Francis Fessenden.

Life and public services of William Pitt Fessenden, United States senator from Maine 1854-1864; secretary of the Treasury 1864-1865; United States senator from Maine 1865-1869 online

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Online LibraryFrancis FessendenLife and public services of William Pitt Fessenden, United States senator from Maine 1854-1864; secretary of the Treasury 1864-1865; United States senator from Maine 1865-1869 → online text (page 19 of 30)
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by voting to acquit the President I should disappoint the
hopes of those who honestly desired his conviction, and
expose myself to severe animadversion from long tried
and highly valued friends, and the great mass of that party
for the success of which I had earnestly and faithfully
labored. All this was exceedingly painful to contemplate,
for a man in public life does not willingly place himself
in antagonism with his political friends, or hazard the
loss of popular favor. Nevertheless, it did seem to me that



AFTERMATH OF IMPEACHMENT 237

considerations like these were not to be taken into the
account. One thing the people had a right to demand of
me before and above all others, to wit, that in discharging
the great trust they had committed to my hands, I should
shrink from no responsibility which that trust imposed,
and allow no coward fears of personal consequences to
lead me astray from the path of official duty, and I flat-
tered — perhaps deluded — myself with the hope that the
testimony of a hfe including more than fourteen years of
consecutive public service would protect me against the
vile calumnies of those who sought and affected to find
for a course of action by which I could gain nothing and
might lose much, motives criminal or mean. This hope
was founded on a belief in the intelligence and candor
of the American people, who seldom fail eventually to
justify those who serve them faithfully. I am proud and
happy to acknowledge that you, gentlemen, have strength-
ened and confirmed that confidence.

You do not, I am sure, overrate the importance of pre-
serving and supporting judicial independence and judicial
integrity. Permit me to say that legislative independence
is of equal value ; not that independence which defies the
popular will, or disregards public opinions, but that which
prefers a consciousness of integrity to popular applause.
In our country, the inducements to sacrifice the right to
the expedient, especially in party questions, are sufficiently
strong to preclude all reasonable apprehensions of a will-
ful disregard of constituencies. It is easy and pleasant
to float with the current. It may not always be pleasant to
reflect that by so doing a bad precedent has been estab-
lished, or a blow struck, the evil consequences of which
may be felt in all future time.

Especially in questions involving great principles af-
fecting the framework of government itself, it is of the



238 WILLIAM PITT FESSENDEN

last importance that no sacrifice be made to mere tempo-
rary expediency. There are periods in the history of all
governments when great danger arises from this source,
and all wise rulers will carefully guard against such dan-
gers. I regard the present as one of those periods in our
history. But as in the recent conflict of arms, the patri-
otic devotion and energy of our people carried them safely
and triumphantly through, so now, I trust and believe,
their calmness and moderation in the exercise of political
power will finally soften all the asperities and smooth the
troubled waters of civil strife.

Again thanking you, gentlemen, for the compKment
tendered me, and the more for coupling an honor to
myself with your desire to recognize and vindicate an
important principle, and trusting that I may hereafter at
no distant period have the pleasure of meeting you on
some less formal occasion,

I have the honor to be most respectfully yours,

W. P. Fbssendbn,

Impeachment was over, but throughout the month of
June it was still uppermost in the minds of those con-
nected with it. Those who were looking to President
Wade for office disappeared. The bettors paid or received
their money and the losers denounced " the seven recre-
ants." More than ever was Mr. Fessenden abused as a
conservative, though no Republican senator had acted
more straight with his party even while disapproving some
of its extreme measures. It was not until he opposed the
first impeachment schemes that the radicals styled him
conservative. They ascribed to him the motive of obtain-
ing offices for his friends from the President, forgetting
that the President had no patronage left, and was also
checkmated by the Senate. Towards the last of June



SENATOR FESSENDEN'S OPINION 239

things settled down into their old fashion. Sensible peo-
ple began to see the folly of being led by Stevens and
Butler. Those who remained angry were men for whom
nobody cared. Mr. Fessenden said the thought that he had
rendered a service to his country made up for the loss of
popular favor. Singularly enough, he received less marks
of kindness from Portland than from other places, and
was meanly assailed in the leading Republican paper of
his own town. The generous course of the Boston gen-
tlemen was in sharp contrast with this treatment. Even
the RepubKcan State Convention, held at this time, had
not the courage to condemn the attacks upon him and ex-
press its confidence. The most it could do was to remain
silent.

