The New York herald., 1868-05-18

dutss q sscrsisy Of State hs Tsssa and The Beere
s0'srnnsn or '''knsss Of sishsro nee os'F
WARRINGTON, January T. lsSs.
February 20, 1858, Congress passed third act on
this subject, which declares:-
IL the ssss o. death absence from the seat Of
q the q Ocei either q he
usS hs waoss not IN the head
ssss: , Z. Tsds.s
Ssss e ssss; n said
o. inc & saa % ocss until successor be appointed
Provided that vacancy shall Se Supplied in manner
Aforesaid for longer term than six months.
gress on the subject to which they relate. 1t has
been insisted that, inasmuch as under the act OF
1858 the President had authority to designate any
0ther person 10 perform the duties Of Secretary Of
War than an ofcer In that or some OF the other Ex-
ecuve departments, and then In case OF vacancy to
resrSaton his desgnnon ~ tSe at aea1 ne or
raj OF the army to supply temporarily o vacancy
3ccasoned ee ey removal was without authority Il
doubtless be so but If it did not repeal it, then the
President clearly had the right under that act, which
provided Tor the temporary discharge OF the duties
OF secretary Oh war In any vacancy by any person.
to authorize General Thomas temporarily to dis
charge those duties The law Of 1868, embracing,
as IL does, all the departments, and contain
ing provisions from both the previous statutes,
may, however, be construed to embrace the whole
subject on which It treats and operate as repeal Of
all prior laws on the same subject. 1t must, how
ever be admitted that 1t Is by no means clear that
the act OF 1853 does repeal SO much Of the act OF
the temporary discharge OF the duties Of an ONCE
rom which an incumbent has been removed,
or whose term OF office has expired by limitation
before the regular appointment OF q successor.
II has been argued that the Tenure Of once act Of
March 1897 repealed both the act OF 1906 and that
cancies In the departments. This is an entire mis-
apprehension, The eighth section Of the Tenure Of
Once act reGSnizes that authority by making It the
PRESIDENT
made. to notify the Secretary Of ne Treasury
thereof; and II any one Of the Secretaries were to
die or resign tomorrow, the authority Of the Pres
dent to detail an officer In one OF the Depart
ments TO temporarily perform the duties OF the
vacant ONCE under the act OF 1858, would be unques-
Toned This would not be the appointment Of an
oficer while the Senate In session without its
Consent; bnt simply directing person already In
Office to discharge temporarily, In no one case ex-
ceedng six months, the duties Of another office not
then led 1t Is the issuing Of letter Of authority in
respec. 10 . p removal appointment or employment,
act that Is made high misdemeanor. As the order for
the removal OF Mr.. Stanton has Already been shown
act" anv letter Of authority in regard to 1t s not
bidden by the sixth section thereof Admitting,
however tnat there was no statute in existence ex-
pressly authorizing the President to designate the
Adjutant General Of the army temporarily to dis
charge the duties OF the Office Of Secretary Of War;
made vacant by removal, till SUCCESSOR whose
nomination was proposed the next day, could be
Confirmed, does 1t follow that he guilty of high
misdemeanor IN making such temporary designation
when there was no law making 1t penal Onence or
prohibiting it2 Prior to 1885, as Mr. LincoIn's mes
sage shows there was no law authorizing these tenn
p0rary designations In any other than the three de-
partments Of State Treasury and War; and yet
President Lincoln himself, on the I'D OF September,
1892 prior TO any law authorizing it, issued the fol-
lowing letter OF authority appointing Postmaster
General dG diterjDl:-
hereby appoint st. John L. 81 skinner now acting First
% place hon. cSEs
To nroyide for tennorarv disabilities or voroneaa
in the Navy Department and for which no law at
the time existed, President Jackson, during his ad
made ten different designations or
appointments OF secretaries Of the Navy dd Interim.
Similar at interim designations in the Navy Depart
ment were made by Presidents Van Buren,, Harrison,
Tyler, Polk Fillmore aud others; and these appoint
ments were made indiscriminately during the ses-
sons Of the Senate well during its recess. Az
no law authorizing them existed at the time these
ad interim appointments were made In the Navy aud
Post ONCE Departments 1t must be admitted that
they were made without authority OF law; and y {,
who then thought, or would now think, OF impeach-
Ing for high crimes and msdemean0rs the Presidents
vino made tnemf President Buchanan, in commu-
subject Of dd interim appointments used the follow
Ing language
% %sy At time na in the
s,sa make ws a wS BE the
equally wise limit the Executive discretion prevent
Sy o. Their law has been questioned for sstys yeair
vacation darins The session Gonsress heen
period 60 srnmsn perfect has nevs
so my been q denied Wh0H
% Ss s ss s C hs
hundred and from as
clo.e Of General rierces This mum e, would probably
subordinate oces and bureaus were added to the count
Some Of them made while the senate session
long alter the Senate assembled sometimes the temporary
sometmes ssbornats in the ssme department. spmetmes
the affairs OF the Navy Department have been directed
general '0""0'''' anu '''s Oh ''' war department ''
Importance is sought to be given to the passage 10y
the senate, before the impeachment articles were
found by the House Of Representatives Of the follow
Ing resolution
Resolved by the Senate OF the United States That under the
Ss S sns
any other ocer TO perform the duties Of that officer al
AS II Senators sitting as court on the trial Of the
President for high crimes and misdemeanors would
sed hastily any a
Iournment on the very day the orders to Stanton
and Thomas were issued. Let him who wo6ld be
guilt or innocence Of the accused, and not by the law
and the facts as they have been developed on the
lriaI sneiSsa . ntuse , umuer sqcn ,esolusion an
that the resolution coupled the two tnings-the re-
mova Of the Secretary OF War and the designation
Of an officer al tnteffntoqether, that those who
believed either without authority were compelled to
vote for the resolution.
MY understanding at the time was that the act OF
1868 repealed the act OF 1896 authorizing the desgna
lion Of Secretary Of War al iterfs In the place Of
q secretary removed; but i never entertained the
opinion that the President had not power to remove
the Secretary Of War appointed by Mr. Lincoln during
first term. Believing the act Of 1875 to been
repealed, was hound to vote that the President had
no power under tho law to designate Y Secretary
Of War dd interim to I'LL vacancy caused by re-
mova, just as would feel bound to vote for reso-
uton tnat neither President Jackson nor any Of his
successors had the power, under the law, to desig
nate al interim Postmaster General or Secretaries
Dt the Navy and Interior prior TO the act OF ls0J;
but i BY 99 means s2l2ws tlat laX Tsrs gg22aiy
such temporary designations. They acted without
be snadow OF statutory authority IN making 8uch
appointments. Johnson claims, and not without
plausib'ity that no had authority under the act OF
% perform temporarily the duties Of Secretary OF
war; but II that act was repealed, even then he
simply acted as his predecessors had done with the
Of the nation for forty years before.
Considering that the facts charged against the Presi