Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-02-25

department OF W1, and who, whenever the
said principal officer shall he removed from
office by the President Of the United States, or
in any other case Of vacancy, shall, during such
vacancy, have the charge and custody of all
records books and papers appertaining to the
1t is clear that this act, passed by Congress
many OF whose members participated in the
formation of the Constitution, so far from de-
dying the power Of the President TO remove the
Secretary of War, recognizes il existing in
the Executive alone, without the concurrence
OF the senate or OF any other department of the
Government. Furthermore, this act does not
purport TO confer the power by legislative au-
thority, nor in fact was there any other existing
legislation through which it was bestowed upon
the Executive. The recognition of the power
by this act is therefore complete as a recogni-
ton under the Constitution itself, for there was
no other source or authority from which it could
he derived.
He then quotes the first Section of the civil
tenure act of March ,, 1867, and in reference TO
its concluding proviso says:
"The proyiso that follows proceeds to fix the
term of office of the seven heads Of depart
ments, whose tenure never had been defined
before, by prescribing that they shall hold their
offices respectively for and during the term OF
the President by whom they may have been
appointed, and for one month thereafter, sub
ject to removal by and with the ad vice and
consent of the Senate Thus. as TO these emu
merated officers, the precise takes from the
President the power OF removal, except with
the advice and consent of the Senate. BY it's
terms, however, before he can be deprived of
the power TO displace them, il must appear that
he himself has appointed them. 1t is only in
that case that they have any tenure of Office OF
any independent right to hold during the term
OF the President, ana for one month after the
cessation Of his official functions The proviso,
therefore, gives no tenure Of Office to any one
OF these officers who has been appointed by a
former President, beyond one month after the
accession Of his successor"
He further states that the only appointment
ever conferred upon Mr. Stanton as Secretary
of War was that conferred by Mr. Lincoln and
bsatw hare
OF the Cabinet and other civil officers establish
ed by the proyiso alluded to, says:
1.-The consequence is, that as to my Cabinet
embracing the seven officers designated in the
first section. the act takes from me the power,
without the concurrence Of the Senate TO re-
move any Of them that have appointed, but it
does not protect such OF them as did not ap-
point, nor give to them any tenure OF office be-
yond my pleasure.
1t would be violation of the plain meaning
OF this enactment to place Mr.. Stanton upon
the same footing rs those heads of Departments
who have been appointed by myself. As to
him, this law gives him no tenure Of Office.
The members OF my Cabinet who have been
appointed by me are BY this act entitled to
hold, one month after the term Of my Office
shall cease; but Mr.. Stanton could not against
the wishes OF my successor, hold a moment
thereafter.
He asserts that under this construction of the
tenure -of-office act he has never doubted his
power TO remove MI Stanton. but SAYS that
owing TO doubts which existed as TO the con-
structlon of the Law, he from the first 'sdeemed
il desirable that at the earliest possible moment
those doubts should be settled, and the true
construction OF the act fixed by decision of the
Supreme Court of the URIted State NV order
OF suspension. in August last, was intended TO
place the case in such a position would make
resort TO Judicial decision both necessary and
proper. My understanding and wishes how
ever. under that order of suspension, were frus-
Iated, and the late order tor Mr. Stanton's re-
moyal was a further step toward the accom-
plIshment of that purpose"
In respect to so much of the resolution as
relates 10 the designation of officer TO act as
Secretary of War dd interim, have only TO
say that have exercised this power under the
act OF February 13, 1875, which, far as they
are applicable TO vacancies caused by removals.
i understand to be still in force
The legislation upon the subject of ad iateri,
appointments in the executive departments
stands, as 10 the War Office, as toilow VS.
'sThe second section of the act of the Eth of
August, 1859, makes provision for a vacancy
IN the very case OF a 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, Sec
ton eight, IL Is provided that in case Of yacau-
cy occasiOnsd by death. absence from the SCAT
OF government, or sickness of the head of th..
war department, the President may authorize
a person TO perform the duties of the Office
until successor is appointed or the disability
removed. The act il will be observed. does
not provide tor the case OF a vacancy caused by
removal.
Then by the first section Of the act of Feb
any vacancy the President may appoint a Der.
son to perform the duties while the vacancy
exists
He then quotes the acts of the 10Th Of Febru
ary, 1863, which he says, swith some modifica-
tions, re-enacts the act Of 1872, and provides,
As did that act, for the sort OF vacancies SO 10
be filled: but, like the Act Of 1872. il makes no
provision for a vacancy Occasioned by removal
III has reference altogether TO vacancies arising
from other causes. According TO my construc-
tlon of the act Of 1892, regu lating the vacancies
al n h4 haar
upon so much of the act Of 1895 As applies to a
vacancy caused by removal. The act of l79,
therefore, furnishes the rule for vacancy
occasioned by remoyal-one of the vacancies
expressly referred to in the act of the 9TH of
August, 17s9, creating the Department OF War"
After discussing the question " hetner the act of
1863 repeals that Of 1876, he says:
1t may b., however, that in this as in other
cases Of implied repeal, doubts may arise Ii
Is confessedly one of the most subtle and de-
batable questions which arise in the construr
tion Of stat utes. IL, upon such a QUESTION 7
have fallen into an erroneous construction, l
submit whether IL should be characterized as q
violation Of official duty and Of law
The message concludes as follows:
Il have deeEaed II proper in yindication
of the course which have considered it nv
duty to take, TO place before the Senate the
reasons upon vi Inch l have based nv action
Although l have been advised by every men,
ber of my Cabinet that the entire tenure of
Office act Is unconstitutional, and therefore
void, and although have expressly concurred
in that opinion in the veto message which |
had the honor TO submit TO Congress when !
returned the bill for reconsideration, have
refrained from making a removal Of any
officer contrary TO the provisions of the law
and have only exercised the power in the
case Of Mr.. Stanton, which, in my iudg.
ment, did not come within its provisions 1
have endeavored to proceed with the greatest
circumspection, and have acted only in an
extreme and exceptional case, carefully
following the course which / have marked
out for myself. as a general rule, faith
fully TO execute all laws, though passed
over my objections, on the score Of constitu-
tionahty In the present instance ] have
appealed, or sought to appeal, to that final ar.
bitter fixed by the Constitution for the determi.
nation Of all such questions. To this course /
have been mpelied by the solemn obligations
which rest upon me to sustain inviolate the
powers of the high office committed to my
hands. Whatever may be the consequences
mel ely personal to myself, could not allow
them to prevail against a public duty SO clear
to my own mind, and SO imperative. If what
was possible had been certain; il had been
fully advised, when I removed Mr., Stanton,
that in thus defending the trust committed 10
my hands my own removal was sure TO follow.
i could not have hesitated, actuated by public
considerations OF the highest character. earn
esuy protest against the resolution of the Senate
which charges me. in what I have DONE with
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