Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1868-03-04

mitted by that successor to hold for the first
two weeks would that successor have nc
power to remove him? But the power OF
my successor over him could be no greater
than my own. If my successor would have
the power to remove Mr.. Stanton after per
mitting him to remain period of two weeks
because he was not appointed by him his pre-
decessOr. |, who have tolerated Mr.. Stanton
for more than two years, certainly have the
same right to remove him, and upon the
sound ground named, that he was not ap-
pointed by me, but my predecessor. Under
this construction of the tenure of Office act
[ have never doubted my power to remove
! Mr.. Stanton. Whether the act consti-
tutiOnal or not, it always my opinion
that it did not secure him from removal.
was aware, however. that there were doubts
as to the construction of the law, and from
! the first | deemed it desirable that at the
earliest possible moment these doubts should
/ be settled. and the true construction Of the
act fixed by the decision of the Supreme
| Court of the United States. Ny order OF
suspension in August last was intended to
place the case in such position would
make resort to judicial decision, both
necessary and proper. My understanding
and wishes, however, under that order OF
suspension were frustrated, and the late
order for Mr.. Stanton removal was a
/ further step toward the accomplishment OF
that purpose. | repeat that my own cOnvic-
| tiOns as to the true construction of the law,
and as to the constitutionolitv, were well
settled. and were susta ined by every member
! of my Cabinet, including Mr.. Stanton him
! self. Upon the question of consttutionaltv
each one in turn deliberately advised me that
the Tenure of Office act was unconstitutional.
The President then quotes law of Con-
gress passed in 1795, which provides in case
of any vacancy the President may appoint 4
person to perform the duties of the office
while the vacancy exists, and Mr.. johnson
thinks this law is still in force and that it
authorized him to appoint Gen. Thomas
Secretary ad Interim But as there is some
question whether the act of 1875 was not
repealed by an act OF 1868, the President
argues that point as follows
These acts are followed by that of the Goth
Of February, 1868, by the first section of
which provision is again made for a vacancy
caused by death. resignation, absence from
the Seat of Government, or sickness of the
head Of any Executive Department, and
upon the occurrence OF such vacancy power
is given 70 the President to authorize the
head Of any other Executive Department, or
other officer in either of said Departments.
whose appointment is vested IN the President.
at bis discretion, to perform the duties Of
the said respective officers until a successor
be appointed, until sEch absence or in
ability by sickness shall close, provided that
10 one vacancy snail be supplied in the man
ner aforesaid for a longer term than six
months This law, with some notifications.
reenacts the act of 1892, and provides, IL
Ind that act, for the sort Of vacancies to he
filled hut like the act Of 1872. 1t makes no
provision for vacancy occasioned by re
mOvals 1t has reference altogether to va
-ancies arising from other causes. Accord
ing to nv construction of the act of 1868.
while it implicitly repeats the act of l192
regulating the vacancies therein described.
it has no bearing whatever upon so much of
the act OF 1875 as applies Il a vacancy
caused by removal The act Of i795. there
fore, furnishes the rule for vacancy oc-
casiOned by Il remOvsl-One of the vacancies
expressly referred to in the act Of the tn Of
August. l7S9, creating the Department OF
War. Certain Y there Is no express repeal
bg the act of 1863 of the act of 1875. The
repeal, if there is any, Is by implication. and
can only be admitted 80 far as there is clear
inconsistency between the two acts. The act OF
1875 is inconsistent with that Of 1863 AZ to
Il vacancy Occasioned by death, res gnati0n.
absence or sickness, but not at all inc0n-
-istent as t. vacancy caused by removal.
1t is assuredly proper that the President
should have the same power u Till Temporal
rily a vacancy caused by removal as hc has
u supply place made vacant by death or
she expiration of term. IT, for instance,
the incumbent of an office should he found
wholly unfit TO exercise its functions, and
the public service should require his immedi
ate expulsion, a remedy should exist and be
at once applied aud time be allowed the
President to select and appoint a successor,
as is permitted him in case Of a vacancy
caused by the death or the termination of
an official term.
TIE necessity, therefore, for an al inf'riD
appointment is just as great and, indeed.
may be greater in case OF removals than il
anv others Before it be held, therefore
that the power given by the act of i795 in
case of removal Il abrogated by succeeding
! legislation. an express repeal ought to appear
50 wholesome power should certainly not he
taken away by loose implication. 1t may be-
! however, that in this, as IN other cases OF
! implied repeal. doubts may arise. 1t is con
| fessedly one Of the subtitle and dehatable ques-
! tions which arise in the construction Of
statutes. If, upon such question, | have
1 fallen into an erroneous construction, | sub
NIT whether it should be characterized as a
! violation of official duty and of law.
The message concludes by an asseveration
Of Mr.. Johnson's s honesty, and the expression
of desire that the question may be su bmit-
! ted to he courts for decision