The New Orleans crescent., 1868-02-29
Conclusion Of the Presidencs Message a
Relation Go the Removal Of stsnsoB.

have been aware that there were doubts as 10
the construction OF the law, and from the first
deemed IL desirable that st the earliest possible
moment these doubts should be settled, and the
true construction OF the act fixed by the decision
OF the supTems Court OF the United states. My
order Of suspension IN August last intended 10
place the case 10 such position would make
resort 10 judicial decision both necessary and
proper. Ny 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 accomplishment of that
purpose.
! repeat that my own convictions az to the
true construction Of the law and as to its consd-
tu,ioDafy were well settled, and were sustained
by every member Of my cabinet, inclading Mr.
Stanton himself. upon the question Of its const-
tutionaty-s Each one 10 turn deliberately advised
me that the tenure OF Office act was unconstitu-
tioDal Upon the question whether. as to those
members who we're appointed by my predecessor,
that act toVk from me the power to remove them,
Que of those members stated emphatcaliy, In the
presence Of the others sitting in the cabinet that
they did not come within the provisions Of this
act, and il was no protection to them. No one
dfsented from this construction, aud
understood them ell TO acquiesce ia its cor
Iectness. In matter of such grave consequence
Twas not disposed TO rest upon my own opinions,
though fortified by my constitutional advisers. |
have; therefore, sought to bring the question at
as early day as possible before the Supreme
Court OF the United States for final and suthorita-
tive decision. ln respect TO 80 much Of the reso-
act as secretary Of war dd Interim have only To
say have received this power under the pro-
visions of the first section OF the act Of February
Is, 1895, which, so far as they are applicable 70
the vacancy caused by removals, understand to
be still in force. The legislation upon the subject
of dd interim appointments in the executive de-
partment stands to the war Office as follows:
The section of the act of the 7th of August,
1882. made provision for vacancy in the very
case Of a removal Of the head of the war depart.
N he oh
and custody OF the records, books and papers to
the clerk, but by the act Of the 9th of May, l792
section s, il is provided that In case OF vacancy
occasioned by death or absence from the seat of
the government the sickness Of the he ad Of the
war department, the president may authorize a
person TO preform the dures OF the Office until a
successor Is appointed or the disability removed.
The acts it will be observed, does not provide for
the case Of vacancy caused by removal. rhen
by the first section OF the act Of February l3,
1895, ii IL provided that 10 case of any vacancy
the president may appoint a person to per.
form the duties while the vacancy exists.
These acts are followed by that Of the Goth Of
February, 1868 by the first section Of which psO-
visien is again made for vacancy caused by the
death, resigDati0ns absence from the seat OF gov
errmen, or sickness, OF the head Of any executive
department, and upon the occurrence of such
vacancy, power is given to the president to au-
thoTize she head OF any other executive depart
ment or other officer in either of said departments
whose appointment is vested in the president at
respective officer until successor be appointed,
or such absence or inability by sickness shall
cease provided that no one vacancy shall be SUP.
piled IN the manner aforesaid for longer term
than six months. This Law. with some modifca-
tions, re enacts the act Of 1892, and provides as
did that act for the sort Of vacancies to be filled;
but unlike the act of 1892, it makes no provision
for vacancy occasioned by removal. 1t has refer
ence altogether to vacancies arising from other
causes. According TO my construction of the act
of ls63, while it implicitly repeas the act of 1892
regulating the vacancies therein desert Ded il has
no bearing whatever upon so much of the act of
1895 as applies TO vacancy caused by removal
The act Of l795, therefore, furnishes the rule for
q vacancy occasioned by removal, one Of the va
cancies referred to ia the act Of the 9TH Of August
1853, creating the department Of war. Ger alny
there is no express repeal IN the act of 1868 of
the act of 1895. The repeal If there is any, is by
implication, and can only be admitted 20 far as
there is q clear inconsistency between the two
acts. The act of 1895 is inconsistent with that of
1868 as TO vacancy occasioned by death, resg-
nation absence, or kckness, but not at all inc0n-
sisient as TO a vacancy caused by removal. IL Is
assuredly proper that the president should have
the same power TO fll temporarily vacancy by
removal ss he has TO supply place made vacant
by death or expiration Of a term.
II, for instance, the Incumbent OF an Office
should be found wholly unfit TO execute the fuac-
tons, and the public service should require his
immediate expulsion, remedy should exist and
be at once applied, and time be allowed the
president to select and appoint successor, as is
permitted him iB the case OF vacancy caused by
death or the termination Of an official term. The
necessity, therefore, for an dd interim appoint
ment is just as great, and, indeed. may be
greater, In cases of removal than in others. Be-
fore 1t be held, therefore, that the power given
by the act Of 1895, in cases of removal, is abro-
gated by succeeding legislation, an express re-
peal ought to appear. So wholesome power
should certainly not be taken away by loose i'm
plcation. 1t may be, however, that in this as in
cac ~ inn
1t is confessedly Que Of the subtle and debstable
questions which arise in the construction of
statutes. II upon such question have fallen
into an erroneous construction, submit whether
il should be characterized IS violation Of official
duty and OF law.
Ihaye deemed II proper in vindication of the
course, Of which have deemed it my duty to
take, 10 place before the Senate the upon
which have based my action, although have
been advised by every member Of my cabinet
that the entire tenure Of Office act is uncOn titu-
tional and therefore void, and although have ex.
pressly concnrred in that opinion, in the veto
gress when returned the bill for consideration,
have refrained from making q removal of any
officer contrary to the provisions Of the law, aud
have only exercised that power in the case Of Mr..
within its provisions. have endesvored to pro-
ceed with the greatest circumspection, and have
acted only in an extreme and exec optional case,
carefully following the course which 1 have
marked out for myself, as general rule, faith
fully to execute laws, though passed over my o5-
jecuons ON the score OF constitutonality.
In the present instance l have appealed, or
sought TO appeal, to that final arbter fixed by the
Constitution for the determination OF all such
questions. To this course | have been impeled
by the solemn obligations which rest upon me TO
sustain insioate the powers Of the high Office
committed 10 my hands. Whatever be the conse-
quences merely personal to myself, could not
allow them 10 prevail against a public duty 50
clear TO my own mind and SO imperative. If
what was possible had been certan-if | had
been tally advised when l removed Mr.. Stanton
that in thus defending the trust committed to my
hands my own removal was sure TO follow.sI could
not have hesilated. Actuated by public conside-
TstiOns of the highest character, earnestly pro-
test against the resolution Of the Sena g, which
charges me in what have done with violation
OF the Constitution and laws of the United States.
ANDREW JOHNSON.