Part 88

On the 12th of August Mr. Stanton was notified of his suspension and that General Grant had been authorized to take charge of the Department. In his answer to this notification, of the same date, Mr. Stanton expresses himself as follows:

Under a sense of public duty I am compelled to deny your right under the Constitution and laws of the United States, without the advice and consent of the Senate and without any legal cause, to suspend me from office as Secretary of War or the exercise of any or all functions pertaining to the same, or without such advice and consent to compel me to transfer to any person the records, books, papers, and public property in my custody as Secretary.

But inasmuch as the General Commanding the armies of the United States has been appointed ad interim, and has notified me that he has accepted the appointment, I have no alternative but to submit, under protest, to superior force.

It will not escape attention that in his note of August 5 Mr. Stanton stated that he had been constrained to continue in the office, even before he was requested to resign, by considerations of a high public character. In this note of August 12 a new and different sense of public duty compels him to deny the President's right to suspend him from office without the consent of the Senate. This last is the public duty of resisting an act contrary to law, and he charges the President with violation of the law in ordering his suspension.

Mr. Stanton refers generally to the Constitution and laws of the "United States," and says that a sense of public duty "under" these compels him to deny the right of the President to suspend him from office. As to his sense of duty under the Constitution, that will be considered in the sequel. As to his sense of duty under "the laws of the United States," he certainly can not refer to the law which creates the War Department, for that expressly confers upon the President the unlimited right to remove the head of the Department. The only other law bearing upon the question is the tenure-of-office act, passed by Congress over the Presidential veto March 2, 1867. This is the law which, under a sense of public duty, Mr. Stanton volunteers to defend.

There is no provision in this law which compels any officer coming within its provisions to remain in office. It forbids removals--not resignations. Mr. Stanton was perfectly free to resign at any moment, either upon his own motion or in compliance with a request or an order. It was a matter of choice or of taste. There was nothing compulsory in the nature of legal obligation. Nor does he put his action upon that imperative ground. He says he acts under a "sense of public duty," not of legal obligation, compelling him to hold on and leaving him no choice. The public duty which is upon him arises from the respect which he owes to the Constitution and the laws, violated in his own case. He is therefore compelled by this sense of public duty to vindicate violated law and to stand as its champion.

This was not the first occasion in which Mr. Stanton, in discharge of a public duty, was called upon to consider the provisions of that law. That tenure-of-office law did not pass without notice. Like other acts, it was sent to the President for approval. As is my custom, I submitted its consideration to my Cabinet for their advice upon the question whether I should approve it or not. It was a grave question of constitutional law, in which I would, of course, rely most upon the opinion of the Attorney-General and of Mr. Stanton, who had once been Attorney-General.

Every member of my Cabinet advised me that the proposed law was unconstitutional. All spoke without doubt or reservation, but Mr. Stanton's condemnation of the law was the most elaborate and emphatic. He referred to the constitutional provisions, the debates in Congress, especially to the speech of Mr. Buchanan when a Senator, to the decisions of the Supreme Court, and to the usage from the beginning of the Government through every successive Administration, all concurring to establish the right of removal as vested by the Constitution in the President. To all these he added the weight of his own deliberate judgment, and advised me that it was my duty to defend the power of the President from usurpation and to veto the law.

I do not know when a sense of public duty is more imperative upon a head of Department than upon such an occasion as this. He acts then under the gravest obligations of law, for when he is called upon by the President for advice it is the Constitution which speaks to him. All his other duties are left by the Constitution to be regulated by statute, but this duty was deemed so momentous that it is imposed by the Constitution itself.

After all this I was not prepared for the ground taken by Mr. Stanton in his note of August 12. I was not prepared to find him compelled by a new and indefinite sense of public duty, under "the Constitution," to assume the vindication of a law which, under the solemn obligations of public duty imposed by the Constitution itself, he advised me was a violation of that Constitution. I make great allowance for a change of opinion, but such a change as this hardly falls within the limits of greatest indulgence.

Where our opinions take the shape of advice, and influence the action of others, the utmost stretch of charity will scarcely justify us in repudiating them when they come to be applied to ourselves.

But to proceed with the narrative. I was so much struck with the full mastery of the question manifested by Mr. Stanton, and was at the time so fully occupied with the preparation of another veto upon the pending reconstruction act, that I requested him to prepare the veto upon this tenure-of-office bill. This he declined, on the ground of physical disability to undergo at the time the labor of writing, but stated his readiness to furnish what aid might be required in the preparation of materials for the paper.

At the time this subject was before the Cabinet it seemed to be taken for granted that as to those members of the Cabinet who had been appointed by Mr. Lincoln their tenure of office was not fixed by the provisions of the act. I do not remember that the point was distinctly decided, but I well recollect that it was suggested by one member of the Cabinet who was appointed by Mr. Lincoln, and that no dissent was expressed.

