The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1868-05-19
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| persons at his discretion to perform the du-
ties OF the said respective offices until sue
ceSsor De appointed, or such vacancy shall be
suPPHed IN manner aforesaid for a longer
Term lhdn SIX months This act il will be
! observed, applies only to vacancies and does
| not tOucn temporary disabilities leaving the
| latter to stand as before under tLe Act of
1892. 1t still leaves to the President his
choice OF the person without restriction TO
| supply a vacancy, and while il provides GDr
all vacancies arising from whatever cause.
like the law Of 1902, it makes no alusion to
!he Senate, or to whether or not that body is
IN session; but this act differs from its prede-
cessor IN this, that it specifically limits the
time during which any one vacancy can be
supplied to six months
| Thus stood the law down TO the passage of
the Act of Feb 20, 1863, (Statutes at Haroe
vol. II, page $685. In the meantime other
| Departments had been created, to neither OF
| which were the provisions before cited an.
| plicable, and yet it appears from the record
that about every President in office since
the creation Of these departments, had in re-
| peated instances exercised the same power
and authority in supplying temporary vacan-
| cies and disabilities in the new departments,
| which they were authorized to exercise in
| those originally, created without objection,
and even without remark. The act of Feb.
| 20, 1863, provides:
That in case of death, resignation, absence from
any executive apartment, or of any officer of either
OF the said departments, &c. it shall be lawful for
the president To authorize the head any other ex-
eeuuse uepartmeh', or any officer in either Of the
said departments whose appointment is vested in Tho
President to perform the duties until a successor be
appointed, or until such absence or inability shall
| cease, provided that one vacancy shall be smn
| six months.
Sec ion repeals all acts or parts of acts in
consistent, &c. This act, it will be observed,
covers IN terms the cases provided for in the
act oi l192, and one more, vacancy by resgna-
ton. 1t limits the range of selection by con-
timing it to certain specific classes of persons.
1t limits the time tor which any vacancy NAV
be so supplied to six months, and it extends the
power of so supplying vacancies and Temporal
ry absences and disability to all the Depart
ments. Clearly, therefore, it repeals the act of
lIJz, covering all the cases therein enumerat-
ed, and being in several important particulars
inconsistent with it. There was nothing left
for the act of 1892, which not regulated
and controlled by the act of 1868. How was it
with the act of 1895? That act covered all cases
of vacancy. Had it repealed the prior act Of
1872? 1t had applied the limitation of six
month for any one vacancy, and to that extent
was inconsistent with the act of 1892 so far as
vacancy by death was concerned but it left
the cases of sickness and absence untouched.
The power conferred by tine act of 1892 in these
cases remained and was exercised without
question in multitude of cases by all ofthe
Presidents down to the passage of the act of
1868. In like manner, the act Of 1868, while it
bOOh OUT OF operation OF the act OF l7yO the
case of vacancy by resignation and made
new provision for it, left untouched vacancies
by removal and by expiration of limited te-
nure of office. Suppose the act OF 1868 had
provided in terms for only the two cases of alb
sence and sickness specified in the act of 1892
will it be contended that in such case the
power conferred in that act in case of death
would have been repealed by the act of 1868?
If not, by parity. of reason the enumeration
OF the vacancy by resignation in the act of 1863
would extend no further than to take that case
out of the act OF 1875, leaving the cases of re-
moval and expiration of time still subject to it's
operation
The conclusion, therefore, is, that whatever
power the hePresident had by the act 1895 to ap-
| point any person dd interim in case of removal
remains unaffected by the act of 1863. 1t has
| been argued that the authority vested in the
| President by the act of 1895 is repealed by the
| sixth section of the act of March 9 1867 which
| prohibits and Furnishes "the making, signing,
countersigning or issuing of any commission
| or letter of authority for or in respect to any
| such appointments or appointment" If the
| act of 1875 IS repealed by these section it must
| operate in like manner upon the act of 1868.