Thirty opinions were filed by the senators, and, in
order that this history may completely show the divergent
views which the senators held upon the question involved,
attention is called to them. Senator Fessenden's is as fol-
lows : —

OPINION OF MK. SENATOR FESSENDEN.
The House of Representatives have, under the Consti-
tution of the United States, presented to the Senate eleven
distinct articles of impeachment for high crimes and mis-
demeanors against the President. Each senator has
solemnly sworn, as required by the Constitution, to " do
impartial justice, according to the Constitution and the
laws," upon the trial. It needs no argument to show that
the President is on trial for the specific ofEenses charged,
and for none other. It would be contrary to every prin-
ciple of justice, to the clearest dictates of right, to try and
condemn any man, however guilty he may be thought,
for an offense not charged, of which no notice has been
given to him, and against which he has had no opportu-



240 WILLIAM PITT FESSENDEN

nity to defend himself. The question then is, as proposed
to every senator, sitting as a judge, and sworn to do im-
partial justice, " Is the President guilty or not guilty of
a high crime or misdemeanor, as charged in all or either
of the articles exhibited against him ? "

The first article of the series substantially charges the
President with haviiig attempted to remove Edwin M.
Stanton from the office of Secretary of War, — which he
rightfully held, — in violation of law and of the Constitu-
tion of the United States. Granting that an illegal and
unconstitutional attempt to remove Mr. Stanton in the
manner alleged in the article, whether successful or not,
is a high misdemeanor in office, the first obvious inquiry
presents itself, whether under the Constitution and the
laws the President had or had not a right to remove that
officer at the time such attempt was made, the Senate be-
ing then in session. To answer this inquiry it is necessary
to examine the several provisions of the Constitution
bearing upon the question, and the laws of Congress
appUcable thereto, together with the practice, if any,
which has prevailed since the formation of the govern-
ment upon the subject of removals from office.

The provisions of the Constitution applicable to the
question are very few. They are as follows : —

" Article n, section 1. The executive power shall be
vested in a President of the United States of America."

" Article II, section 2. He, (the President) . . .
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."

Same section. " The President shall have power to fill



SENATOR FESSENDEN'S OPINION 241

up all vacancies that may happen during the recess of the
Senate, by granting commissions which shall expire at
the end of their next session."

" Article II, section 4. The President, Vice-President,
and all civil officers of the United States shall be removed
from office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors."

The whole question of removals from office came under
the consideration of the first Congress assembled after the
adoption of the Constitution, and was much discussed by
the able men of that day, among whom were several who
took a prominent part in framing that instrument. It was
noticed by them that the only provision which touched in
express terms upon the subject of removals from office
was found in the clause which related to impeachment ;
and it was contended that, consequently, there was no
other mode of removal. This idea, however, found no
favor at that time, and seems never since to be entertained.
It is quite obvious that as such a construction would lead
to a life tenure of office, a supposition at war with the
nature of our government, and must of necessity involve
insuperable difficulties in the conduct of affairs, it could
not be entertained. But it was equally obvious that a
power of removal must be found somewhere, and as it
was not expressly given in the impeachment clause, it
must exist among the implied powers of the Constitution.
It was conceded by all to be in its nature an executive
power ; and while some, and among them Mr. Madison,
contended that it belonged to the President alone, because
he alone was vested with the executive power, and, from
the nature of his obligations to execute the law and to
defend the Constitution, ought to have the control of his
subordinates, others thought that as he could only ap-
point officers " by and with the advice and consent of the



242 WILLIAM PITT FESSENDEN

Senate," the same advice and consent should be required to
authorize their removal. The first of these constructions
finally prevailed, as those who have read the debates of
that period well know. This was understood and avowed
at the time to be a legislative construction of the Consti-
tution, by which the power of removal from office was
recognized as exclusively vested in the President. Whether
right or wrong or wise or unwise, such was the decision,
and several laws were immediately enacted in terms recog-
nizing this construction of the Constitution.

