
validity of the act of March 2, 1s67-that
question is not necessarily in this case. The
first question presented Is, is Mr.. Stanton's
case within the provisions of the Tenure of
Office act of March 2, 1867? Certainly it is
not within the body of the first section.
The tenure which that provides for is not
the tenure of "any". Secretary. "All" Sec
retaries whose tenure is regulated by this
law at all, are to go out of office at the end
of the term of the President by whom they
shall be appointed, and one month there
after, unless sooner removed by the Presi-
dent, by and with the advice and consent OF
the Senate, while all other civil officers
are to hold until a successor shall be ap-
pointed and duly qualified. The office OF
Secretary has attached to it one tenure,
other civil officers another and different
tenure, and no one who holds the Office OF
Secretary can-by force of this law
hold it by any other tenure than the
one which the law specially assigns to
that office. The plain intent of the pro.
viso to the first section is to prescribe ten
ure tor the office of Secretary different from
the tenure fixed for other civil officers


This is known to have been done on ac-
count of the marked difference between
the heads of departments and all other Off
GERS, which made it desirable and necessary
for the public service that the heads of de-
partments should go out of office with the
President by whom they were appointed


1t would, indeed, be strange result of the
law If those Secretaries appointed by Mr.
Lincoln should hold by the tenure fixed by
the act for ordinary civil officers, while al


the other Secretaries should hold by diff
ferent tenure. That those appointed BY
the present and all future Presidents should
hold only during the term of the President
by whom they may have been appointed


while those not appointed by him should
hold indefinitely, and this under a law
which undertakes to define the tenure Of


all the Secretaries who are to hold their of.
lou 81.


conclusion. My opinion is, that if Mr.
Stanton's tenure of Office is prescribed by
this law at all, it is prescribed to him as
Secretary of War under and by force
of the proviso to the first sec
tion, and if his case is not included in
that proviso it is not included in the law al
all 1t is clear to my mind that the pro-
viso does not include and was not intended
to include Mr. Stanton's case. 1t is not pos


sible to apply to his case the language o.


the proviso unless we suppose it to have
been intended to legislate him out OF Office
"a conclusion 1 consider wholly inadmis


sible. He was appointed by President Lin
coin during his first term of Office. He can
not hereafter go out of office at the end O


the term of the President by whom he wa:
appointed. That term was ended before
fore, cannot have been intended to make {
rule for his case, and it is shown that it was
not intended. This was plainly declared il
debate by the Conference committee. bott
in the Senate and in the House of Repre-


sentatives, when the proviso was introduced
and its effect explained. The meaning an(
effect of the proviso were then explained
and understood to be that the only tenure
p of the Secretaries provided for by this Law
was tenure to end with the term ofservic,
of the President by whom they were ap


pointed, and as this new tenure coul(
not include Mr.. Stanton's case,
was here explicitly declared that it die
not include it. When this subjec
was under consideration in the House o
Representatives, on the report of the Con


ference committee on the diSagreeing vote
of the two houses, Mr.. Schenck, of Ohio
chairman of the Conference committee, OF
the part of the House, said 2: "It will be re
membered that by the bill as it passed TIL


Senate it was provided that the concurrenc


of the Senate should be required in all re
movals from Office, except IN the case of tn


heads of departments. The House amended
the bill of the Senate so as to extend thi
requirement to the heads of department
as well as to their officers. The committe


of Conference have agreed that the Senat
shall accept the amendments of the House
But iRdsn,uch as this trould compel the Presi
dentto Keep around hln heads of departments ur
til the end Of his term acto 1oould hold ouer to


further term q compromise aods made By lohic
a further amendment toas added TO this porto


ofthe bill so that the term Of office of the head
of departments shall expire ,oith the term of III
President ,uho appointed them, allowing thes
heads one month longer" When the bill
came to the Senate and was considered o.


the disagreeing vote of the two houses, MI
Doolittle, of Wisconsin, charged that al
though the purpose of the measure was i


his opinion, to force the President agains
L: % akns, fhn o,-s1
pointed by Mr.. Lincoln, yet that tn
phraseology was such that the bill
if passed would not accomplish that object
Mr.. Sherman, of Ohio, who was a mem
Der of the Conference committee and as
sisted to frame the proviso, said: II do nc
understand the logic of the Senator fror


Wisconsin. He first attributes purpos
to the committee of Conference, which


say is not true. l say that the Senate hav
not legislated with view to any person G
any President, and therefore he commence
by asserting what is not true. We do nc
legislate in order to keep in the Secretar


of War, the Secretary OF the Navy or til


Secretary of State" Then a cOnversatio


arose between the Senator iron Ohio an


another Senator, and the Senator from Ohi
continued thus: That the Senate had n
such purpose is shown by its vote twice t


make this exception. That this provisio


does not apply to the present case is show


by the fact that its language is so frame


as not to apply to the present Presiden


The Senator shows that himself and argue


truly that it would not prevent the presel


President from removing the Secretary


War, the Secretary of the Navy and tn


Secretary of State, and if l supposed ths


either of these gentlemen was so wantin


in manhood and in honor as to hold ii


place after the politest intimation by th


President of the United States that his sci


vices were no longer needed, certainly,


Senator, would consent to his removal


any time, and SO would we all" Di


any one here doubt the correctnei


of Mr.. Sherman's Interpretation of til


act when he declared that it ''aoould not pr,


uent the present President from removing Il


Secretary of War, the Secretary of the Na1


and the Secretary of State ?" Was there all
dissent from his position? Was there M