Middletown transcript., 1868-02-29

oech appointeu Dy myself. AS to him, this lay
gives him no tenure Of Office.
The members of my cabinet. who have bee
appointed by me, are by this act entitled TO hol
for one month after the term Of my Office shal
cease but Mr.. Stanton could not, against tn
WISHES OF my successor, hold moment thereafter
Y he were permitted BY that successor to hold 70
the first two weeks, would that successor have NJ
power to remove him But the power of m,
successor over him could be no greater than m,
own. my successor would have the power /,
remove Mr.. Stanton after permitting him to re
main a period of two weeks because he was no
appointed by him, but BY his predecessor. /, VIII,
have tolerated Mr.. Stanton for more than f,y,
years, certainly have the same right to remoy,
him, and upon the same ground, namely, that h,
was not appointed by me- but by my predecessor
Under this construction Of the tenure-of.offic,
act have never doubted my power 10 renroys
Mr.. Stanton. Whether the act was constitutions
or NOT, It was always my opinion that it did no
secure him from removal. Twas, however. nwar,
that there were doubts as to the construction O
the law, and from the first deemed it desirabl,
that at the earliest possible moment those doubt,
should be settled, and the true construction o.
the act fixed by the decision Of the Supreme Court
Of the United States. My order of suspension,
IN August last, was intended to place the case in
sucha position us wouid make a resort to a judi.
cal decision both necessary and proper. NV un.
derstanding and wishes, however, under that
order OF suspension, were frustrated and the late
order for Mr.. .Stanton's removal was a further
step towards the accomplishment of that purpose.
repeat that my own convictions as to the true
construction of the law, and as to its constitu-
tionality, were well settled and were sustained
by every member Of my cabinet jncludinp M
Stanton himself. Upon the question of constit,i-
honality each one in turn deliberately advised
me that the tenure-of-ofice act was unconstit,l-
honal. Upon the question whether as to those
aEaEu utHsttA xxfos.a .4a1l Il &.
that act took from me the power to remove them.
one of those members emphatically stated, in the
presence OF the Others sitting in cabinet that they
did not come within the provisions Of the act
and 1t was no protection to them; no one dissent
ed from this construction, and understood them
all to acquiesce in its correctness. =, ..sl -
In a matter OF such grave consequence was
not disposed to rest upon my own opinions, tho
fortified by my constitutional advisers. / have
therefore sought TO bring the question at as early
day as possible before the Supreme Court of the
United States for final and authoritative decision
In respect to so much of the resolution as relates
to the designation Of an officer to ct us Secretary
OF War ad interim, have only to say that / have
exercised this power under the proyisions of the
first section of the act of February 49, l795 which
so far as they are applicable TO vacancies caused
by removals, understand to be still in force.
The legislation upon the subject of ad interim
appointments in the executive departments stands
as 10 the War Office as follows: ''f
The second section of the act of the 18th of An
gust 1883, makes provision for vacancy in the
very case of a removal of the head of The War
Department. and upon such 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, 1872, section g. it is provided that in
case OF vacancy occasioned by death, absence
from the seat of government, or sickness of the
mead OF the War Department. the President NAV
70 N uNo.-1 A. A. Id
oince until q successor is appointed or the disa-
bility removed. -. -
The act, 1t will be observed, does not provide
or the case of a vacancy caused by removal.
Then by the first section Of the act Of Feb,uarv
18th, 1898, il is provided that in case of any va
'ancy the President may appoint person to
perform pertorm the duties while the vacancy exists
l Ihese acts are followed by that of the goth of
February, 1868, by the first section of which pro-
Vision is again made for % vacancy caused by
ieathi resignation, absence from the seat of gov
or sickness of the head of any executive
department. Of the government; and upon the oc-
'urence oil such vacancy, poweris given to the
resident to authorize the head of any other ex-
cutiye department, or any officer in either of
aid departments whose appointment is vested n
he President, at his discretion, to perform the
iutles OF the said respective offices until success
or be appointed, or until such absence of inabil-
ty by sickness shall cease; provided that no one
acancy shall be supplied in manner aforesaid for
longer period than six months f,"1
This law, with some notifications. re-enacts |
he acts of 1892 and provides, as did that act for
he sort OF vacancies SO TO be filed but, like the
ct OF 1899, it makes no provision for a vacancy |
ccasioned by removal. II has reference alto
ether to vacancies arising from other canses
According to my construction of the act of 1863.
fhile It implicitly repeals the act of l7s2 reeu-
lung tne vacancies therein described, it has no
caring whatever upon so much of the act of
1856 as applies to avacahey caused by removal
he act of, 1885, therefore, furnishes the rule for
vacancy occasioned by removal-one of the va
ances expressly referred to in the act of the TN
August 1889, creating the department of war,
Certainly there is no express repeal by the act
1853 of the act of 1895. The repeal, If there il
N.Y. is by implication, and can only be admitted
far as there is a clear inconsistency between
ne acts The act Of 1895 is inconsistent with
hat OF 1853 as to vacancy occasioned by death,
absence or sickness but not at ali
1consistent as to to vacancy caused by removal. |
1t is assuredly proper that the President should
ave the same power to I'll temporarily a yacan-
y occasioned by removal as he has to suppIy n
lace made vacant; by death or expiration of
arm. II, for instance, the incumbent of an Office
hould be found to be wholly unfit TO exercise ;ts |
motions, and the public service should reonire
is immediate expulsion, a remedy should exist
nd be at once applied and time be allowed the
resident to select and appoint successor, as is
erinitted him in case of vacancy caused by |
cath or the termination Of an official term.
The necessity, therefore, for an ad interim ap-
ointment is just as great, and, indeed, may be
reater, in case Of removal than in any Others.
efore it be held, therefore, that the power given
y the act of l795 in case of removal is abroeated
y succeeding legislation, an express repeal ought
J. appear So wholesome a power should GER
'inly not be taken away by loose implication.
may be, however, that in this, as in other cases
implied repeal doubts may arise. It is COM
ssediy one of the most subtle and debatable
nestions which arise in the construction of stat
ties.
Ii upon such a question have fallen into an
construction, j submit whether IL
1ould be characterized as a violation of official
uty and of law. have deemed it proper. in
indication Of the course which have considered
my duty to take, to place before the Senate the
'asons upon which have basedimy action!
Although have been advised by every mem.
er of my cabinent at the entire tenure-of-ofiice
u is unconstitutional and therefore void. and
though have expressly concurred in that
pininion in the veto message which / had the
onor to submit to Congress when returned the
u f2r reconsideration, l have refrained from
aking removal of any officer contrary, IN the