New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-02-25

polh necessary ana proper MY UNDERMINING ana
wishes however under that order Of Suspension were
frustrated and the late order for Mr. SsntOns removal
was further step toward the accomplishment Of that
purpose. repeat that-my own convictions as to the
true construction Of the law and TO the constitutional
ity were well settled and sustained by every mem
Der Of my Cabinet including Mr.. Stanton himself Upon
the question OF cOnsttutOnatY each one In turn deber
aely advised me that the TenureofOce act was uncon-
stul0na Upon the question whether as 10 those mem
beers who appointed by my predecessor that act
took from me the power 20 them, Of those
members enphatcay stated the presence Of the 9th
sitting in Cabinet, that they did not come within the
provisions OF the act and protection 10 Them
No dissened from this construction and understood
them all 30 acquiese in It's correctness In matter OF
such grave consequence not disposed 70 rest upon
my opinions though fortified by MY constitutional
advisers have therefore sought to bring the question
at as early day possible before the Supreme Court OF
the United States for final and authoritative discussion
In respect much Of the resolution as relates 10 the
designation Of an officer to act as Secretary OF war ga IT.
t have only TO say tat have exercised IRIS power
under the provisions the first section Of the act OF req
49, 1895 which, far they are applicable 10 vacancy
caused by removals understand 20 lie still III force.
The legislation upon the subject Of al interim appoint
ments i'm the Executive Departments stands as 70 the
War Office follows The section OF the act OF the 7h
OF August, 1852 made provision for vacancy IN the
very case Of emoval OF the head Of the War Depart
IL =
custody Of the records books and papers to the Cher
Clerk Next by the act Of the sh of May, i7o2 section
g. Il provided that in Of vacancy occasioned ny
death from the seat Of government OF sickness
OF the head of the War Department, the President may
authorize person TO perform the duties oil tue opce
until successor is appointed or the disability removed
The act IL viii be observed does not provide Tor the
case of n vacancy caused by removal Then.
by the first section OF the act Of Feb 49,
1895 it Is provided that in case OF any va
cancy the President may appoint person to perform
the duties while the vacancy exists. These acts are foF
lowed by Of the Goth Of February Ices, 10y the first
section OF which provision Is again made for vacancy
caused 10y death resignation absence from the seat Of
government. sickness OF the head of any Executive
department and upon the Of such vacancy
power given to the President 10 authorize the head OF
any other Executive Department other officer in either
OF said departments. whose appointment vested IN the
President ut his discretion. TO perform the duties OF the
said respective officers until successor be appointed or
until such absence inability 10y sickness shall cease,
provided that no orc vacancy shall be supplied in the
manner aforesaid for longer term than SIX months
This law with some modiacations rctuaC.s tie Act Of
1892 and provides did that act Tor the sort Of vacan'
ces TO be filed but like the Act Of 792 It makes
provision for vacancy 0ecasiohtd BY removal II has
reference altogether to vacancies arising from Other
causes According TO my construction OF the Act Of 1865
while implicitly repeats the Act of 1892 regulating the
vacancies therein described Il has bearing whatever
upon Inuch OF the Act of 1795 applies 10 vacancy
caused by removal The Act Of 1885, therefore, furnishes
the rule for vacancy Occasoned by removal Ono OF
the vacancies expressly referred 70 in the Act OF the 18th
Of August 1884, creating the Department OF War Ger
tanly there is no express repeal by the Act OF 1855
OF the Act OF 1895 The repeal. II there ia any,
is by implication and can only DO admitted 30
far as there is clear Inconsistency between tho
two acts The Act Of 1875 is Inconsistent with
that Of lso3 TO vacancy oceasohed by DEATH resig
nation absence sickness but not all inconsistent as
to vacancy caused by removal 1t is assuredy proper
that the President should have the same power to MI
temporarily a vacancy occioned by removal, as he has
10 supply place made vacant by death or expiration OF
IT, for instance, the incumbent Of an office should
be found wholly unfit to exercise the functions. and the
public service should require his immediate expulsion
remedy should exist and be at applied, and time
be allowed the President 10 select and appoint sue
cessor permitted him in case OF vacancy caused by
death or the termination OF official term The Reees
sty therefore, for Gd interim appointment is just as
great and indeed may be greater in of removal
than in any others Before it be held therefore, that the
power gwen by the act OF 1926 in of removal is abro
gated by succeeding legislation express repeal ought
to appear; so wholesome power should certainly not
be taken away by loose implication IL may be however
that in this In other cases OK implied repeal doubts
may arise 1t s cOnessedy Of the subtle and debate
able questions which arise in the construction Of
statutes IT, upon such o question, have fallen
into an erroneous construction submit whether IL
should be characterized a violation Of official duty
and of law have deemed it proper in vndication Of
the course Of which have considered It my duty to take
TO 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 OfOce
act IL unconstitutional and therefore void and although
have expressly cOncurred that opinion in the veto
message which had the honor TO submit 70 Congress-
when returned the bin for reconsideration, have TO
Trained from making removal OF any officer contrary to
the provisions Of the law and have only exercised that
power in the case Of Mr. Stanton. which, In my Judgment
did not come within its provisions have endeayOred
10 proceed with the greatest creumspectOn and have
acted only in an extreme and exceptional case carefully
following the course which have marked out for mysefas
a general rule, faithfully execute all laws though
IA ssed over my objections the OF constitutions
ay In the present instance have appealed or sought
10 appeal to that final arbter fixed by the Constitution
for the determination Of all such questions To this course
have been impelled by the solemn obligations which
rest upon me- to sustain nyioate the Of the high
Office committed to nay hands whatever be the coDse
quenees merely personal to myself could not allow
them TO prevail against public duty clear 10 my own
mind and so imperative. If what possible had been
certain If had been fully advised when removed Mr
Stanton that in thus defending the trust committed to
my hands my own removal was sure to follow could
not have hesated actuated by public considerations OF
the highest character earnestly protest against the
resolution of the Senate which charges me in what have
done with violation OF the Constitution ana laws OF the
United States ASDKL" JohNeoS'
Washington, d. O., Feb. %, 1868.
f-rsrx