Whether the point was well taken or not did not seem to me of any consequence, for the unanimous expression of opinion against the constitutionality and policy of the act was so decided that I felt no concern, so far as the act had reference to the gentlemen then present, that I would be embarrassed in the future. The bill had not then become a law. The limitation upon the power of removal was not yet imposed, and there was yet time to make any changes. If any one of these gentlemen had then said to me that he would avail himself of the provisions of that bill in case it became a law, I should not have hesitated a moment as to his removal. No pledge was then expressly given or required. But there are circumstances when to give an expressed pledge is not necessary, and when to require it is an imputation of possible bad faith. I felt that if these gentlemen came within the purview of the bill it was as to them a dead letter, and that none of them would ever take refuge under its provisions.

I now pass to another subject. When, on the 15th of April, 1865, the duties of the Presidential office devolved upon me, I found a full Cabinet of seven members, all of them selected by Mr. Lincoln. I made no change. On the contrary, I shortly afterwards ratified a change determined upon by Mr. Lincoln, but not perfected at his death, and admitted his appointee, Mr. Harlan, in the place of Mr. Usher, who was in office at the time.

The great duty of the time was to reestablish government, law, and order in the insurrectionary States. Congress was then in recess, and the sudden overthrow of the rebellion required speedy action. This grave subject had engaged the attention of Mr. Lincoln in the last days of his life, and the plan according to which it was to be managed had been prepared and was ready for adoption. A leading feature of that plan was that it should be carried out by the Executive authority, for, so far as I have been informed, neither Mr. Lincoln nor any member of his Cabinet doubted his authority to act or proposed to call an extra session of Congress to do the work. The first business transacted in Cabinet after I became President was this unfinished business of my predecessor. A plan or scheme of reconstruction was produced which had been prepared for Mr. Lincoln by Mr. Stanton, his Secretary of War. It was approved, and at the earliest moment practicable was applied in the form of a proclamation to the State of North Carolina, and afterwards became the basis of action in turn for the other States.

Upon the examination of Mr. Stanton before the Impeachment Committee he was asked the following question:

Did any one of the Cabinet express a doubt of the power of the executive branch of the Government to reorganize State governments which had been in rebellion without the aid of Congress?

He answered:

None whatever. I had myself entertained no doubt of the authority of the President to take measures for the organization of the rebel States on the plan proposed during the vacation of Congress and agreed in the plan specified in the proclamation in the case of North Carolina.

There is perhaps no act of my Administration for which I have been more denounced than this. It was not originated by me, but I shrink from no responsibility on that account, for the plan approved itself to my own judgment, and I did not hesitate to carry it into execution.

Thus far and upon this vital policy there was perfect accord between the Cabinet and myself, and I saw no necessity for a change. As time passed on there was developed an unfortunate difference of opinion and of policy between Congress and the President upon this same subject and upon the ultimate basis upon which the reconstruction of these States should proceed, especially upon the question of negro suffrage. Upon this point three members of the Cabinet found themselves to be in sympathy with Congress. They remained only long enough to see that the difference of policy could not be reconciled. They felt that they should remain no longer, and a high sense of duty and propriety constrained them to resign their positions. We parted with mutual respect for the sincerity of each other in opposite opinions, and mutual regret that the difference was on points so vital as to require a severance of official relations. This was in the summer of 1866. The subsequent sessions of Congress developed new complications, when the suffrage bill for the District of Columbia and the reconstruction acts of March 2 and March 23, 1867, all passed over the veto. It was in Cabinet consultations upon these bills that a difference of opinion upon the most vital points was developed. Upon these questions there was perfect accord between all the members of the Cabinet and myself, except Mr. Stanton. He stood alone, and the difference of opinion could not be reconciled. That unity of opinion which, upon great questions of public policy or administration, is so essential to the Executive was gone.

I do not claim that a head of Department should have no other opinions than those of the President. He has the same right, in the conscientious discharge of duty, to entertain and express his own opinions as has the President. What I do claim is that the President is the responsible head of the Administration, and when the opinions of a head of Department are irreconcilably opposed to those of the President in grave matters of policy and administration there is but one result which can solve the difficulty, and that is a severance of the official relation. This in the past history of the Government has always been the rule, and it is a wise one, for such differences of opinion among its members must impair the efficiency of any Administration.

I have now referred to the general grounds upon which the withdrawal or Mr. Stanton from my Administration seemed to me to be proper and necessary, but I can not omit to state a special ground, which, if it stood alone, would vindicate my action.

The sanguinary riot which occurred in the city of New Orleans on the 30th of August, 1866, justly aroused public indignation and public inquiry, not only as to those who were engaged in it, but as to those who, more or less remotely, might be held to responsibility for its occurrence. I need not remind the Senate of the effort made to fix that responsibility on the President. The charge was openly made, and again and again reiterated all through the land, that the President was warned in time, but refused to interfere.

By telegrams from the lieutenant-governor and attorney-general of Louisiana, dated the 27th and 28th of August, I was advised that a body of delegates claiming to be a constitutional convention were about to assemble in New Orleans; that the matter was before the grand jury, but that it would be impossible to execute civil process without a riot; and this question was asked:

Is the military to interfere to prevent process of court?

This question was asked at a time when the civil courts were in the full exercise of their authority, and the answer sent by telegraph on the same 28th of August was this: