The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-05-27

or INDIANA.
The Removal of stanton.
Mr.. EDrroR,-I am glad to see that "Y"
unlike "X" does not shrink from attacking
Mr.. Fessenden's main position though in so
doing no doubt he shows more zeal than dis
cretion. 1t was much safer to adopt General
Buffers plan before Fort Fisher and explode
powder ships at safe distance instead of as
sauting the work directly. The substance of
"Y's" argument is that the civil tenure act
was intended to cover Mr.. Stantons case,
and therefore must be presumed to have af-
fected it in some way; that il must accord
ingly be supposed that Mr.. Stanton was in
certain sense appointed by Mr.. Johnson in
order to bring him under the operation of the
law; and that any other supposition involves
the absurdity OF terminating Mr.. Stanton's
tenure ON the 4th of April, 1865, since which
time he would have held his office contrary
to law. l emit here all "Y" says about the
Presidents power of removal under the con-
stitution, because although Madison in 1888
expressed an opinion that a President might
be impeached for removals without cause, the
settled practice of the government for three
quarters of a century has left to the Execu-
tive power OF removal absolutely unlimited
before the passage OF the civil tenure bill. If
the removal of Stanton was not a violation of
that act then it was not misdemeanor If
it had not been supposed to be violation of
that act the President would not have been
arraisned before the Senate.
The civil tenure bill was step in the right
direction. 1t was intended to limit the in
tolerable abuse of the power OF removal for
corrupt political purposes by the very meth
cd pointed out by Chief Justice Story, "by
the-simple expedient of requiring the consent
OF the Senate" 1t was not intended to cover
Mr.. Stanton's case alone, so far as the
Senate was concerned. The Senate excepted
Cabinet officers from the scope of the BILL
The House insisted on including them. The
Senate by a vote of % to II refused to con-
eur. Committees of conference were ap-
pointed. The Senate committee reported
the provso to the first section as it stands,
recommending its adoption because il was
"immateriap and its rejection would hazard
the loss OF the measure.
Both Mr. Williams and Mr.. Sherman from
the committee OF conference rejected the idea
that the proviso was intended to affect the
tenure ofany member of Mr.. Johnscns Cab
met. 1t was upon this assurance that the
Senate passed the bill, not as a temporary
measure designed to hamper a particular
President but as a measure of permanent re-
form.
1t appears then that the House intended to
protect Secretary Stanton and the Senate did
not. The argument from the intent of the
lawmakers, never very safe, breaks down
altogether in this case. We must interpret
the law without any such aid. "Y" con-
cedes that the language of the law does rot
protect Secretary appointed by Mr.. Lin
coin during his first tenn to the close OF his
second. 1t provides simply that the Secre-
taries shall hold their offices "for and during
the term of the President by whom they may
have been appointed, AMI for one month
thereafter. MIR. Stanton was appointed by
Mr. Lincoln during his first term. If zap
pointment" is to be taken in its ordinary
sense, it is plain that the proviso does not COW
er him. But ''Y" thinks that as Mr. Stan
ton, holding under a commission running at
the pleasure of" the President for the time
being" was not removed on Mr.. Johnson's
accession, the fact may by liberal construc-
| tion be taken tor kind of appointment.
This will not do. What constitutes an ap-
pointment was long ago considered in the
famous case of "Marbury v. Madison" report
ed in Cranch 1877. An appointment, it was
then held is final and complete, when the
commission is signed by the President Here
is the language OF the court:
The last act to be done by the President the sig
nature OF the commission. He has then acted the
advice and consent of the Senate to his own nomina-
ton. The time for deliberation has then passed.
lie mas Decided Ills Judgment on the advice and
consent OF the Senate concurring with his nomina-
| lion has been made and the officer is appointed.
Mr.. Stanton's appointment was according
ly coDsummated when MIR. Lincoln during
his first term signed the commission. Under
that commission he still holds, and by its
terms he is subject to removal by the Presi-
dent for the time being.
The civil tenure act of course has no retro
active effect to annul this commission. If it
had Mr. Stanton muct hayn 70
ercise the duties of his office until a successor
| was appointed. But it could have no such
| effect. A law passed on the I'd of March,
| 1867, could not invalidate the acts of Mr..
| Stanton as Secretary of War for period of
| two years before its passage. Congress is
competent to abolish certain offices, and may
| thus indirectly get rid of the incumbents.
| but leaving the offices untouched Congress
can by no act of legislation vacate a commits
sion and remove an officer 1t was question
before the first Congress whether the power
of removal belonged TO thelPresident alone or
to the President and Senate jointly, but no
body ever dreamed that such power could be
| exercised by the two houses of Congress. Ex-
| cept "Y." He says, "Mr. Fessenden admits
the act reached Mr.. Stanton's case, and il
either terminated his Office on its passage
or extends its tenure till one month after
johnson shall cease to be President" Mr..
/ fCooCuuCI lushCS lO SUCH duIDlSSlOH, IL Is
| absurd to say that an act of Congress re-
mOred Mr.. Stanton; and it did hot extend
his tenure unless he was appointed by Mr..
johnson. Notoriously he was not so ap-
| pointed.
The question is purely question of law
| 1t has been so treated by the Republican Sen
ators. The prosecution has broken down
There is the simple history of the matter
The Republican party never appeared better
| than in this transaction. Believing that the
President is a bad and dangerous man, be-
ieving that he had been Grading the laws
| from day to day, Congress seized promptly
upon the first opportunity to put him on his
trial The country believed him guilty
Thrty-ive Senators confirmed the general
impression. Nevertheless seven Republicans
differed from their friends, resisted the
temptation to yield 20 the popular desire, re-
sisted their own strong inclination, believing
that the supremacy of law is better worth
vindicating than the policy of party, and
voted on their oaths Tor acquittal. | do not
call in question the motives of the thirty-five
but say the path of duty was comparativel,
easy for them: and l say tina: in the history
of the Republican party nothing has beer
more noble than the dignity and selt-respect
! with which as body it has met this disap
pointment. individuals have raved and torn
their hair, and shivered in view OF the terri
Dle exploits to be expected from the Presiden
tlal buSbear, but the great majority have
| stood hrm, regretlul but without anger, ant
nave honored themselves by an exhibition o.
liberation such as has rarely been shown by
| political parties, such as could have been eX
pected only from party which has always
valued justice more than temporary success
| H.