The New York herald., 1868-04-28

States into Congress on his own terms tn the
interests Of the traitors. and in defiance Of
States The s peces ohpsss sharsed nere
U %hIa ong are sgt facts and only the last
tempt to remove the rghtul Secretary Of War and to
substitute In his place creature OF his own without
the advice and consent OF the Senate although then
from resuming or holding the said ONCE after the
refusal OF the Senate to concur In his suspension and
states ase sa ana possess tue Of the United
an omcer OF the army from his allegiance by incul-
@ caung insnoordination to the law; in furtherancs
~ ~ VIC same OBJECT, the attempt to set aside
tne rghtn authority of Congress and to bring 1t into
PUBIC odium and contempt, and to encourage resist
Indecent harangaes impeachns its acts and pur. +.
poses ana iull OF threats and menaces against It and
Of h sas cs sss ss snS
the devlslng and contriving OF unlawful means to
Appropriation and Reconstruction acts OF March q
1851 TO all OF these which relate to the attempted
removal q the Secretary OF War, the answer is,
within the meaning OF the first section Of the
Tenure Of once act; second that i be, the act is
abridge the power claimed by him OF removing at any
and all times all executive officers for causes to be
Judged Of BY himself alone as well as Of suspendlng
and, third that, whether the act be constitutional or
otherwise, 1t was his right as he CLAIMS it to have
view to the settlement Of the question Of its
validity by the judiciary OF the United States.
And rs as to the question whether the
be comprehended within the first section OF the act
referred to. The defendant insists that he was
from Mr.. Lincoln and not being removed on
Mr.. Johnson accession continued by reason
thereof to hold the ONCE and administer its duties at
his pleasure only, without at any time having re-
ceived any appointment from misunderstanding, as
understand, either that under the provfso TO the
first section OF this act the case was not provided
for or that by force OF its express language ms oce
was SC determined by the expiration Of the arst term
enactory clause OF this section provides that every
person then holding any civil office, who had been
appointed thereto BY and with the advice and con-
sent OF the Senate, or who should be thereafter
appointed to any such olice Should be entitled TO
hold until successor is appointed in the like man.
ner. 1t Is evident therefore, that its object was to
provide for all cases either then existing to nap
pen p IN tee R future ! is objected however that 50
partments Is substantially repealed by the saving
clause, which Is in the following words:-"Provdcd,
that the Secretaries OF State, OF the Treasury, OF
master General and the Attorney General, shall
hold their Offices, respectively, Ior and during
nave OF BEEN o oy and wnSm Sr oes
month thereafter subject TO removal by and with the
advice and consent OF the Senate." This provision
was the result Of a conference OF the disagreeng
houses ON the amendment OF the House striking out
the exception in favor OF the heads Of departments,
and was suggested, il he may be excused the ego
tsm, by the Individual who now addresses you, ana
to whom, as the mover and advocate or the amend
ment, was very naturally assigned the duty of con-
ducting the negotiation tine part OF the House. for
the purpose Of advocating the objection taken In de-
bate on this noor by one Of the Senate
President Cabinet thatwas not Of his selection.
may be excused for speaking OF It's actual history,
because that has been made the subject of comment
by the learned counsel VINO opened tAis case on the
part Of the President Ii 1t was intended or expected
that 1t should so operate as 10 create exceptions In
favor Of an officer whose abuse of power was the
proximae cause II not the impe,ling motive, for the
enactment OF the law did not know IT.
1t will be judged, however. by itself, with
out reference to the particular intent OF him
who pemned IT. or to any nasty opinion It t1at i% may
struction OF which It might be susceptible. The
argument OF the defendant rests upon the meaning
involves the idea Of q nomination ana confirmation
certainly, by Mr. Johnson. In the latter which s the
sense In which the people VIII read IT, there unqnes
tSnaby was What them was meant BY In the a s%
accepted rule in all the courts In cx-
planning the meaning OF the lawgiver, ana
think this is-if 1t Is not rather to beconsidered
as only declaratory one In this partcularto look to
ne a a% ne Jonf 10 aa the 'nS anS ~
Hoetdtis In order to reprcss the mischief and ad-
vance the remedy taking the words used in their Or
ing as the intent, which il always the polar star,
may requretesng the case here by this, what s u
be the construction hcref The Old law was not the
constitution's but a vicious practice that had
grown Sgt q Precedent Involving S,. an early
and II was Intended 30 TO operate. The mis-
chef was, this practice had rendered the
oiiicers OF the govcrnment, and among them
the heads OF departments, the most powerful and
dangerous OF ali, from their assumed position Of
advisers Of the President by the very dependency OF
their tenure, the mere ministers OF s pleasure and
moment and as the reward OF an honest and inde-
pendent opinion, strip ihein of their employment
and send them back to the rdnks of tho people. Tie
remedy woud change them from minions and
natterers into men, by making them free, anu
10 Ss o ner the 'py 70 as ah ~
their assent to Its violations. TO accomplish
this IL necessary that the law should cover all
Of them, high ana low, present and prospective.
That 10 could have been intended 10 except the most
important and formidable Of those functionarics.
either with view to favor the present Executive
for The purpose OF sube, ting on, head OF depart
ment who had the conlidcnce of Congress to his
arbitrary will, is unreasonabe and inlrobahle as
II IL at variance with tile truth aud with the
obvious general purposes OF the act For the Pres
ident OF the United states to s, however, now, after
having voluntarily retained rr. Stanton FOR more
than two years OF his administration, that he was
there only by sutIcrance Or ~ q mere movable, or
with the estate and not by virtue VI his own special
appointment, n not pothcring with the people In
double sense has very mucn the appearance OF q not
very respectable quibble. The unlearncd man who
reads proviso they for whose perusal It Is In
tended will read IT, who Is not accustomed to handle
the metaphysical scissors OF the profes sonal casusis
who are able to divide q hair 'twixt west and
northwest side. while he admits the ingenuity OF
the advocate, who VIII not stand amazed 4 he does
such a subterfuge. Assuming, however for Tie sake
Df argument, that the technical sense Is to prevail
what is to be its effect? Why only to make the
awgver enact a very unreasonable aud Impossible
hing by providing In words OF the future tense that
he commission OF the officer shall expire nearly two
Tears before the passage OF the law, which Is con.
'truction that the general rule OF law forbids 10
est that let ub substitute for the general
ienominative phrase Of Secretaries OF war
II State, Of the Navy, the names Of Messrs.
seward, Stanton and wcllcs, and for that OF the
rs ,Sd caS.sp Ts0 ppSptfa aS Se ef q
Seward, Stanton and welles shall hold their Offices
for and during the term OF Abraham
lincoln and for one month thereafter. The erect
will then be to put you In the position OF having
enacted not only an absurdty but an mpossibilIfy;
)ut on this there are at least two
rules of Interpretation that start up in
he way OF solution; the first Is that
t Is not respectful 10 the Legislature to pre-
,ume that it ever intended to enact an absurdity II
The case is susceptible OF any other construction,
and the second that acts OF Parliament that are i'm
possible to be performed are OF no validity and IL
narlaa fafi o. rd