| The consequence would be that in no case nei-
ther ID recess, or 10 session, neither in case of
| vacancy, however arising, in absence or sick
| ness, would the President have pOweI.even for
| a day, to authorize any person to discharge
| the duties of any or officer in any of
| the departments which is filled by Presiden-
| tial appointment All must remain as they
| are, and all business must stop duriug session
| or in recess, until they can be filed by legal
appointment. This could not have been in
! tended
The words above cited from the sixth section
| of the act of 1867 qualified by the words
| Contrary to the provisions of this act" The
| language is, "COmmSsion or letter OF authori-
| ty for or in respect to any such appointment
| or employment to wit removal appointment
| or employment made, had or exercised con-
| trary to the provisions of this act, IT. there
| fore, the removal is not contrary to the act
neither is the designation of q person to dis
| charge the duties temporarily, and letter of
| authorityissu in such case is not pruhib-
j tied. In conformation of this view, it will be
March 1867 sshth ssst9R Of the act Of
of the President, without the advice and con-
sent OF the Senate, to designate, authorize or
| employ persons to perform the duties of Ger
tain offices temporarily, thus confirming the
authority conferred by the preceding acts.
My conclusion therefore is, that as the Pres
ident had legal right to remove Mr.. Stanton,
Notwithstanding the act of March 2 1867, he
had the right to issue the letter of authority
to Gen. Thomas to discharge the duties of the
Department of War, under and by virtue of
the act of 1895 1t has been urged, however,
that the sixth months limitation in the act of
1895, had expired before the 2lst of February,
1868, in consequence of the appointment of
General Grant as Secretary of War dd interim
on the 18th day of August, 1867. l am unable
to see the force OF this argument. Whatever
may have been the opinion of the President
as to his power of suspending an officer under
the Constitution, and am of the opinion that
he had no such power, he clearly had the
2 right to suspend Mr.. Stanton under the Sec
ond section of the act of March 2, 1867, and
must be held in law to have acted by virtue of
the lawful authority thereby conferred, NOR
. especially as he saw fit to conform in all re-
spects to its provisions. The action of the
Senate upon that suspension restored Mr..
e Stanton to his office of Secretary of War. This
: | suspension cannot be considered as a removal
o | and the subsequent removal, on the 2lst of
| LNah cd d in thn off from
, | that date. The designation of General Thom-
r | as cannot, therefore, be considered a con-
| tinuaton of the original designation of Gen.
= = Grant on the 18th day of August, 1867. But
J even if l am wrong in this conclusion, and the
u President had no power by existing laws to
appoint "a Secretary of War dd interim, yet, it
l. Mr. Stanton did not come within the first sec
ton of the act of 1867, the second article fails.
| The qTaUdmen of that article is the violation of
! | the Constitution and the act of March 2, 1867 ,
q | By issuing the letter OF authority with intent
+ | to violate the Constitution, &C., there being
| no vacancy in the Office of Secretary of War.
= | If legal vacancy existed, the material part of
: the accusation is gone. letter OF authority,
such as that issued to Thomas, is in no sense
+ | an appointment to Office, as understood by the
D Constitution. If it be, then the power to issue
such letter in any case without the assent of
J. | the Senate cannot be conferred by Congress. If
it be- the acts OF 1892, 1875 and 1868 are uncOn-
q | stitutonal. The sixth section of the act of
. | March 2, 1867, recognizes the distinction be-
, | tween an appointment and letter of authori-
ty The practice has been frequent and un-
: broken, both with and without authority of
! | statute law, to issue letters of authority in
cases of vacancy and temporary disability al
most from the formation of the Government
1t has been called into use here by the necessi-
ty of always having some one at the head of a
department. There no law prohibiting such a
designation in case of a vacancy in depart
ment. If the President had no authority TO is
sue the letter in this individual case, it was at
most, paper having no force and confirming
, | no power. 1t was no violation either of the
| Constitution or the law. The fact that on the
! very next day nomination was actually sent
! to the Senate, though the Senate had ad-
iourned IL was not communicated until the
3 succeeding day, goes to show that there might
q have been no design to give anything but the
1 | most temporary character to the appointment
: | To hold that an act of such character pro-
, | bibited by no law, having the sanction of long
? practice necessary tor the transaction of bust.
! | ness, and which the President might well be
justified in believing authorized by existing
d law, was a high misdemeanor, justifying the
: removal of the President of the United States
from office, would, in my judgment, be in it.
c self a monstrous perverSiOn of Justice if not
] of itself violation of the Constitution.
D THE PRESIDENTS THREATS.
= The first two articles failing, the third,
fourth fifth, sixth, seventh and eighth must
fail with them. The third differs from the
: second only in allegation, that the President
u appointed Lorenzo Thomas Secretary Gd in
n terin without the assent of the Senate, that
l. | body being then in session. and there being no