The debate referred to arose upon a bill for establishing
what is known as the Department of State. And in ac-
cordance with the decision of that first Congress, the right
and power of the President to remove the chief officer of
that department was expressly recognized in the second
section, as follows: —

21 P. Fol. iii. "Sec. 2. And be it further enacted, That
there shall be in the said department an inferior officer,"
etc., " who, whenever the said principal officer shall be,
removed from office by the President of the United States,
or in any other case of vacancy, shall, during such
vacancy, have the charge," etc. Act approved July 27,
1789.

The same provision is found in totidem verbis in the
act establishing the Department of War, approved Au-
gust 7, 1789 ; and terms equally definite are found in the
act to establish the Treasury Department, approved Sep-
tember 2, 1789. These several acts have continued in
force to the present day; and although the correctness
of the legislative construction then established has more
than once been questioned by eminent statesmen since
that early period, yet it has been uniformly recognized
in practice ; so long and so uniformly as to give it the
force of constitutional authority. A striking illustration



SENATOR FESSENDEN'S OPINION 243

of this practical construction arose in the administration
of John Adams, who, when the Senate was in session,
removed Mr. Pickering from the office of Secretary of
State without asking the advice and consent of the Senate,
nominating to that body for appointment on the same
day, John Marshall, in the place of Timothy Pickering,
removed. No question seems to have been made at the
time of this exercise of power. The form of all commis-
sions issued to the heads of departments and to other
officers whose tenure was not limited by statute has been
"during the pleasure of the President, for the time being."
And the right to remove has been exercised without
restraint, as well upon officers who were appointed for a
definite term as upon those who held during the pleasure
of the President.

It has been argued that even i£ this right of removal
by the President may be supposed to exist during the
recess of the Senate, it is otherwise when that body is in
session. I am unable to perceive the grounds of this dis-
tinction, or to find any proof that it has been recognized
in practice. The Constitution makes no such distinction,
as it says nothing of removal in either of the clauses
making distinct provisions for appointment in recess and
during the session. Probably this idea had its origin in
the fact that in recess the President could appoint for a
definite period without the advice and consent of the
Senate, while in the other case no appointment could be
made without that advice and consent. It has been uni-
formly held that a vacancy occurring in time of a session
can only be filled during session by and with the advice
and consent of the Senate, and cannot be lawfully filled
during recess. But I am not aware that the President's
power of removal during the session has ever been seri-
ously questioned while I have been a member of the



244 WILLIAM PITT FESSENDEN

Senate. The custom has undoubtedly been to make the
nomination of a successor the first step in a removal, so
that the two acts were substantially one and the same.
But instances have not unfrequently occurred during
session where the President thought it proper to remove
an officer at once, before sending the name of his suc-
cessor to the Senate. And during my time of service,
previous to the passage of the Act of March 2, 1867, 1
never heard his right to do so seriously questioned. The
passage of that act is, indeed, in itself an admission that
such were understood to be the law and the practice.

I will not attempt to discuss the question here whether
the construction of the Constitution thus early adopted is
sound or unsound. Probably it was thought that while
the restraining power of the Senate over appointments
was a sufficient protection against the danger of executive
usurpation from this source, the President's responsibility
for the execution of the laws required a prompt and vigor-
ous check upon his subordinates. Judging from the short
experience we have had under the act of March 2, 1867,
the supervising power of the Senate over removals is
poorly calculated to secure a prompt and vigorous cor-
rection of abuses in office, especially upon the modern
claim that where offices are of a local character the repre-
sentative has a right to designate the officers; under which
claim this branch of executive authority, instead of being
lodged where the Constitution placed it, passes to one of
the legislative branches of the government.

