The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-05-19

nuentlal ADVISERS, must, think, reief 10 the
period OF actual service. Any other con-
structlon might lead to strange conclusions
| For instance, suppose President and Vice
| Pie i1ent should both die within the first
| year Of the term for which they were elected
| as the law now stands, a new election must
be held within thirty-tour days preceding the
| first Wednesday of December then next en-
suing. A new term OF four years would COM
mence with the Inauguration of the new
] President before the term OF the pre-
ceding President had expired. Do the heads
OF departments appointed by that preceding
| President hold their offices icr three years OF
the term Of the new President and until one
month after the expiration ol the term for
| which such preceding President was elected ?
| such would be the consequence Of giving to
the word term" any other meaning than the
term of actual service. 1t must be evident,
therefore, that the word 'term' of the Pres-
dent, as used in the proviso, IS inseparable
| from the individual, and dies with him.
Ii am right in this conclusion, Mr.. Stan
ton, as Secretary OF War, comes neither with
in the body OF the section nor within the
proviso, unless he can be considered as haV-
ing been appointed by Mr.. johnson. Words
used 10 statute must by all rules of con-
struction, be taken and understood in their
ordinary meaning, unless Il contrary inten-
tion clearly appears. As used to the Constitu-
tion, appointment implies a designation, an
act; and with regard to certain officers, in.
Guiding the Secretary of War. it implies a
nomination to the Senate and a confirma-
ton by that body A SSecretary of War can
be appointed in no other manner. This is
the legal meaning of the word appointment"
Is there any evidence in the act itself that the
rd"appointed,' ''as used in the prOvisC, was in
intended any other meaning? The same word
occurs three times in the body of the
section, and in each case of its use evidently
has its ordinary constitutional and legal sig
nlhcat1on. There is nothing whatever to
show that it had or was intended to have any
other sense when used in the proviso. 1t so
then it cannot be contended that Mr.. STAN
ton was ever appointed Secretary OF War by
MIR. johnson, and he cannot, therefore, be CON
sidered as included in the proviso. The re-
suit is that he is excluded from the general
provision because expressly excepted from
its operation, and from the proviso by not
coming within the terms of description.
1t not unfrequently happens, as every lawyer
is aware that a statute fails to accomplish
all the purposes of those who framed it,
from an inaccurate use of language, or an
imperfect description. This NAV be the case
here. But when it is considered that this
provisO was drawn and adopted by eminent
lawyers, accustomed tU legal phraseolOgy, who
perfectly well knew and understood the po-
sition in which certain members of Mr..
Johnson's Cabinet stood, not appointed by
him, but only suffered to remain in office un-
der their original commissions fiom President
Lincoln, and when it is further considered
that the object of that proviso was to secure
TO each President the right of selecting his
own Cabinet officers, it is difficult to suppose
the intention not TO have been to leave those
officers who had been appointed by President
Lincoln to hold under their original commits
sion and to be removable at pleasure. Had
they intended otherwise it was easy so to pro-
vide. That they did not do so is in accord
ance with the explanation given when the
proviso was reported to the Senate, and which
was received with unanimous acquiescence
1t has been argued that Mr.. johnson has
recognized Mr.. Stanton rs coming within the
first section of the act of March 2, 1867, by
suspending him under the provisions OF the
second section. Even if the President did so
believe it by no means follows that he is
guilty of msjemeanor in attempting to
remove him. If that view was erroneous the
President is not impeached for acting con-
trary to his belief, but for violating the Con-
stitution and the law, and it may be replied
that if the President did entertain that opin-
ion, testimony was offered to show that
his Cabinet entertained a different view.
Whatever respect the-opinion of either may
be entitled to, it does not settle the ques-
tion of construction. But a sufficient an
swer to the argument is that whether Mr..
Stanton comes within the first section of the
statute or not, the President had clear right
to suspend him under the second section.
That section applies to all civil officers, ex-
cept Judges OF the United States Courts APP
| pointed as aforesaid-that Is, by and with
the advice and consent OF the Senate, and
Mr.. Stanton was such an officer, whatever
might have been his tenure of office. The
same remark applet to the eighth section,
in relation to the designation of General
Thomas. That section covers every person
designated to perform the duties of any
Office without the advice and consent OF
| the Senate Both of these sections are gen.
| coming within their provisions, whether in
cluded in the first section or not. | con-
cude, then, that as Mr.. Stanton was ap-
pointed to hold during the pleasure Of the
President, for the time being, and his ten
ure was not affected by the act of March 2
1867, the President had right to remove
| him from office on the 21st of February, and
consequently cannot be held guilty under
the first article.
| Even, however, il / were not satisfied OF
the construction given herein OF the act OF
March 2, 1867, should still hesitate to con-
| vict the President of high misdemeanOI
for what was doue by him on the 21st o
February. The least that could be said of the
| application of the first section of that act t.
the case OF Mr.. Stanton is that its applica
ton is doubtful. Ii in fact Mr.. Stanto
comes within it, the act done by the Presi
dent did not remove him, and he is still Sec
retary of War. 1t was at most, an attemp
On the part of the President, which b
might well believe he had right to make
The evidence utterly fails to show any de
sign on the part of the President to effect hi
purpose by force, or violence. 1t was bu
the simple issuance of a written order whic
failed of its intended effect. To depose til
constitutional Chief Magistrate of great Ds
ton, elected by the people, on grounds S
slight, would, in my judgment, be an abuS
of the power conferred upon the Senate
which could not be justified to the country c
the world. To const.ue such an act as
high crime. or misdemeanor, within til
meaning of the Constitution would, whe
the passions of the hour have time to COOL
looked upon with wonder ii not with derisiol
Worse than this, it would jnhict wound III
on the very structure Of our government
which time would fail to cure, and whic
might eventually destroy it. 1t may b
further remarked that the President is nc
charged in the first article with any offenc
punishable or even prohibited by statute Th
removal of ali officer contrary to the prc
visions of the act OF March 2, 1867, is pun
ishable under the sixth section as a hig
misdemeanor. The attempt so to re
move is not declared to be crime
The charge is that the President issued til
order of Feb. 21, 1868, with intent to violat
the act, by removing Mr.. Stanton. If, ther,
fore this attempt is adjudged to be hig
misdemeanor, it must be adjudged, not be
cause the President has violated any law G
constitutional provision, but because, in til
judgment OF the Senate, the attempt to vic
late The law is in itself such a misdemeano
as was contemplated by the Constitution
and justifes the removal OF the Presiden
from his high Office.
APPOINTMENTS AID INTERIM.
The second article is founded upon lette
of authority, addressed by the President t,
Gen. Lorenzo Thomas, dated Feb. 21, 1865
The substantial allegations of the article ar
that this letter was issued in violation of tn
Constitution, and contrary to the provision
of the act regulating the tenure of certai
civil offices, without the advice and conser
of the Senate, that body then being in ce
sion, and without the authority of Law
there befIg at the time no vacancy in the o
flee of Secretary OF War. In the view ! hay
taken of the first article, there was legally
vacancy in the Department of War. Nj
Stanton having been removed on that sam
day, and the letter Of authority so states III
fact, and is predicated thereon. 1t is we
established principal of law, that where tw
acts are done at the same time, one OF whlc
in its nature precedes the other, they mu;
be held as intended to take effect in the
natural order. The question is, whether a va
: cancy existed which the President had a leg;
right to fill by designation of some perso
| tn act temnOrarly as Secretary dd interim