The Sun.
London, England, 1868-03-20 00:00:00

THE PRESIDENT'S DEFENCE.

The President sent to the Senate the following
message on the 24th February, which was read in
secret session, laid ou the table, and ordered to be
printed. The Senate removed from it the injunc-
tion of secresy :—To the Senate of the United
States :—I have received a copy of a resolution
adopted by the Senate on the 21st instant, as fol-
lows :—" Whereas, the Senate have received and
considered the communication of the President,
stating that he had removed Edwin M. Stanton,
Secretary of War, and had designated the Adju-
tant-General of the Army to act as Secretary of
War, ad interim ; therefore, Resolved, by the Senate
of the United States that under the Constitution
and the laws of the United States the President has
no power to remove the Secretary of War, or de-
signate any other person to perform the duties of
that office, ad interim." This resolution is confined
to the power of the President to remove the Secre-
tary of War and to designate another officer to
perform the duties of the officer, ad interim, and by
its preamble is made expressly applicable to the re-
moval of Mr. Stanton and the designation to act,
ad interim, of the Adjutant-General of the Army.
Without, therefore, attempting to discuss the gene-
ral power of removal as to all the officers, upon
which subject no expression of opinion is contained
in the resolution, I shall confine myself to the
question as thus limited, the power to remove the
Secretary of War. It is declared in the resolution,
"That under the Constitution and laws of the United
States the President has no power to remove the
Secretary of War and designate any other officer to
perform the duties of that office, ad interim." As to
the question of power under the Constitution, I do
not propose at present to enter upon its discussion.
The uniform practice from the beginning of the Go-
Ivernment as established by every President who has
exercised the office, and the decisions of the Supreme
Court of the United States, have settled the ques-
tion in favour of the power of the President to
remove all officers, excepting a class holding ap-
pointments of judicial character. No practice or
any decision has ever excepted a Secretary of War
from this general power of the President to make
removals from office. It is only necessary, then,
that I should refer to the power of the Executive
under the laws of the United States to remove from
office a Secretary of War. The resolution denies
that under these laws this power has any existence.
In other words, it affirms that no such authority is
recognized or given by the statutes of the country.
What, then, are the laws of the United States
which deny the President the power to remove that
officer? I know but two laws which bear upon
this question: —The first in the order of time is the
Act of August 7, 1789, creating the Department
of War, which, after providing for a Secretary as
its principal officer, proceeds as follows :—" Sec-
tion 2d. And be it further enacted, That there
shall be in said Department an inferior officer, to
be appointed by the said principal officer, to be
employed therein as he shall deem proper, and
to be called the Chief Clerk in the Department of
War, and 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 and
custody of all records, books, and .papers, apper-
taining to said Department." It is clear that this
Act, passed by a Congress many of whose members
participated in the formation of the Constitution,
so far from denying the power of the President to
remove the Secretary of War, recognizes it as exist-
ing in the Executive alone, without the concurrence
of the Senate, or of any other Department of the
Government. Furthermore, this Act does not pur-
port to confer power by legislative authority, nor,
in fact, was there any other existing legislation
through which it was bestowed upon the Executive.
The recognition of power by this Act is therefore
complete as a recognition under the Constitution
' itself, for there was no other source or authority
from which it could be derived. The other Act
which refers to this question is that regulating the
tenure of certain civil officers, passed by Congress
on the 2d day of March, 1867. The first section
of that Act is in the following words :—" That
every person holding any civil office to which he
has been appointed by and with the advice and con-
sent of the Senate, and any person who shall here-
after be appointed to-any such office and shall be-
come duly qnalified to act therein, is and shall be
entitled to hold such office until a successor shall
have been in like manner appointed and duly qua-
lified, except asherein otherwise provided ; provided
that the Secretaries of State, of the Treasury, of
War, of the Navy, and of the Interior, the Post-
master-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."
The fourth section of the same Act restricts the time
of office to the limit prescribed by the law creating
them. That part of the first section which precedes
the proviso declares that every person holding a
civil office to which he has been or may be appointed
by and with the advice and consent of the Senate,
shall hold such office until a successor shall have
been in like manner appointed. It purports to take
from the Executive during the fixed time established
for tenure of office the independent power of re-
moval, and to require for such removal the concur-
rent action of the President and Senate. The pro-
viso that follows proceeds to fix the term of 'office
of the seven heads of the departments, whose tenure
never had been defined before, by prescribing that
they " shall hold their office 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 con-
sent of the Senate." 'Thus, as to those enumerated
officers, the proviso takes from the President the
power of removal except with the advice and
consent of the Senate. By its terms, however,
before he can be deprived of power to displace
them, it must appear that he himself has appointed
them. It is only in that case that they have any

