The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-02-26
Message of the President to
a the Senate.
He Violated the Lac in Order to
Test IT,!

| r L nave received a copy VI lCSOlublOIS
adopted by the Senate on the Il inst, as fol
| lows:
"Whereas, The Senate have received and
| considered the communication of the PreSId-
emit, stating that he had removed Edwin M.
| Stanton, Secretary of Mar, and designated the
Adjutant General of the army to act as Sec
rotary of War dd interim therefore
ReSOt0ed, By the Senate of the United . Eiites
that under the Constitution and laws OF the
United States the President has no power 10
another officer to perform the duties OF that
| Office dd interim.
mis- resolution is confined to the power of
the President TO remove the Secretary of War
duties of that office ad interim, and by its pre-
| amble 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 dis
| cuss the general power of removal as to all
| officers, upon which subject no expression of
| opinion is contained in the resolution, 1 shall
| confine myself to the question as thus limited,
| viz: the power to remove the Secretary of
| War. 3D..
| 1t 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 dd
| Interim AS to the question of power under
| the Constitution, do not propose at present
| to enter upon its discussion. The uniform
| practice from the beginning of the govern
ment, as established by every President who
ever exercised the Office and the decisions of
| the Supreme Court of the United States have
settled the question in favor of the power of
| the President to remove all officers excepting
| a class holding appointments of a judicial
| character Nor practice, or any decision, has
| excepted Secretary of War from this general
| power OF the President to make removals from
office. 1t is necessary, then, that / should
| refer to the power Of the executive under the
laws tf the United States, to remove the Sec
| rotary of War. The resolution denies that I'M
| der these laws, this power has any existence;
| in other words it affirms that no sucl author
| ity 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? know but two
laws which bear upon this question. The first
| in order of time is the act of August 7, 1879,
| creating the Department of War, which, after
| providing for Secretary as its principal Of
| fcer, proceeds as follows:
"Sectiop 2. And be it further enacted, That
| there shall be in said Department an inferior
| officer, to be employed therein as he shall
| deem proper, and to be called the chief clerk
| in the Department of War, and who, when
ever 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 ap-
| pertaining to the said Department"
| 1t is clear that this act, issued 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 existing
| in the Executive alone, without the concur
| renee OF the Senate or any other department
of the Government. Fl lTsu :.
Furthermore this act does not profess to con-
fer tie power by legislative authority, nor in
fact was there any other existing legislation
through which 1T was bestowed upon the Exc
cutiye.. The recognition of the power Of fh this
act is therefore compete as -a-rscognition un-
der the Constitution itself, Tor there was no
| other selllfcs OF authority from which it could
/ be derived
The other act which refers to this question
| Is that regulating the tenure of office, passed
by Congress on the second day of March, 1867.
The first section of this 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 consent of the Senate, and every
person who shall hereafter be appointed to any
such office, and shall become daily qualified to
act therein shall be entitled to hold office
until a successor shall have been in like man
ner appointed and duly qualified, except as
herein otherwise provided: Provided that the
Secretary OF State, of the Treasury, of War, of
the Navy and of the Interior, the Postmaster
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" l
The fourth section of the said act restricts
the term of office to the limits 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 SEN
ate, shall hold such office until successor
shall have been in like manner appointed. It
-. 4Al-o L. ~. IN
independence OF removal, and to require for
such removal the concurrent action of the
President and the Senate. Il
The proviso that follows proceeds to fix the
term OF office of the several Heads of Depart
ments whose tenure never had been defined
before, by prescribing that they 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 Thus as to these enumer-
ated officers the proyiso takes from the Presi-
dent the power of removal, except with the adj
vice and consent of the Senate. BY its terms,
however, before he can be deprived of the
power to dlsplace them 1t must appear that he
himself has appointed them 1t 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
President beyond one month after the Access
sion of his successor.
In the case of Mr.. Stanton, the only appoint
ment under which he held the office of Sec
rotary of War, was that conferred upon him
by my immediate predecessor, with the ad-
vice and consent of the Senate. He has new
er held from me any appointment as the head
of the War Department. Whatever right he
had to hold tue office was derived from that
original appointment and my own sufferaace
/ The law NOT intnndad RI aof tba in,
cumbent of the War Department, by taking
from the President the power to remove him.
This, in my Judgment, is perfectly clear, and
the law itself admits of no other just con-
struction. We find in all that portion of the
first section which precedes the proviso that,
as to civil officers generally, the President 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 as
to them the express and only requirement.
is that the President who has appointed them
shalfnot, without the advice and consent of
the Senate, remove them from office. The
consequence is that, as my Cabinet embraces
the seven officers designated in the first sec
tion of the act, it takes from me the power
without the concurrence OF the Senate to re-
move any one of them that have appointed;
but it did not protect such of the N as l
did not appoint. nor give to them any
tenure of office beyond my pleasure.
An explanation of this act shows that while
in one part of the section provision is made
for offices generally, in another clause there is
a class of offices designated by their official
titles who are exempted from the general
terms of the law, with reference to whom
clear distinction is made as to the general
power of removal, limited in the first clause
OF the section. The distinction is that as to
such of these enumerated offices are held
under the appointment of the President
The power of removal can only bel exerc sed
by him; there is no denial of his power to dis
place them. 1t would be violation of the
plain meaning of this enactment to place Mr.
Stanton upon the same footing as those heads
of departments who have been appointed by
myself. As to him, this law gives him no ten
ure of Office. The members of my Cabinet
who have been 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 wish
es of my successor, hold a moment thel Q after.
If he should be permitted by that successor
to hold for the first two weeks would that sue
cessor have no power to remove him? But
the power of my successor over him could be
no greater than my own. If my successor
would have the power to remove Mr.. Stanton
after permitting him to remain period of two
weeks, because he was not appointed by him
but by his predecessor, l, who have tolerated
Mr.. Stanton for more than two years, certain
ly have the same right to remove him,
and upon the sound ground named, that
he was not appointed by me, but
my predecessor. Under this construc-
ton OF the Tenure of Office act l have
never doubted my power to remove Mr.. STAN
ton. Whether the act was constitutional or
not, it was always my opinion that it did not