Prescott journal. [volume] (Prescott, Wis.) 1861-1871, 1868-03-07

beyond one month after the accession of
his successor. In the case of MIR. stanton,
the only appointment under which he held
the office OF Secretary of War was that con-
ferred upon him by immediate predecessor
with the advice and consent of the Senate.
He has never held from me any appointment
as the head of the War Department. What
ever right he had to hold the Office wss
derived from that original ap-
pointment and nv own sufferance.
The law was not intr Odueed 10 protect such an
incumbent of the War Department by taking
from the president the power to remove him.
This, in my judgment. is perfectly clear, as the
law itself admits of no other construction. We
fnd in all that portion of the section which
precedes the proviso that, as to civil officers
generally, the president is deprived of the power
OF removal, and it is plain that if there had
been no proviso that power would just as clearly
have been taken from him, so far as It applies
to the seven heads OF the departments, but for
reasons which were nOidoubt satisfactory to Con
gress, the principal officers were specially pro-
vided for. AS 20 them, the express and onlyre
quirement Is that the president who has ape
pointed them shall not, without the advice and
consent of the Senate, remove them from
ofhce. The consequence is, that, as to my Cabi-
net embracing the officers designa ted in the first
section, the act takes from me the power, with
out the concurrence of the Senate, to remove
any one OF them have appointed but IL does
protect such Of them as did not appoint nor
give TO them any tenure of Office beyond my
pleasure.
An examination of this Act, then, shows that
while in one part of the section provision is
made for officers generally, in another clause
there is class OF officers designated by their
titles, who are exempted from the general terms
of the law, and in reference to whom a clear
distinction is made as to the general power Of
removal limited in the first clause of the section.
This distinction is that as to such of these emu
a La. L,11 4 Al.
OF the president, the power of removal can only
be exercised by him with the consent of the
Senate, while to those who have not been ap-
pointed by him there is no like denial OF his
power to displace them. It would be viola
ton of The plain meaning of this enactment to
place Mr.. stanton upon the same footing as
those heads of departments who have been APP
pointed by myself As to him this law gives
bin no tenure of office. The members of my
Cabinet who have been appointed by him are by
this act entitled to hold for one month sitter the
term of my Office shall cease, but Mr.. Stanton
successor, hold a moment thereafter.
If he were permitted by that successor 60 hold
for the first two weeks, would that successor
have no power to remove him But the power
of my successor over him would be no greater
than my Owa. If my successor would have he
power TO remove Mr.. Stanton after permitting
him to remain period OftWo weeks because b.
was not appointed by him or by his prede eessor
/, who have tolerated Mr.. Stantoa more than
two years certainly have the same right to
remove him and upOl the same ground, namely,
that he was not appointed by me but by my
predecessor.
Under this construction of the tenure of office
act L never doubted my power to remove him,
whether the act was constitutional or nor. was
always OF the opinion that it did not secure
him from removal. was aware, however, that
there were doubts as to the constr uctiOn of the
law, add from the first daemsd it desirable
that at the earliest possible moment these
doubts should be settled, and the true cOnstIuc.
tion IF the act fixed by decision of the Supreme
Court of the United States Ms order of sus-
pension in August last, was intended to place
the case in such position as wou'd make a re-
sort to judicial decision both necessary and
proper. My understanding and wishes how
ever, under the order of suspension Were frus-
trated and the late order of Mr.. st nton's re-
moval was further step towards the accom-
plshment of that purpose
repeat that my own conviction as to the
true construction of the law and as to the con-
were well settled, and were sus
tanned by evsry member Of my Cabi ct, in-
Guiding Stanton himself Upon the question
of eonstitutionility each one in turn
advised me that the ten
ure of Office act was unconsti utional
upon the question whether as to TIA ose men,
beTs who were appointed by my pIedect ssOr
that act took from me the power TO remove
them. One of those members said emphst-
ically, in the presence of the others sitting
in Cabinet, that they did not come within
the provisions of the act. and it was no pro-
lection TO them. No one dissented from this
and | understood them all to
acquieece in its correctness IN matter OF
such grave consequence.
1 was not disposed to rest upon my own
opinions, though fortified by my cOnstitu-
tiOnal advisers. / have therefore sought to
bring the question at as early day as p6esi-
Bile, before the Supreme Cont of the United
States for final and authorit alive discussion.
In respect to so much of the resolution as
relates to the degradation of an officer to act
as Secretary of War Gd interim, 1 have only
to say that 1 have exercised this power under
the provisions of the first section OF the act
of February 18th, 1895, which so Ear as they
are applicable to vacancy caused by removal,
L understand to be still in force. The legis
lati0n ON the subject of adj interim appoint
ment in the Executive Departments stands,
as to the War office, as follows:
The section of the act of the 9th of August,
1889, made no provision for vacancy In the
very case OF removal OF the head OF the
War Department, and upon such a vacancy
gives the charge and custody of the records, |
books and papers to the chief clerk. Next,
by the act of the Sth of May, 1892, section 8, |
it is provided that in case OF vacancy Occa-
stoned by death, absence from the seat of
government. of sickness, of the head of
authorize person to perform the duties of
the Office until successor is appointed, or
the disability removed. The act, it will be |
observed, does not provide for the case Of n
vacancy caused oy removal then. BY the |
first section of the act of February I3ta, |
1895, it 10 provided that in case of any va |
cancy the President may appoint person to |
perform the duties while the vacancy exists, |
and those acts are followed by that OF
the goth of February, 1858. by the
-
made for vacancy caused by death, resig- |
nation, absence from the seat of government
or sickness OF the head of any executive de-
partment, is upon the occurrence of such a
vacancy, power Is given to the President to
authorize the head of any other executive
department or other officers in either oil said
departments whose appointment is vested in
the President, at his discretion, to perform
the duties of the said respective officers un-
til q successor be appointed, or euch absence
or inability by sickness shall cease provided
that no one vacancy shall be supplied 10
the manner aforesaid for a longer period
than six month";; this law, with some modifi-
cations, re-enacts the act OF 1897, and pro-
vides as did that act, for the sort of vacan-
cies to be filled, but, like the act OF 1884, il
makes no provision for a vacancy occssioned
by removal. It has reference altogether to
vacancies arising from other CAUSES. Accord
ing to my construction of the act of 1853,
while 1t imphedly repeats the act of
1892, regulating the vacancies therein
described, it has no bearing whatever on
so much of the act of 1895 as applies
to vacancies caused by removal. The
act of 1895 furnishes the rule for vacancy
oecasioned by removal, one of the vacancies
expressly referred to in the act OF the 9TH OF
August. 1885, creating the Department OF
War, and certainly there is no express repeal
by the act of 1868. or the act of 1875. the
repeal, if there is any, is by imphca-
ton, and can only be admitted so far
as there is clear inconsistency between the two
acts. The act of 1895 is inconsistent with that
of 1919 as IN n vacancy accustomed nv death