tenure of office or any independent right to hold
during the • term of the President and for one
month after the cessation of his official functions.
The proviso, therefore, gives no tenure of office
to any one of those officers who has been appointed
by the President beyond one month after the
accession of his successor. In the case of Mr.
Stanton, the only appointment under which he
held the office of Secretary of War was that con-
ferred upon him by my immediate predecessor, Mr.
Lincoln, with the advice and consent of the Senate.
He has never held from me any appointment as the
head of the War Department. Whatever right he
had to the office was derived from that original ap-
pointment and my own sufferance. The law Ras
not intended to protect such an incumbent of the
War Department by taking from the President the
power to remove him. This, in my judgment, is per-
fectly clear, and the law itself admits of no °tinr just
construction. We find in all that portion of the
first section which precedes the proviso, that as to
civil officers generally the Presidvut is deprived of
the power of removal ; and it is plain that if
there had been no proviso that power would just as
clearly have been taken from him, so far as it applies
to the seven heads of Departments ; but for reasons,
which were no doubt satisfactory to Congress, these
principal officers were specially provided for, and'
as to them the expressed and only requirement is that
the President who has appointed them shall pot,
without the advice and consent of the Senate, re-
move them from office. The consequence is that,
as to my Cabinet, embracing the sama officers de-
signated in the Ist section, the Act takes from me
the power, without the concurrence of the Senate,
to remove any one of them that I have appointed,
but it does not protect such of them as I did not
appoint, nor give to them any tenure of office be-
yondthen, my
op,letasuarte A n examination of this Act,
clause there is awhile in one part of the section
provision is made for officers generally, another
class
of officers designated by
their official titles, who are exempted from the
general terms of the law, and in reference to
whom a clear distinction is made as to the gene-
ral power of removal, limited in the first clause of
the section. This distinction is that as to such
of these enumerated officers as hold office under
the appointment of the President, the power of re-
moval can only be exercised by him, with the con-
sent of the Senate ; while as to those who have net
been appointed by him, there is no like denial of his
power to displace them. It would be a violation Of
the plain meaning of this enactment to place Nr-
Stanton upon the same footing as those heads of
departments who have been appointed by myself.
As to him, this law gives him no tenure of office.
The members of my Cabinet, who have been ap-
pointed by me, are by this act entitled to hold to
one month after the term of my office should cease;
but Mr. Stanton could not, against the wishes of
my successor, hold a moment thereafter. If he
were permitted by that successor to hold for the
first two weeks, would that snccessor have no
power to remove him ? But the power of my suc-
cessor over him could be no greater than my owe.
If my successor would have the power to remove
Mr. Stanton after permitting him to remain a
period of two weeks, because he was not appointed
by him but by his predecessor, I, who have tole-
rated Mr. Stanton more than two years, certainly
have the same right of removing him, and upon the
same ground, namely, that he was not appointed by
me, but by my predecessor. Under this construc-
tion of the Tenure-of-Office Act, I have never
doubted my power to remove Mr. Stanton. Whether
the Act was constitutional or not, it was always rei
opinion that it did not secure him from removal. I
was aware, however, that there were doubts as to
the construction of the law, and from the firstdeerned
it desirable that at the earliest possible moment these
doubts should be settled and the true construction of
the Act fixedby the decision of the Supreme Court of
the United States. My order of suspension in
August last was intended to place the case in such
a position as would make a resort to judicial deci-
sion both necessary and proper. My understand-
ing and wishes, however, under that order of sus-
pension were frustrated, and the late order for Mr.
Stanton's removal was a further step towards the
accomplishment of that purpose. I repeat that nIY
own convictions as to the true construction of the
.
law, and as to the constitutionality, were well settled
and were sustained by every member of my Cabinet'
including Mr. Stanton himself. Upon the question
of the constitutionality each one in turn deliberately
advised me that the Tenure-of-Office Act was °ll-
- Upon the question whether as to
those members who are appointed by my predaees-
sor that Act took from me the power to removo
them, one of those members emphatically stated In
the presence of the others, sitting in Cabinet, that
they did not come within the provision of the Act!
and that it was no protection to them. No eov
dissented from this construction, and 1 understood
them all to acquiesce in its correctness.

(To be continued.)

Prince Napoleon was at Frankfort -00113°
Maine last week, and dined with Baron Roltr an,
French Consul-General. He also visited the theatre, 9-131;
is said to be studying German politics. He was th ere f°-

two days.
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Births. boo
ATHOLE —On the 17th inst., at, Blair Athole, the Clue-

of Athole, of a daughter.. , 000.
CLIALONER—On the 17th inst., the wife of Captain„hiret
Chaloner, R.N., of Laighull, Guisborougb, York
of a son, stillborn. , wife
GROVES —On the 18th inst., at Woodford, Essoc, tue
Win. G. Groves, Esq., of a daughter.

Marriages.
go'
BROWN—SPEYER—On the 18th inst., at St. Georg er
over-square, John Wilson Brown, of 75, Upper .131"-joilli
street, Portman-square, eldest son of the late -Rxr,,,,
Brown, of Wellingborough, to Jane Louisa, oniY "fl-suci•
ter of the' late Mr. J.ll. Speyer, 203, Hampstead-r
DRYsDALE—NEWBY—On the 19th inst.. at the ,133.00
church, South Hackne3-, London, Win. B. Drysdaa-''i, to
of the late William Drysdalo, Kincardine-on-F,er„t„,-I,y,
Susan, youngest daughter of the late Charles 0.-
Cambridge-heath, N.E.
Deaths.
DAviEs—On the 19th inst , at High House, Blackra'As-
Thomas Davies, Esq., of the Scottish Amicable Li'e
surance Society, aged 73. E.rSfal;
FuLLom—On the 17th inst., Fred. J. Fullore,
oy
Department, Woolwich, and late Licut.-Coloue"
Arsenal Volunteer Artillery, aged 51. 3 George
HAIWCASTLE -On the IGth inst., at Sunderland,
Hardcastle, aged 63. Br. utotit
IP
MARSHALL—On the 17th inst., at York-place,
Maria, relict of the late E. Marshall, Esq., aged ?ili),:ta 51'
STEVENS -On the 17th inst ,at Melbury House, --
Stevens, aged 68.
WALSHE —At 18, Queen's-crescent, Glasgow, Stal WO"
Major 11; C. Walsh°, 31. D., late of the 80./9

--- - - n
London : Printed and Published by W1LL1.9.51 —N No li
of No. 112, Strand, Printer, at TUB Sus 0,31ce,
°" g"
Strand, in the Precinct of the Sc voy, in the C

Micldleapx.—Friday, March 20, 180.