The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-05-01

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tended to prevent rebels of the South or the rebel
sympathzers, as they called in the North from
ntimidatng officers In the discharge of their public
duty should be wres.ed to an Indictment and trial oS
PRESIDENT OF the United States and of an oiicer
OF the army on account OF written arrangement
OF orders to take possession OF and to administer one
| OF the departments OF the government against the
law, il wrestling the statute wholly from lis appca-
ton. We are all familiar with the Illustration which
blackstone gives OF the improperly of following
literally the words OF statue against the necessary
implication where he says, "a statute against letting
| ment against surgeon Tor tapping the vein
| OF an apoplectic patient who happened to
have fallen on the sidewalk" And there is greater
provision and cOntrarety In this effort to make this
statute applicable to ordinary and regular proceed
ings between recognized officials OF the United States
In the disposition of office than there would be in
Furnishing the surgeon for relieving the apopectic
| patient l could not fully understand, though !
carefully attended to it, the point OF the argument OF
| the learned Manager. Mr.. Boutwell, which brought
| into view the common law OF Maryland as adopted
by Congress for the government OF domestic and Or
binary affairs Of the people OF this District. IL cannot
! be supposed that the President OF the United
States in determining whathis powers and duties were
In regard to giving Office, should have looked into
| the common law Of the District Of Columbia, be-
cause the offices are exercised in the District. On
us see what the evidence is There was no prepare
ton or application OF force. 1t was no threat Of
| there was no expectation of force. For he
expected and desired nothing NmOre and moth
ing e 81 than nat by TIN the peaceful and regular
surrendered If disappointed in that, all that the
President desired or expected was that that legal
basis thus furnished by his official action there should
be an opportunity for taking the Judgment of court
| of law. Now, there seems to be left nothing but
those articles which relate to the al interim APP
| pontment Of General Thomas and to the removal of
| Mr.. Stanton. l will consider the al interim APP
| pontment first, leaving it to be assumed for the
purpose Of examining the possible crime that
| the Office had been vacated and open
to the action of the President. If the office vas full
then there would be no appointment by the authority
| OF the President or otherwise and the whole action
of the President was manifestly based on the idea
| appointment could possibly be made was in
| tended to take effect The letter of appointment or
authority as il IS called in the articles, accom-,
panied the order of removal, and was of
| course secondary to the order of removal. Gene
| raj Thomas was ordered to take up the duties
OF the Office and discharge them If the Secretary of
| War should leave the Office in need OF such tenn
porary charge. Now think that the only subject
we have to consider before look ut the law gov
erning ad interim appointments, is suggestion
| as to any difference between al interim appoint
mcnts during the session of the Senate and
during the recess. The honorable Managers,
| perhaps all OF them, but certainly the honorable
| Manager (Mr. BoutwelD, here conlended that the
| practice of the government regard TO removals
| from 0ce covered only the case OF removals during
the recess of the Senate. IL will be part OF my duty
ana labor, when come to consider definitely the
question OF the removal of Mr. stanton, to consider
| that point; but for the purpose of Mr. Thomas APP
| pointncnt no such discrimination needs to he made
| The question of the right Of the Executive to
Vacatc an Office, as TO be Disseminated between the
recess Of the Senate and It's session, arises out Of the
constitutional distinction that is taken, TO witthat
the President only fill offices during the session
by the advice aud consent OF the senate, and tnat
| he can during the recess commission by authority TO
expire with the next session. But al jtefil appoint
mens do not rest upon the constitution at all They
are not regarded, they have never been regarded
an exercise Of the appointing power in the sense of
Cling an office. They are regarded Us falling within
either Tie executive or The legislative department of
providing for the management OF the duties OF an
once before al appointment Is or can properly
be made. Now, IN The absence or legislation II must
be said that that power belonged to .he Executive.
That part of his duty was, when ne that
accident had vacated an Office that necessity
CURED the removal of an incumbent 10 see that the
| laws should be executed, ana to provide tha1 the
public service should be Temporarily taken up and
| carried on. 1t might be fairly determined
constitution had provided rule and which the
legislation of Congress might occupy. As early,
therefore, 1892 provision was made Tor temporary
occupation Of an ONCE. The act Of 1892 regulating
three Of the departments provided that temporary
absences aya disabilities OF heads of departments
might he met by appointment OF a temporary char
acter to take charge of the Offices. The of 1895
provided that In case of vacancy in an office there
would not require him to Ill the oticc by the consul
| tation method, but temporarily to provide for the
discharge OF its duties Before considering the act
OF 1858, which, in TERMS covers to a certain extent
but not fully both OF these points, wish to ask your
attention to some circumstances In regard to the
that The eighth section of the act of 1902
provides for the filing, temporarily, OF vacancies.
In January, 1853 tbs President to Congress this
message ana Senators viii perceive that il relates
TO this particular snbcct:'I submit TO Congress the
expediency Of extending other departments Of the
government The authority conferred on the President
by the eighth section Of the act OF May 49, 1892, to
| appoint person temporarily to discharge the the
Treasury and Secretary Of war, In case OF DEATH
absence from the seat of government or sickness
That IL To say, the temporary disability provision OF
the act OF 1868 which covered all the departments
then IN existence, had never been EXTENDED by law
10 cover the other departments, and the President
desired TO have that act extended. This message
having been referred 10 the Judiciary Com
mittee, the Hon. senator from Illinois (Mr.
TrumbulD chairman Of that committee made
I believe very brief report in which lie says.
There have been several statutes on the subject,
and as the law now exists the President has auihO
rty temporarily III the Offices OF Secretary OF
State and Secretary Of War from one of the other de-
partments, by calling ON somebody to discharge the
duties. That other department was the Treasury
We have received communication from the
President of the United States asking that the
law may he extended 10 the other executive
departments Of the government, which seems TO he
proper. And we have framed bill covering all of
those cases, tnat whenever there IL removal the
President may temporarily devolve the ONCE upon
another Cabinet officer and appoint the chief officer
OF the department for the time being. There does
not seem to have been brought to the notice OF the
Senate OF the honorable senator the act Of 1795
Nothing is said of 1t, and Il would appear AS If the
ceedcd upon the proposition OF extending the
act Of 1892 OF disabilities and not OF vacancies,
cept that the honorable Senator uses the phrase
vacancy" and that he speaks Of having provided
for the occasions that might arise Now, the act of
1893 does not cover the case Of vacancies except by
resignation II does add TO the disability which the
President had referred to-the case Of the resig-
nation which he did not ask TO have covered
.,lu which ulu not nccu 70 ne covered.
by new legislation, because the law OF 1875
covered 10. But this OF 1865 does not all the
OF vacancy. IL does not cover cases Of vacancy
by removal, and IL does not cover case Of expira-
ton of onlce. which ~ case OF vacancy. Now.
under hat additional light IL seems as n the only
question presented Of guilt the part Of the Presi
dent in respect to the appointment 10 once ~ IN
teliit was u question OF the final law. The Seua-
tors VIII remark the very limited form
In which that question arises. II is not pretended
that appointment ~ General Thomas II the oflcc
was vacant. a violation Of the tivfl Tenure act,
nff he
articles hccausc an examination Of the articles
shows that the ony appointment the infringement
OF which IL made penal IL the appointment
under this provision of that act aud as was pointed
out by nv colleague. Mr. Curtis, which seems Ia he
q subject OF argument on the other side, that APP
pontncnt prOh.b ting, or attempting 10 pro-
hibt relates TO the infractOn OF that act, IL an
attempt % an the Offices. ] believe that 10
be sound construction OF the laws. Very