The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1868-06-05

must aver the substance of crimina
. charge. But this 1t does not do. II av
; ers only certain action of the President
mind--no overt act, no conduct Of hi.
good or bad. lie" devised and contriy
ed, and attempted 10 devise and con
trive, means" TO keep Mr.. Stanton on
of office. But he used no means, ant
he took no steps to create or provide
them. Ii is true he is charged with AZ
"attempt to prevent the execution Of
the tenure-of-ofiice act" but only b,
the "devising and contriving, and at
temptingto devise and contrivc, means
TO keep Mr.. Stanton out of office.
In brief, this accusation is that the
President cogitated the means to keer
Mr.. Stanton out of Office, and thereby
violated the tenure.of-office act! 1t i,
too plain for question tina no criminal
act is charged here, nor any fact set
forth upon which judicial investiga.
tion can be had or judgment be pro.
nounccd. But 1t has been supposed and
asserted that this part of the eleventh
article refers to desire and intention
of the President, not on 2lst of Febru-
airy, but in January before, to prevent
Mr.. Stanton from resuming his office.
b. it so. If we are to build up prop
er ,harge with proper date from ma
! te'ials obtained outside Of the articles,
and proceed to try the President upon
it, to what conclusion may we arrive :?
Why, that the President had an inten-
ton to keep Stanton out, and devised a
plan or means for that purpose, but did
not use those means or put that plan in
to execution. Here was no breach of
the tenure-of-ofilce act, or of any other
law. Whether his purpose was good or
bad, it did not lead to an actual oficnse;
and if his intention had been carried
out in an act, what would that act have
been? Why, obviously an oyior for
The remorA Of Stanton before he had
actually resumed his Office. But that
would have raised precisely the same
question which was raised by the order
of removal of 2lst February, which we
are to determine under the first art icle
of Impeachment. An order removing
Mr.. Stanton would have borne the same
legal character whether issued to pro-
vent him from resuming his Office or to
turn him out after he had resumed 1t.
The next clauses and the concluding
clauses of accusation in this article,
aver a de> Using and contriviig, &c, to
prevent the execution of the Army ap-
preparation act, Ia repetition of the
charge in the ninth article, and unprov-
ed and also to prevent the execution
Of the reconstruction act of March 2,
1867, lalso unproved.) Whether these
clauses relate to the same antecedents
or not, and whether they are indepen-
dent of each other or not, we need not
inquire. Nor is it necessary to enlarge
upon the absurdity of holding that a
| contriving to prevent the execution
Of the Army appropriation act ar the
reconstruction act will establish or tend
to establish an attempt to prevent the
execution of the tenure of-oifice act |;
for, as these averments are not prov ed, 4,
their relations to prior parts of the ar
:icle and to each other are unimportant.
THE TENCRE-oF-OFFICEA ACT.
There are several questions relating
to the constitutionalty and construc-
ton of the act of I'd March, 1867, {" to
regulate the tenure of certain civil Off
ces,"l which remain to be examined.
They do not arise upon the considera-
tion of any one article alone, but upon
the consideration Of nearly all of them
and can be most conveniently presented
in this place after thearticles have been
separately examined.
/. Was the tcnure-o f.oflice act consti-
tutional in its application to heads Of
Executive Departments who were in
Office at the time of its passage? This
question assumes, for the purposes of
rgument, that they were brought
within the act by its terms and that Il
new tenure was fixed for them by it. |
have no hesitation in answering this
question in the negative, and in hold
ing that ii was not competent for Con-
gress to assign TO Mr.. Stanton an office
of more extended duration or greater
security of tenure than that which he
held under his commission by virtue of
presidential appointment. This seems
to me too clear for doubt or denial when
we consider the character Of the Office
and the plain words of the Constitution.
The Secretary of War is the head of
an executive Department; his office rs
such head Is expressly mentioned in the
Constitution, and his appointment must
be by the President by and with the
advice and consent of the Senate. As
he is not an inferior officer, within the
meaning Of the appointment clause of
the Constitution, Congress cannot pro-
vide another mode of appointing him,
much less assume the power of appoint
ing him 10 themselves. 1t follows that
they cannot give to secretary right
TO hold his office beyond the term Tor
which he was appointed, or to hold it
freed from condition upon which The
appointment WAS lHaut.
Let this proposition be illustrated by
examples and its truth and soundness
will more clearly appear. Take the
case Of future Secretary, holding, un-
der this tenurc-of-oilic act, for term
Of four years aid one month by virtue
of presidential appointment to which
4 a 4
given, Can Congress by law extend
his term? Can they by statute author
ize him to hold his Office for eight or
ten years instead of four? If so, the
otllcer will hold under the statute dur
ing all the time added to his term in
contempt of the constitutional power
of appointment. Again, suppose the
case of Secretary appointed and com
minsiOned d to hold during the pleasure