The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1868-05-29

| freely choose his advisers (subject onl,
to Senatorial confirmation but If rec
lected he is not bound to keep them moi
can he in any case impose them upol
his successor. The law only binds hin
to retain them (when once chosen) dur
ing the term or remainder of the tern
in which they are selected, and ther
they retire.
But this evident policy of the law Is
in fiat contradiction of the argument
which places Mr.. Stanton's case with.
in the body of the section and assigns
to him tenure of indefinite. duration il
the future. No future President (any
more than the present one in case of his
re -election) could shake offthis Secreta
ry, without the consent of the Senate, ii
this argument be sound.
Not one word was uttered in either
House of Congress when the act was
passed indicating that the Lincoln Sec
retaries were included, or intended to
be included, in the body of the first Sec
tion; but most explicit statement was
made by Senator Sherman without dis
sent from any quarter) that they were
excluded from the protection of the act
and would remain subject to removal
by the President.
1t i3 charged in the first article of
lmpt achment as an ingredient of the
ofiense therein alleged to have been
committed by the President, or as a se-
rious aggravation thereof, that the or.
der for the removal of Mr.. Stanton was
issued during a session of the Senate
and without Senatorial advice and con.
sent. This particular accusation was
supposed by many in the outset of this
controversy to be unanswerable. But
it possesses no Importance whatever.
For neither the Constitutional argu-
ment for executive power to make re-
movals from Office, nor the act of II 80
organizing the War Department, nor
any other former statute relating to re-
movals, nor the practice of the Govern
ment, recognizes any distinction of
time lin making removalsl between
session and recess. The President in
all cases where he is authorized to re-
move an officer, may remove him dur
ing session of the Senate us well as in
a recess between sessions, for aught that
appears in the Constitutional reasoning
in the legislation or in tho practice OF
the past,
Prior to 1867 all removals were to be
made by the President upon his own re-
sponsibility, without Senatorial advice
or consent. Whether the Senate was
in session or not when a removal was
made was, therefore, wholly immater-
ial to his exercise of his power. The
presence Of the Senate was of import.
ance only when a new and complete
appointment was to be made to fill va.
cancy whether produced by removal
or other cause.
Upon the whole we must come to tn,
conclusion, that if Mr.. Stanton hold.
under the Tenure Of Office act, he can.
not be removed either in session or in
recess without the consent of the Sen
ate ; but if he does not hold under tha
act then under the prior laws and prac-
tice of the Government, he may be re.
moved by the President at any time
In either case the charge that he wa.
removed during session of the Senate
is unimportant if not absurd.
The orderfor the removal of Mr.. Stan
ton was ineXact conformity with tn
precedent inthc case of Timothy Picker
ing, Secretary of State, who was re
moved fromotlice by President Adam
on the 18th of May 1900.
The first sessionof the sixth Congress!
began December 2nd, 1899, and endet
Mayl4th 1900. Trial, p. 595.) The remov
al was therefore during Il session of the
Senate. On Saturday May 10th Presi-
dent Adams wrote to Mr.. Pi ckerinl
requesting him to resign and stating hi
desire for an answer to his comm unica
tion son or before Monday morning, be
cause the nomination of u successor
must be sent to the Senate as soon ~
they should sit.' This last remark was
obviously made with reference to the
adjournment of Congress; for by Reso-
luton of the 2lst of April the two
Houses had agreed to adjourn the session
on Monday May 18th and a Resolution
of the Senate to extend the session
the nth had just been rejected by
the House. t3 Senate JOm1idi, II, rs, 81.
1t was necessary therefore that n nomi.
nation of "A successor should be sent Ia
the Senate "as soon us they should sit"
on Monday, in order to confirmation be.
fore the final adjournment Of the secs
ion.
Mr.. Pickering's answer, refusing t.
resign, is dated on Monday the 10Th, an'
it is Il fair If not inevitable conclusion
from the facts known to us, that it wa
sent to the President on the morning o
that day. For the President had reques
ted that the answer should be sent tc
him on or before that morning and h,
took action upon the answer which in
dicates that he received ii at that time
He issued an order dated the 18th per
emptorily discharging Mr.. Pickering
from further service rs Secretary o
State, and as soon as the Senate met, ol
the same day, sent to it a message nomi
mating "John Marshall of Virginia t,
be Secretary Of State in place Of Tim
othy Pickering, removed" Trial PIP
1856, 357.)
On May ~, II Resolution passed botl
Houses extending the session to the lith
(3 Senate Journal, 92, "a, and ON Tues
day, the 18th the Senate in Executiv,
session confirmed the nomination q
Judge Marshall rs Secretary of Stat,
Trial, p. 359.l
1t is clear then, that Mr.. Pickerin
was removed during n session of Coz
gress and of the Senate; that he was n
moved before n nomination of his su,
cessor was transmitted to the Senat,