Such as I have described was a legislative construction
of the Constitution on the subject of removals from office
and the practice under it, and such was the statute estab-
lishing the Department of War, distinctly recognizing
the President's power to remove the principal officer of
that department at pleasure, down to the passage of the



SENATOR FESSENDEN'S OPINION 245

act regulating the tenure of certain civil offices, which
became a law March 2, 1867. Although that act did not
receive my vote originally, I did vote to overrule the Pre-
sident's veto, because I was not then, and am not now,
convinced of its unconstitutionality, although I did doubt
its expediency, and feared that it would be productive of
more evil than good. This is not the occasion, however,
to criticise the act itself. The proper inquiry is, whether
the President, in removing, or attempting to remove, Mr.
Stanton from the office of Secretary of War, violated its
provisions ; or, in other words, whether, if the President
had a legal right to remove Mr. Stanton, before the pas-
sage of that act, as I think he clearly had, he was de-
prived of that right by the terms of the act itself. The
answer to this question must depend upon the legal con-
struction of the first section, which reads as follows, viz. :

" Be it enacted, etc., that every person holding any civil
office, to which he has been appointed 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, en-
titled to hold such office until a successor shall have been
in Uke manner appointed and duly qualified, except as
herein 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 for one month thereafter, subject to re-
moval by and with the advice and consent of the Senate."

In considering how far these provisions apply to the
case of Mr. Stanton, the state of existing facts must be
carefully borne in mind.

Mr. Stanton was appointed by President Lincoln during



246 WILLIAM PITT FESSENDEN

his first tenn, which expired on the 4th of March, a. d.
1865. By the terms of his commissioa, he was to hold
"during the pleasure of the President for the time being."
President Lincoln took the oath of office, and commenced
his second term on the same 4th day of March, and ex-
pired on the 15th day of the succeeding April. Mr. John-
son took the oath of office as President on the day of
the death of President Lincoln. Mr. Stanton was not
reappointed Secretary of War by either, but continued
to hold under his original commission, not having been
removed. How, under these circumstances, did the act
of March 2, 1867, afBect him?

A prehminary question as to the character under which
Mr. Johnson administered the office of President is wor-
thy of consideration, and may have a material bearing.

The fifth clause of section 1, article II of the Consti-
tution provides as follows, viz. : In case of the removal of
the President from office, or of his death, resignation, or
inability to discharge the powers and duties of the said
office, the same shall devolve upon the Vice-President."

What shall devolve upon the Vice-President? The
powers and duties of the office simply, or the office itself?
Some light is thrown upon this question by the remainder
of the same clause, making provision for the death, etc.,
of both the President and Vice-President, enabling Con-
gress to provide by law for such a contingency, as to
declare " what officer shall act as president," and that
" such officer shall act accordingly " — a very striking
change of phraseology. The question has, however, in
two previous instances received a practical construction.
In the case of Mr. Tyler, and again in that of Mr. Fill-
more, the Vice-President took the oath as President,
assumed the name and designation, and was recognized
as constitutionally President of the United States, with



SENATOR PESSENDEN'S OPINION 247

the universal assent and consent of the nation. Each was
fully recognized and acknowledged to be President, as
fully and completely, and to all intents, as if elected to
that ofB.ce.

Mr. Johnson then became President. Did he have a
term of office ? Was he merely the tenant or holder of
the term of another, and that other his predecessor, Pre-
sident Lincoln? Did Mr. Lincoln's term continue after
his death, as has been argued ? It is quite manifest that
two persons cannot be said to have one and the same
term of the presidency at the same time. If it was Mr.
Lincoln's term, it was not Mr. Johnson's. If it was Mr.
Johnson's, it was not Mr. Lincoln's. If Mr. Johnson had
no term, when do the secretaries appointed by him go
out of office, under the act of March 2, 1867 ? When
does the one month after " the expiration of the term of
the President by whom they have been appointed" expire?
A President without a term of office would, under our
system, be a singular anomaly, and yet to such a result
does this argument lead. I am unable to give my assent
to such a proposition.

