The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-05-02

the President.n All OF them, without reference to
movable by the independent action OF the President.
The acts OF Congress creating the offices OF Secrea-
res Of State, Of War and or the Navy expressly re.
pleasure The acts OF Congress creating the four
other heads Of departments place them on the same
In this particular in full force This Tenure Of ONCE
act introduces distinction, made applicable to CaD
Cvss To- Sase V The Presdent
the time being new tenure It secures them from
removal at his pleasure alone It repeats, as to them
the existing laws and declares that they shall there
after be entitled to hold during the remainder OF
the term OF the President by whom they were ap-
pointed, and for one month after the succeeding
act OF the President and only subject to removal oy
the concurrent act OF the President and Senate BUT
II gives them right to hold against the pleasure OF
the succeeding President one moment after the ex.
piratOn OF that punctuai time OF one month. When
their ofces become vacant the policy here declar-
ed Is unmistakable-that Notwithstanding anything
to the contrary in the act every President snail nave
ton of the members OF his Cabinet. The
right OF selection for himself Is however, qualified
He may not heretofore, enjoy the right throughout
his term For the first month he must take the Cabi
net OF his predecessor, however opposed to him In
opinion or obnoxious to nun personally; Inen 700,
but once. II Is power that does not survive but
expires with single execution Now as to the three
own exercise Of this independent power, he having
as to them, once exercised the power, It 49, as to
consequence
three Officers no longer remain subject to his pleasure
alone. They entitled to hold In defiance OF his
wishes, throughout the remainder OF his term, be-
cause they arehis selected officers; but they are
not entitled to hold during the whole term OF his
successor, but only for modicum Of that
by that successor. So much for these three. Now,
as the other four, as to whom Mr.. Johnson has not
ment. Nav they hold during the residue Of his term
in defiance Of his wishesS DO they come within that
clear policy OF giving to every President one oppor
choices Surely not. Then, IT. as to them, he has no
right how can he exercise it, IT, as in the case Of Mr.
stanton the Cabinet oceT holds on after ne mas
President to avail himself Of his own independent
right when such an officer refuses to re,
until he has put. the other out. SO that the indie
tions' be exercised at all Without the corresponding
right Of removal and the one necessarily Implies
the other. We have seen that the tenure Of office
to those members of Mr.. JOhnson's Cabinet APP
pointed by himself It, therefore, does not apply to
which applies to Mr.. Stanton it must be the first
general clause, and II that does not apply to him
then his case does not come within the purview OF
the act at ALL but must be ruled by the pre-eXistng
laws which made him subject at all times
to the pleasure of the President and to the exercise
of his Independent power Of removal. And this is
precisely what is claimed by the Managers They
maintain that although the prOvlsO does not give
Mr.. stanton new tenure yet the first general
clause does and that he Is put by that clause on the
same footing Of all other civil officers who at the
date of the act held by the concurrent appointment
''during the pleasure Of the President" But all the
officers intended to be embraced by that first clause,
who held by that tenure before, are declared to hold
removed by the President alone. Whether appointed
by the President for the time being or by his prede
cessOr, they must remain in defiance Of the Pres-
dent until removed by the concurrent action of the
President and the Senate. In effect so far as the
power Of the President Is concerned, they may hold
mr.
Of that clause it follows inevitably that Mr. Johnson
cannot remove HIM. 1t follows as inevitably that no
Mr.. JOhnsOns successor as he now defies Mr..
Johnson He may say to that successor as he
to sa Your Nr rSSt Sner the s
and laws Of the United States, without the
advice and consent of the .Senate.n II the
successor of MIR. Johnson should point him to the
proviso and at the end of the month require him to
leave, his answer according to the Managers, would
run thus:-'That proviso did not fix my tenure of Of
fice 1t did not apply to me, but only to those ap-
pointed by Mr.. johnson. They must go out with the
month; do not. My tenure is fixed by the first
clause, and you cannot get clear OF me without the
advice and consent of the Senate" But IL it be held
that Mr. Stanton did come within the parvew Of the
by the Independent action Of the President
Is forbidden by the act, then we maintain that
such removal IL charged In the articles or made out
It is only in the first article that any charge is
made in reference to Mr. Stanton's removal That
article nowhere alleges that Mr.. Stanton has been
removed either in law or in fact 1t does allege
that on the 2st OF February Stanton was lawfully
entitled to hold said Office Of Secretary for the De-
partment OF war and that on that day the President
'did unawfully and In violation Of the constitution
and laws OF the United States issue an order In wri
ing for the removal Of Edwin NJ stanton from the Of
fee of Secretary for the Department Of War" II Is
the issuance Of this order for removal that Is made
any allegation that it had the effect to work a re-
mOval either in law or in fact On the contrary In
the very next article which is founded on the order
to Thomas which purpOrts to be made after the
order for the removal Of Stanton, II Is alleged that
Stanton still held the Office lawfully, and that not
withstanding the order Of removal to Stanton and
the order to Thomas to act as Secretary Stanton
still held the Office and no vacancy was created or
existed. This Is the tenor of every article that STAN
ton never has been removed, in law or In fact that
there never has been an CUSTER either In law or in
fact, and that there has been at no time vacancy.
The proof shows that Stanton remains In possession
and that his ofical acts continue to be recognized
Now II the order per operated q removal In law, IL
must follow that the order was valid and in con-
formty with the constitution and laws OF the United
States for no order made contrary thereto could take
effect In law III there was removal In law the ex-
ecuiye order which accomplished 1t was valid not
operate removal PEI, sc, and II q removal in fact,
though not in law, might be held sufficient to consti-
proved that under the illegal order an custer
m0val was effected by force or threats the answer to
be given this case IL conclusive No ouster-in fact
no actual or physical removals. proved or
80 much az charged. MI. Stanton has never
to this day been put out OF actual possession.
der was as BEFORE and still holds on. Now we look
in vain through this Tenure OF ONCE act for any
provision forbiddng ~ attempt 70 cause use
such purpose. The sixth section Is the only one on
the subject OF removal, and that provides that
every removal made contrary
to the provisions OF this act shall be
deemed, and In hereby declared, to be high INSIDE
meanor, and Is made punishable by fine not exceed
ing $4,000, or imprisonment not exceeding five
years, or both, at the discretion OF the court. No
latitude OF construction can torture an attempt
to make removal into an actual removal, or
can turn an abortive effort to do q given
thing into an accomplished fact. such a
latitude OF construction could not be allowed when
the rule of construction Is least restricted and least
of all In penal statute where the rule OF construc-
ton Is the most restrictive. II seems a waste OF
words to argue this point further. There Is total
failure OF the case upon the first article on this point
II we had none other And yet this article IL the
head and front OF the entire case. Strike IL out and
all that remains is ''leather and prunea." But,
Senators, II you should be OF opinion that
the Tenure OF ONCE act protected Mr.. stanton,
and that the attempt TO remove him was
equivalent to removal, we next maintain
NJ I'M Droa had a viU tn