746 



UNITED STATES. 



gust 5th, Mr. Stanton stated that he had been con- 

 strained to continue in the office, even before he was 

 requested to resign, by considerations of a high pub- 

 lic character. In this note of August 12th, 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 cer- 

 tainly cannot refer to the law which creates the War 

 Department, for that expressly confers upon the Pres- 

 ident 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 Con- 

 gress 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 

 taste. There was nothing compulsory in the nature 

 of legal obligation. Nor does he put bis action upon 

 that imperative ground. He says he acts under a 

 " sense of public duty," not of legal obligation, com- 

 pelling 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, com- 

 pelled by this sense of public duty to vindicate vio- 

 lated law and to stand as its champion. 



This was not the first occasion in which Mr. Stan- 

 ton, 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 Cabi- 

 net, 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-Gen- 

 eral. 



Every member of my Cabinet advised me that the 

 proposed^law was unconstitutional. All spoke with- 

 out doubt or reservation ; but Mr. Stanton's condem- 

 nation of the law was the most elaborate and emphat- 

 ic. 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 adminis- 

 tration, all concurring to establish the right of remo- 

 val as vested by the Constitution in the President. 

 To all these he added the weight of his own deliber- 

 ate 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 



fravest obligations of law ; for when he is called upon 

 y 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 im- 

 posed by the Constitution itself. 



After all this, I was not prepared for the ground 

 taken by Mr. Stanton in his note of August 12th. I 

 was not prepared to find him compelled, by a new 



and indefinite sense of public duty under " the Con- 

 stitution," 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 viola- 

 tion 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 wit-h the full mastery of the question mani- 

 fested, by Mr. Stanton, and was at the time so fully 

 occupied with the preparation of another veto upon 

 the pending Eeconstruction Act, that I requeste d him 

 to prepare the veto upon this Tenure-of-Office Bill. 

 This he declined to do, on the ground of physical 

 disability to undergo, at the time, the labor of writ- 

 ing, 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 mem- 

 bers 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 gentle- 

 men 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 provi- 

 sions 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 express 

 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 after- 

 ward ratified a change determined upon by Mr. Lin- 

 coln, 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 gov^ 

 ernment, law, and order in the insurrectionary 

 States. Congress was then in recess, and the sud- 

 den overthrow of the rebellion required speedy ac- 

 tion. 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 lead- 

 ing feature of that plan was that it should be carried 

 out by the Executive authority, for, so far as I have 

 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 reconstruc- 

 tion 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 tho 