If Mr. Stanton was legally entitled to hold the office
of Secretary of War on the 21st of February, 1868, as
averred in the first article, he must have been so entitled
by virtue of his original appointment by President Lin-
coln, for he had received no other appointment. If the
act of March 2, 1867, terminated his office, he must, to
be legally in office on the 21st of February, 1868, have
been again appointed and confirmed by the Senate. He
must, therefore, be assumed to have held under the com-
mission by the terms of which he held " during the plea-
sure of the President for the time being." After the death
of President Lincoln, then, he held at the pleasure of
President Johnson, by his permission, up to the passage



248 WILLIAM PITT FESSENDEN

of the act of March 2, 1867, and might have been removed
by him at any time. Did that act change hi^ tenure of office
without a new appointment, and transform what was be-
fore a tenure at will into a tenure for a fixed period?
Granting that this could legally be done by an act of
Congress, which may well be questioned, the answer to
this inquiry must depend upon the terms of the act itself.
Let us examine it.

It is obvious to my mind that the intention was to pro-
vide for two classes of officers ; one, the heads of depart-
ments, and the other comprising all other officers,
appointed by and with the advice and consent of the
Senate. The act provides a distinct tenure for each of
these classes ; for the heads of departments a fixed term,
ending in one month after the expiration of the term of
the President by whom they were appointed ; for all
others, an indefinite term, ending when a successor shall
have been appointed and duly qualified. These two pro-
visions are wholly unlike each other. Both are intended
to apply to the present and the future, and to include all
who may come within their scope. Does Mr. Stanton, by
any fair construction, come within either? How can he
be included in the general clause, when the Secretary of
War is expressly excepted from its operation ? The lan-
guage is : " Every person holding any civil office, etc., shall
be entitled to hold such office, . . . except as herein other-
wise provided." Then follows the proviso, in which the
Secretary of War is specifically designated, and by which
another and a different tenure is provided for the Secre-
tary of War. Surely it would be violating every rule of
construction to hold that either an office or an individual
expressly excluded from the operation of a law can be
subject to its provisions.

Again, does Mr. Stanton come within the proviso?



SENATOR FESSENDEN'S OPINION 249

What is the term therein fixed and established for the
Secretary of War ? Specifically, the term of the President
by whom he was appointed, and one month thereafter.
He was appointed by President Lincoln, and the term of
President Lincoln existing at the time of his appointment
expired on the 4th of March, 1865. Can any one doubt
that had a law been in existence on that day similar to
that of March 2, 1867, Mr. Stanton would have gone out
of office in one month thereafter ? The two terms of Mr.
Lincoln were as distinct as if held by different persons.
Had he been then reappointed by Mr. Lincoln, and con-
firmed, and a law similar to that of March 2, 1867, been
then in existence, is it not equally clear that he would
have again gone out of office in one month after the
expiration of Mr. Lincoln's second term ? If so, the only
question would have been whether Mr. Lincoln's term ex-
pired with him, or continued, notwithstanding his death,
until the 4th day of March, 1869, although he could no
longer hold and execute the office, and although his suc-
cessor, elected and qualified according to all the forms
of the Constitution, was, in fact and in law. President of
the United States. How could aU that be, and yet that
successor be held to have no term at all ? To my appre-
hension, such a construction of the law is more and worse
than untenable.

The word " term " as used in the proviso, when con-



Online LibraryFrancis FessendenLife and public services of William Pitt Fessenden, United States senator from Maine 1854-1864; secretary of the Treasury 1864-1865; United States senator from Maine 1865-1869 → online text (page 19 of 30)