The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-02-28

War Department Whatever right he had
hold the Office was derived from that originl
appointment and my own sutferance.
The law was not intended to protect such a
incumbent of the War Department BY takln
from the President the power to remove hin
This, in my Judgment. is perfectly clear, an
the law itself admits of no other just construc
} ton. We find in all that portion OF the frs
section which proceeds the proviso that rs t
civil officers generally, the President is depriv
ed of the power of removal; and it Is plain tina
if there had been no proviso, that power woul'
just as clearly have been taken from him, 81
far as 1t spplics to the seven heads OF the de
partments, but for reasons which were NJ
doubt satisfactory to Congress. these prlncipa
officers we're specially provided for. aud as tt
them the express and only requirement is tina
tho President who has appointed them shal
not, without the advice and consent oil thu
Senate, remove them from Office. Tho consc
quence is that as to my cabinet, embracing tht
seven officers designated in the first section
the act takes from me the power, without the
concurrence OF the Senate, to remove any ont
of them that have appointed, but does mo-
protect such of them as l did not appoint, mol
give to them any tenure of Office beyond my
pleasure.
Al examination of this act, then, shows thai
while in one part Of the section provision is
made for officers generally, in another clause
there is O class Of officers designated by then
official titles, who are excepted by The genera
terms OF the law, and in referencoto whom
cleG: distinctinction Is made as to the general
power of removal lmitedin the first clause oi
the section. This distinction is that as to such
of these enumerated officers as hold under the
appointment Of the President, the power of re-
moYal can only be exercised by him with the
| consent Of the Senate, while rs TO those who
have not been appointed by him there s NO
like denial Of his power to displace them. II
/ lo,,, af
this enactment to place MIR. Stanton upon the
same footing as those heads of departments
who havo been appointed by myself. AS to
him, this law gives him no tenure Of office.
The members OF my cabinet who have boon
appointed by me are, by this act, entitled to
hold for one month after the term OF my office
shall cease; but Mr.. Stanton could not, against
the wishes OF my successor, hold m ment
thereafter. If he were permitted by that sue
cessor to hold for the first two weeks, would
that successor have no power to remove him
But the power of my successor over him could
be no greater than my own. Ii my successor
would have the power to remove MIR. Stanton
after permitting him to remain period OF two
weeks because he was not appointed by bim,
but by his predecessor, l, who have tolerated
Mr.. Stanton for more than two years, certainly
have the same right to remove him. and upon
the same ground, namely, that he was not ap-
pointed by mo, but by my predecessor.
Under this construction OF the Tenure Of
Office act have never doubted my power to
remove Mr.. Stanton. Whether the act was
constitutional or not it was always my opinion
that it did not secure HIM from removal. l
was, however, aware that there were doubts
rs to the construction Of tho law, and from tho
first deemed it desirable that at tho earliest
possible moment those doubts should be set
tied, and the true construction OF the act fixed
by the decision of the Supreme Court oil the
United States. My order of suspension, in
August Lost. was intended to place tho case in
such q position as would make resort to n
judicial decision both necessary ard proper.
My understanding and wishes, however. under
that order of suspension, were frustrated, and
the late order for Mr.. Stanton's removal was
further step towards the nc omplishment Of
that purpose.
1 repeat that my own convictions as to the
true construction of the law, and Us to its coli-
stitutionality, were well settled aud were sus-
tanned by every member of Eiy Cabinet, includ-
ing Mr.. Stanton himself. Ui'0n tho question
Of copstitutlonality each one in turn deliberate.
" advised me that the Tenure of Office act was
unconstitutional. Upon the question whether,
as to those members who were appointed by
my predecessor that act took from me the
poweg to remove them, one of those members
emphatically stated, i'll the presence of the
others sitting III Cabinet, that they did not
come within the provisions of the act, and it
from this construction and understood them
all to acqulesce IN Its correctness.
In O. matter of such grave consequence Twas
not disposed to rest upon my VIII opinions,
though fortified by my constitutional advisers.
I have therefore sought to bring the question
at as early day as possible before tho Sn-
preme Court OF the United States for final and
authoritative decision. In respect to so much
OF the resolution as relates TO the designation
of an officer to act as Secretary of War al IN
ternl l have only to say that l have exercised
this power under the provisions Of tho first
section OF the act OF February 49, 1795, which,
SO far as they are applicable to vacancies
caused by removals. understand TO be still IN
force The legislation upon the subject of al.
interim appointments in the executive depart
ments stands as TO the War Office as follows:
Tho second section OF the act OF the 7th ofAu-
gust, 1769 makes provision for vacancy in the
very case of a removal of the head ofthe War De-
partnlent, and upon such vaca.cy gives the
charge and custody OF the records, books and
papers to the chief clerk. Next, by the act OF
the 9th of May, 1892, section eight, it is pro-
vided that in case of vacancy occasioned by
death, absence from the seat Of government,
or sickness Of the head of the War Depart
ment, the President may authorize person to
perform the duties of the office until success
sor id appointed or tho disability removed.
The act, it will be oh erved, does not provide
for the case of vacancy caused by removal.
Then by the first section Of the act Of Fcbru-
ary 18th, 1895, it is provided that in case OF
any vacancy the President may appoint Il per-
son 20 perform the duties Willie the vacancy
exists. These acts arc followed by that Of the
Goth February, 1863 BY the first section of
which provision is again made foi vacancy
caused by death, resignation, absence from the
seat of government, or sickness OF tie head OF
any executive department of tho government;
and upon the occurrence of snch vacancy,
power is given to the President to authorize
the head of any other executive department,
or other officer in other Of said departments
whose appointment is vested i'll the President,
at his discretion, to perform the duties OF the
said respective Offices until Il successor be up-
poiEted or until such absence Of inability by
sickness shall cease; provided that 10 one va
cancy shall be supplied in manner aforesaid for
longer term than sax months.
This law, with some notifications, rc-enacts
the acts of 1892, ard provides, rs did that act,
for the sort of vacancies so to bc filled, but like
the act of 1892, it makes no provision I0r va
cancy occasloned by removal. II has reference
altogether to vacanciea arising from other
causes According to my construction OF tho
act uI 1868, while it impiicdly repGals Tho act
of 1892, regulating the vacaIcics therein des-
cribed, it has no bearing whatever upon so
much OF tho act Of 1875 MS applies to q vacan: "
caused by removal. The act OF 1895, therefore,
furni shes the rule tor q vacancy occasi0ned by
rcmoval-one of the vacancies expressly refer
rcd 10 in the act of the 7th OF August, 1889,
creating tho department Of war.
Certainly there IS no express repeal by the
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