Tenure of Office Act (March 2, 1867)

Updated: January 03, 2011

Following President Abraham Lincoln's death on April 15, 1865, Vice President Andrew Johnson assumed the presidency. Johnson chose to keep Edwin McMasters Stanton as Secretary of War.

Following President Abraham Lincoln's death on April 15, 1865, Vice President Andrew Johnson assumed the presidency. Johnson chose to keep Edwin McMasters Stanton as Secretary of War. Stanton's relationship with Johnson was contentious. Stanton and Lincoln seemed to respect each other, while Stanton and Johnson apparently grew to despise each other. Stanton sought to punish the South for the Civil War and had a firm desire to extend rights to African Americans. Johnson preferred a much more lenient approach to white Southerners and actively worked to deny African Americans opportunities. Realizing that they needed Stanton as Secretary of War to enact a strict Reconstruction policy, Radical Republicans instituted the Tenure of Office Act on March 2, 1867. This legislation prohibited the President from firing without Congress' permission any government official who required Senate approval. As Secretary of War, Stanton had received Senate approval before assuming the office. Johnson could not fire Stanton without Congressional permission, although Johnson's supporters believed that he could, because Johnson had not appointed Stanton to the position--Lincoln had. Since Stanton had the power to dispatch troops, promote soldiers, and assign officers to various commands, Radical Republicans desired to protect the Secretary of War, as he could enact their Reconstruction policy of punishing the South.

The Tenure of Office Act stated:

An Act regulating the Tenure of certain Civil Offices.

Be it enacted..., 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 entitled to hold such office until a successor shall have been in like 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 removal by and with the advice and consent of the Senate.

SEC. 2. And be it further enacted, That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate...; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for his action in the case, and the name of the person so designated to perform the duties of such office. And if the Senate shall concur in such suspension and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended....

SEC. 3. And be it further enacted, That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office.

SEC. 4. And be it further enacted, That nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law.

SEC. 5. And be it further enacted, That if any person shall, contrary to the provisions of this act, accept any appointment to or employment in any office, or shall hold or exercise or attempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared to be, guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court.

SEC. 6. And be it further enacted, That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed, and are hereby declared to be, high misdemeanors, and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court.

Despite this legislation, Johnson decided to fire Stanton. On August 5, 1867, the president first asked the Secretary of War to resign by sending the following message, "Public considerations of high character constrain me to say that your resignation as Secretary of War will be accepted." Stanton refused, forcing Johnson to suspend Stanton. Johnson replaced Stanton with Ulysses S. Grant until the Congress could meet to formally fire Stanton. Grant quickly resigned, preferring to remain out of the political fray.

On January 3, 1868, the Congress voted thirty-five to sixteen to retain Stanton as Secretary of War. Johnson ignored the Congress' decision, fired Stanton, and replaced him with General Lorenzo Thomas, Adjutant General of the Army, on February 21, 1868. Radical Republicans immediately began impeachment proceedings to remove Johnson from the presidency. Johnson was impeached, the first president ever to receive this punishment, but he retained the presidency by a single vote.

The Tenure of Office Act continued in effect for several additional presidents, including Ulysses S. Grant, Rutherford B. Hayes, James Garfield, Chester Arthur, and Grover Cleveland. The act was finally repealed in 1887.

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"Tenure of Office Act," Ohio Civil War Central, 2017, Ohio Civil War Central. 25 May 2017 <http://www.ohiocivilwarcentral.com/entry.php?rec=225>

APA Style

"Tenure of Office Act." (2017) In Ohio Civil War Central, Retrieved May 25, 2017, from Ohio Civil War Central: http://www.ohiocivilwarcentral.com/entry.php?rec=225

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