Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1868-02-25
MESSAGE OF THE PRESIDENT.

lows
"That under the Constitution and laws Of
the United States the President has no power
to remove the Secretary of War, and designate
any other officer to perform the duties of that
Office ad interim.
This resolution is confined to the power of
the President to remove the Secretary OF War
and to designate another officer to perform the
duties Of the Office adj interim, and by its pre-
amble is made expressly applicable. to the re:
moval of Mr.. Stanton, and the designation to
act od interim of the Adjutant General OF the
army. Without, therefore, attempting to dis
cuss the general power OF removal as to all
officers, upon which subject no expression OF
opinion is contained IN the resolution, (! shalI
conGne myself to the question as thus limited
the power to remove the Secretary of War.
I 1t is declared in the resolution, that under
the Constitution and laws of the United States
the President has no power to remove the Sec
rotary of War and designate any other ONCE 10
perform the duties of that office ad ante17ne
AS to the question Of power under TIE
enter upon its discussion. The uniform prac-
tice from the beginning Of the Government, as
Established by every President who has exer-
cised the Office, and the decisions of the Su,
nremc Court of the United States, have settled
the question in favor of the power of the Pre-
sdent to remove all officers, excepting class
holding appointments Of judicial character.
No practice, nor any decision, has ever except
ed a Secretary of War from this general power
of the President to make removals from office.
1t is only necessary, then, that should re-
fer to the power Of the Executive, under the
laws of the u. S., to remove from office Sec
rotary of War. The resolution denies that
l. Il, Il bnc
In other words it afirms that no such author
ity is recognized or given by the statutes OF the
country.
What, then are the laws of the United
States which deny the President the power to
remove that officer? [ know but two laws
which bear upon this question. The first 10
order of time is the act Of August 7, 1889,
creating the Department of War, which, after
providing for Secretary as its principal officer,
proceeds as follows:
HSEc. 9. And be 1t further enacted, That
there shall be in the said Department an infer
ior officer, to be appointed by the said princi-
pal officer, to be employed therein as he shall
deem proper, and to be called the chief clerk
in the Department of War, and who, whenever
the said principal officer shall beremoved 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 appertalDlng to
the said Department..
1t is clear that this act, passed by Congress
many of whose members participated IN the
formation of the Constitution, so far from de-
nying the power Of the President to remove
the Secretary of War, recognizes it as 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
authority, nor in fact was there any other eX-
listing legislation through which it was bestow-
ed upon the Executive. The recognition of
the power by this act is therefore complete as
a recognition under the Constitution ITSELF for
there was no other source or authority from
which it could be derived
The other act which refers to this question
is that regulating the tenure of certain civil
Offices, passed by Congress on the second day
of March, 1867 The first section of that act
is in the following words:
THAT every person holding any civil Office to
which he has been appointed by and with the
advice and consent of the Senate, and every
person who shall hereafter be appointed to any
such office, and shall become duly qualified to
such Office until successor shall have been in
like manner appointed and duly qualified, ex-
cept as herein otherwise provided: Pr0UMed,
That the Secre! aries Of State, of the Treasury,
of War, OF the Navy, and of the Interior, the
Postmaster General, and the Attorney General
shall hold their Offices respectively tor and dur
inc the term of the President by whom they
may have been appointed, and for one month
thereafter, subject to removal by and with the
advice and consent of the Senate.
The fourth section Of the same act restricts
the term of Offices to the limit prescribed by
the law creating them.
That part of the section which precedes the
proviso declares that every person holding
civil office 10 which he has been or may be APP
pointed by and with the advice and consent OF
the Senate, shall hold such office until sue
cessor shall have been in like manner appoint
ed. It purports to take from the Executive,
during the fixed time established for the ten
ure of the Office the independent power OF re-
moval. and to require for snch removal the
concurrent action of the President and the
Senate.
The proviso that follows proceeds to fix the
term of office of the seven heads of depart
mcnts, whose tenure never had been defined
before, by prescribing that they 'sshall hold
their offices respectively for and during the
term of the President by whom they may have
been appointed, and for one month thereafter,
subject to removal by and with the advice and
consent of the Senate" Thus, as to these en-
umeratcd officers, the proraso takes from the
President the power Of removal, except with
the advice and consent of the Senate. By its
terms, however, before he can be deprived ofthe
power to displace them, it must appeartbat he
himself has appointed them. 1t is only IN that
casethat they have any tenure OF office, any IN
dependent right to hold during the term OF the
President, and for one month after the ccssa-
ton or his official functions. The proviso,
therefore, gives no tenure of office to any one Of
these officers who have been appointed by
former President, beyond one month after the
accession of his successor.
In the case of Mr.. Stanton, the only APP
pointment under which he held the office of
Secretary of War was that conferred upon him
h. .a., 40 oaorrnr xrith tho aduinn and cnn-