The Portland daily press., 1868-05-22

MIR. FeSSendenS reason for not finding the
President guilty on the article referring
to the appointment of Gen. Thomas as Sec.
retary of War ad interim, is based upon a
consideration of several statutes-towt, those
of May Sth, 1872, March 18th, 1895 and Feb.
20th, 1868 He says of the act OF 1902, sec
tion s.:
That section empo wers the President in
case of the death, absence from the seat of
government, and sickness of the Secretaries
OF State, War or the Treasury, or of any of
heer of said Departments whose appontme mt
is not in the head thereof in case he shall
think it necessary, to authorize any person or
persons at his discretion, to perform the du-
ties OF ssid res rective offices until successor
can be appointed or such absence by inability
or sickness may cease"
He then proceeds to say mot quoting the
statute in its literal terms):
By an act approved Feb 18th 1895, chapter
q, to answer to the act before cited, it is pro-
ylded that in case of avacancy in either of the
several Departments of State, War; or. Treas
ury, or any office of either it shall be lawful
for the President in case he shall think it nec-
esSary, to authorize any person or persons at
his discretion to perform the duties of the said
respective offices until q successor be appoint
ed or such vacancy shall be supplied in man
iASh otOiOstiiu .lOI u lOIScI leEul tndu SIX
months.
He quotes in terms the act Of Feb. 20, 1863,
as follows:
That in case of death. -resianation, absence
from, the sent OF government or sickness OF the
head OF any executive Department., or of any
office of either of said Departments, &C., it
shall be lawful for the President to author re
the head of any other executive Department,
or any officer in either of said Departments
whose appointment is vested in the President,
to perform the duties until successor be ap-
pointed, or until such absence or inability
shall cease; Pr0Uided, that no one vacancy
shall be supplied in the manner aforesaid for
longer term than six months.
Now Mr.. Fessenden's position is that by
the act first quoted off 1892 the authority to
appoint ad interim, was limited to cases of
death, absence or sickness, and Mr.. Stanton
being alive, and present and we'll, there was
no authority to appoint Gen. Thomas by vir-
tue of its provisions. But, he says the act of
1895 gives the right to appoint ad interim in
case OF any cacancy-that is to say, in case
of vacancy oceasioned by remov.l; that as
the President had right to remove Mr.
Stanton and did remove him, the1e was ra-
cancy, and this being so, he had right to
supply it by the appointment of Gen. Thorn
as, which he did; thar therefore the Presi.
dents action was legal Ee admits that the
act of 1902 is repealed by that of 1863, and
that the act of 1895 is repealed by that OF
1868 except in respect to vacancies occasioned
by removal and expiration of term.
The act Of 1895 referred TO and relied upon
by Senator Fessenden is in these words:
That in case of vacancy in the office of Sec.
retary of State, Secretary of the Treasury or
OF the Secretary OF the Department of War,
or OF any office OF either of said departments,
whose appointment is not in the head thereof
Uhereby they cannot perform the duties of their
SAID respective offices it shall be lawful for the
President OF the United States, an case he
Shdu htn6 At necessary, to authorize any per-
son or persons at his discretion to perform the
duties of the said respective Offices until q
| successor be appointed or such vacancy Be
| tilled provided that no one vacancy shall be
| supplied IN manner aforesaid fer longer term
| than six months.
1t is pretty certain that Mr.. Fessenden, in
| reading this act must have overlooked the
words whereby they cannot perform the du
ties OF their said respective Offices" or ht
would have referred to them in his syncpsi.
| of the act. 1t will be seen at once that the
only vacancy here referred to and whicl
could be supplied by an ad interim appoint
ment was one of qualified character ant
| not absolute. In the present case the onl,
vacancy that could be filed by the appoint
ment of Gen. Thomas dd intef i'm, would bt
one achereby Mr.. Stanton ''could not perform
| the duties of his said office" himself, the
language necessarily implying that there wa:
| at the time an actual Secretary of War, but
who by reason of his Temporary disability
| (but which might terminate in such way a!
to effect an absolute vacancy was unable [,
| perform the duties of the office at the time
II the words whereby they cannot per
| form the duties of their said respective
| offices" are to have their natural force-in-
deed, if they are not to be SET aside alto
| gether,-Mr. Johnson's conviction, even on
Mr.. Fessenden's premises, was a necessity.
The temporary cause Of the vacancy, as
| sickness, absence or other inability Nigh
cease and then the vacancy would "bt
| filled" by the return OF the Secretary to his
post, or it might become permanent and ther
a successor would be necessary, and so the
closing words of the act of I795 are as fol
lows, 'until successor be appointed or such
vacancy filed" These words are conssten
| with the Interpretation which have given
while the words referred to by m as defin.
ing the character of the vacancy are incon
sistent with any other. X.