Carl Russell Fish

“ Never before had a strong, determined president faced two houses of Congress opposed to him in so momentous a crisis; and for the first time the question of their respective constitutional powers over the patronage became one of widespread interest. In order to make the succeeding events intelligible, it is necessary to discuss briefly the constitutional provisions on this subject, and the questions that were left open. ”

“ The bill, which became the Tenure-of-Office Act of 1867 as reported by Mr. Edmunds from this committee, was designed emphatically to assert the share of the Senate in the removing power. The first clause provided that all officers except members of the cabinet, duly appointed with the advice and consent of the Senate, should be entitled to hold their offices until a successor had in like manner been appointed. The second contained a provision that, for causes which should seem to him to be sufficient, the president might suspend any officer and appoint a temporary successor ”

“ On March 7 a long list of nominations was sent to the Senate, among which was one that might have precipitated the crisis if either side had so desired. A certain man was nominated in place of another “to be removed”; the name was referred to a committee, but was withdrawn by the president before a report had been made. Soon after a man was nominated in the place of another “to be removed for inefficiency,” and the Senate evinced its satisfaction with the cause expressed by confirming the nomination. ”

“ The debate as a whole is disappointing, because so little desire was shown to improve the opportunity presented to accomplish a real reform. Few senators seemed to sympathize with Mr. Howe's statement that he found no special fault with the doctrine, “which,” he added, “I believe has been preached only for thirty or forty years, that to the victor belong the spoils; but the victory which entitles a man or a party to the spoils is a victory which is achieved by the assent of the American people; it is not a victory which is attained by desertion.” ”

“ The same champions led the discussion of the second and third clauses of the bill in a debate which was more animated and less hackneyed. Johnson defended the existing practice, and showed the inconvenience that would arise if the president could fill only vacancies “occurring,” and not all those “existing,” during the recess; and Hendricks illustrated this point by showing that the bill establishing the Freedmen's Bureau was passed early enough to prevent the vacancies which it created from occurring in the recess of the Senate, but too late to be filled before the Senate adjourned. ”

“ He shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. ”

“ Howe compared the relations of the heads of departments and the president to those between the king and the ministers in England. The more moderate Republicans, voting with the Democrats, defeated the proposition in the Senate. In the House it was again put forward, and was more ably supported; the report of Mr. Jenckes, setting forth the patronage which the various secretaries dispensed, was used with much effect; and this, combined with the desire to protect Stanton in his place at the head of the war department, secured the passage of the amendment, though by a narrow majority. ”

“ There was, however, no reason why the president should not at once reappoint him, for, when his commission expired, a vacancy happened “to exist.” There was no easily assignable legal reason, therefore, why the president might not neglect to send in the name at all, and with a little trouble completely obviate the necessity of consulting the Senate. This extreme possibility was a theoretical rather than a practical danger, for not even Johnson showed an inclination to push his power to such an extreme ”

“ The president intended then to use the patronage in his struggle with Congress, and he found it an apt and powerful instrument. Fear of removal might be counted on to keep some Republicans loyal to their official chief, while the Democrats, who constituted the bulk of his supporters, would be especially pleased to get back to the pastures from which they had been driven five years previous. Moreover, no president except Lincoln had had such numerous rewards to distribute. ”

“ It does not fall within the purpose of this work to follow the progress of that trial. The chief point of dispute rested on the interpretation of that ambiguous clause which was the result of the compromise between the Senate and the House on the question whether the provisions of the bill should or should not apply to cabinet officers; and the defence held that Stanton had not been appointed by Johnson, that the latter was serving a term of his own, not a remnant of the term of Lincoln, and that consequently the removal was not in violation of the law. ”

“ If “occur” were taken, the provision obviously referred merely to cases in which the vacancy was one newly arising during the recess for which the appointment was to be made. As an actual fact, the official practice had been to take the other interpretation, and this had the support of a number of attorneys-general. [13]
The deductions from the “happen to exist” reading were far-reaching. If the president issued a commission to a man for a certain post, the appointee would under any circumstances be secure therein until the end of the next session of Congress ”

“ It would have been somewhat difficult to explain the precise nature of this sacrifice, but the idea that an exceptional occasion was to be used for permanent gain was a common one in the Republican press. [20]
It was Senator Sumner, in fact, who was the first to admit the real cause of the proposed act. “At last,” said he, “the country is opening its eyes to the actual condition of things. ”