The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-05-19

removal,
session, has ever been seriously questioned.
While have been a member of The Senate
the custom has undoubtedly been to make
the nomination OF successor the first step
In the removal, so that the two acts were
substantially one and the same, but in
stances have not unfrequently occurred dur
ing the session where the President thought
it proper TO remove an officer at once before
sending the name OF his successor to the
Senate, and during my term of service, pre-
vious to the act of March 2. 1867, never
found 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. | will not attempt
to discuss the question here whether the CON
struction of the Constitution thus early
adopted is sound OF unsound. Probably it
was thought that while the restraining power
OF the Senate over appointments was a sufii-
cient protection against Executive usuT-
patton from this source, the Presidents re-
sponsibilty for the execution of the laws
required prompt and vigorous check upon
his subordinates. Judging from the short
experience we have had under the act OF
March 2, 1867, the supervisory power of the
senate over removals is poorly calculated to
secure prompt and vigorous correction of
abuses in office, especially upon the modern
claim that when offices are of local char
acter the Representative has right to desie-
nate the officer, under which claim this
branch of the Executive authority, instead
OF being lodged where the Cor stitution
placed it, passes to one of the legislative
branches OF the government
THE TENURE-oF OFFICE ACT.
Such as l have described was the legisla-
tive construction of the Constitution on the
subject of removals from office, and the prac-
tice under it, and such was the statute estab-
fishing .he Department of War, distinctly
recognizing the Presidents power to remove
the principal officer OF that department al
pleasure down to the passage of the act
regulating the tenure of certain civil offices,
which became a law March 2, 1867 AL
though that act did not receive my vote orr
ginally, did vote 10 overule the Presidents
veto, because l was not then, and am not
now, convinced Of its unconstitutionality,
although doubted its expediency and feared
that it would be productive of more evil than
go)d. This is not the occasion, however to
criticse the act ITSELF The proper inquiry is
whether the President, in removing or at
tempting to remove Mr.. Stanton from the
office of Secretary OF War, violated it's pro-
visions; or in other words, whether, if the
President has legal right to remove Mr..
Stanton before the passage of that act, as
think he clearly had, he was deprived of that
right by the terms of the act ITSELF The
answer to this question must depend upon
the legal construction of the first section,
which reads as follows.
Be IL enacted, &C., 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 sue
cessor shall have been in like manner appointed and
duly qualified except as herein otherwise provided.
Proved That the Secretaries of State OF the Treas
ury of War, OF the Navy, and OF the Interior, the
Postmaster General and Attorney General shall hold
their offices, respectively for and during the term OF
the President by whom they may have been appoint
ed and for month thereafter subject to removal
by and with the advice and consent OF the Senate.
In considering how far these provisions ap-
ply to the case OF Mr.. Stanton, the state of
existing facts must be carefully borne in
mind. Mr.. Stanton was appointed by Presi-
dent Lincoln during his first term, which ex-
pired on the 4th of March, A. d. 1865 By
the tenure OF his commission 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 of March, and expired on the
18th day of the succeeding April. Mr.. john
son took the oath of office as President On
the day succeeding the death of President
Lincoln. Mr.. Stanton was not reappointed
Secretary OF War by either, but continued to
hold under his original commission, not hav-
ing been removed. How, under these circum-
stances, did the act of March 2, 1867, affect
him? A preliminary question as to the char
acter under which Mr.. johnson administered
the Office of President is worthy of consider.
alton, and may have material bearing. The
fifth clause of section l, article 2 of the Con-
stitution, provides as follows, viz:
cosa Of +ha rap,oya1 +a orosJa,+ f.,,,, Ia no
or OF his DEATH resignation or inability to discharge
the powers and duties of the said Office, the same
shall devove upon the Vice-President.
What shall devolve upon the Vice-Presi-
dent? The powers and duties simply, or the
office itself? Some light is thrown upon this
making provision - io.- .iN.>1daatb &C. of bofb
President and Vice-President, and inviting Hfht5
Congress to provide by law tor such contin-
gency, and to declare what officer shall then
act as President, and that such officer shall
act accordingly. A very striking change of
phraseoloey. The question has, however, in
two previous instances, received practical
construction. In the case of Mr.. Tyler. and
again in that of Mr.. Fillmore, the Vice Presi-
dent took the oath as President-assumed the
same name and designation, and was recog-
nized as constitutionally President OF the
United States, with the universal assent and
consent of the nation Each was fully rec
ognized and acknowledged to be President
as fully and completely and to all ntents as
if elected to that Office. Mr.. johnson then
became President. Did he have term of OF,
flee? Was he merely the tenant or holder Of
the term of another, and that other his pred
ecessor, President Lincoln? Did Mr.. Lin
coins term continue after his death, as has
been argued? 1t 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 wa:
not Mr.. Johnson's. Ii it was Mr.. Johnson's
it was not Mr.. Lincolp's. If Mr.. johnson
had no term, when do Secretaries appointed
by him go out of Office under the act O
March 2, 1867? When does the one month
after the expiration of the term of the Presi-
dent by whom they have been appointed eX-
pire? A President without term of office
would. under our system, be singular anon
ally, and yet to such a result does this argu
ment lead. / am unable to give my assent t
such proposition. If Mr.. Stanton was lie
gally entitled to hold the Office of Secretar,
Of War on the 21st of February, 1868, a
averred in the first article, he must have beel
so entitled by virtue of his original appoint
ment by President Lincoln, for he had re
ceived no other appointment. If the act o
March 2, 1867, terminated his office, he must
to be legally in office on the 21st of Februar,
1868, have been appointed and confirmed BY
the Senate. He must, therefore, be, assumed
to have held under the commission by th,
terms of which he held during the pleasure
of the President Tor the time being. Ate
the death of President Lincoln, then, he hell
at the pleasure of President John
son, by his permission, up the passage of tn,
| act OF March 2. 1867, and might have beel
removed by him at any time. Did that ac
| change his tenure of Office without a new ap
pointment, and transform what was before
tenure at will into tenure for fixed reri
cd? Granting that this could be legally dom
by an act OF Congress, which may be, an,
will be, questioned, the answer to this inauir,
must depend upon the tenure of the act it
| self Let us examine it.
1t is obvious to my mind that the objec
was to provide for two classes of officers; one
| the heads of departments, and the other com
| prsing all other officers appointed by AM
| with the advice and consent of the Senate
| The act provides for a distinct tenure TO
| each of these classes for the Leads of the de
partments fixed term, ending in one mont
| after the expiration of the term of the Pres
| dent by whom they were appointed; for a
others an indefinite term, ending when SUE
cessor shall have been appointed and dul
| qualified. These two provisions are who'll
unlike each other. Both are intended to az
ply to the present and the future, and to il
clude all who may come within their scop'
Does Mr.. Stanton, by any fair construction
come within either? How can he be include
| in the general clause, when the Secretary {
War is expressly excepted from its operation
| The language is, Every person holding an
civil Office" &C., "shall be entitled to hol
such office, except as herein otherwise pre-
vided." Then follows the proviso in whic
the Secretary of War is specifically desgna
ed, and by which another and a diferer
| tenure is provided for the Seer tarv of Wa