The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-10

oeheke AZ an cxceiHon 70
c &c ofa The sf,sa
removal incidental 10 that duty and might oien DC
This believe. will be found to be fair expression
OF the opinions of those who had occasion to exa-
mine this subject in their researches or as matter
OF speculation. In this case however, the tresuems
the general question where this power ec,s was
lodged, not merely the eject OF TINS aeCas1o
made IN l7ss and the practice OF .ne nsrtcrIsr
law, the provisions Of which were before nun, anu
might have an application to the case upon wMcn ne
TO do Justice to the President in reference to this
matter to examine what the theory OF the law Is
ana what It's y ana mus, a e upSe
OF Mr.. Stanton. During the debate In 1859 there
were three distinct theories held by different per-
sons In the House of Representatives. The one
was that the constitution had lodged the
power Of removal with the President alone;
the other was that tne CONSTITUTION pas;Hu mao
only by and with the consent OF the Senate; the
third was that the constitution had lodged 1t no
acted upon in connection with the prescription 81
the Tenure OF ONCE act. The last Of these theories
at that time held BY but few per
greater number Of votes. but much the greater
weight Of reason in the course Of that debate, so
much so that when this subject came under the con-
sderaton Of the Supreme Court Of the United States
In the case Of er pdrte - Mr.. Chief Justice Town
send who delivered the opinion Of the court in that
case, says that II has never been doubted that
the constitution had lodged the power either
In the President alone or the Senate-cer-
taniy an tnaccuracy-but then it required a very
close scrutiny and careful examination OF the in
dividual opinion expressed In that debate to ascer-
tain that 1t had been determined in one way or the
other. The constitution settled the question, never
thesess, as understand. may be mistaken In this;
but as understand 1t, it is the theory of this law
these opinions were wrong-that the constitution
has not lodged the power anywhere, except that it
has left II, as ! understand, legacy which may be
cOrtling to its own will; because, as Chief Justice
Marshall somewhere remarks land 1t Is one OF those
Carried by him into many Of his decsions when
comes to a question whether q power exists the
peculiar p,s. mode in which II must be ex ,n:
body that possesses 1t, and therefore, If this be
legislative power 1t was very apparent to the Presi-
dent OF the United States as 1t would have been very
apparent to Mr.. Madison, and declared by him in
the course Of his correspondence, which is no doubt
familiar to Senators, that II this be legislative
power the legislature may lodge 1t in the Senate may
retain 1t in the two houses Of Congress- or may give
it to the House Of Representatives. / repeat-the
President had to construe this particular law and
that as understand it, is the theory of that law.
do not undertake to say 1t 10 an unfOunded claim;
do not undertake to say that 1t may not be MAIN
that it was originally questioned by the
ablest minds that had this subject under
consideration in 1889, that whenever the question
has been started since 1t has had through recent
period very few advocates, and that fair candid
mind can deny or doubt at this day that 1t is capable
Of being doubted and disbelieved after examination
1t may be the truth after all; but 1t is not truth
which shines with such a clear and certain light
perceive it. The President not onv had to constru U
this particular law, but he had to construe its app-
cation, its constitutional ability to apply to this par
be what have endeav0red to show, which was not
within its terms; let us assume that the case is
within It's application let US assume that this pro;
the case OF Mr.. Stanton. Did Mr.. Stanton having
been appointed by President Lincoln under the act
OF 1862 and commissioned to hold during the pleas
ure OF the President, by force OF this law, acquire
right to hold this office against the will OF the Presi
dent down to- to April 1902 s Now there Is one thing
stituton and is not capable OF being doubted
and that is, that the President Is to make
choice and they being indicted into Office they can
be removed, is another question. But to the Presi
dent alone is confided the power Of choice. In
the Senate has consented to the nomination
he Is not bound to commission the off,
the consideration and acceptance rejection of the
choice he originally made Upon this subject allow
me to read from the opinion Of Chief Justice Mar
expressed more clearly than can do. Mr. Curtis
read from the opinion which enumerates the clauses
OF the constitution bearing upon the subject, and
says they to contemplate three distinct opera
ti0ns-the nomination. which is the voluntary act Of
voluntary act By and With the advice and consent Of
the Senate; third, the commission to grant which
might perhaps be deemed duty enjoned by the
1t Is optional with the President to commits
sion or not after appointment. He continued
that action Of the Senate upon the choice is an ad.
visory action only at particular stage OF the nomi
nation, and therefore the appointment or commission
fore, Mr.. Stanton was appointed under the law Of
1889 constituting the War Department In accord
ONCE during the pleasure Of the PRESIDENT. President
Lincoln has said to the Senate.-"I nominate Mr.
Stanton to hold the office Of Secretary for the Depart
sad-"we assent to Mr.. Stanton's holding the ofice
of Secretary for the Department Of War during the
pleasure Of the President sid What was this for' If
that Mr.. Stanton can hold Office against
the viii Of the President, contrary to the
which he was appointed, down to the 9th Of Xpr
1869, for this new fixed and extended term, where
mr. sts9onS commission PM who made the ap
sensed 70 BY tie two branches Of Congress- acting in
their Legislative capacity, and no other The Pres.
dent has had no voice In the matter; the Senate, as
the advisers Of the President had no voice in the
matter. he holds at ALL he holds by force Of egis-
assented to by the Senate. And this was the case.
and the only case, which the President had before
him and on which he was to act. Now I ask !
the Senators to consider whether for having formed
an opinion on the constitution Of the United states
opinion which he shares with every President who
mas preceded , nun WIN every Congress which has
which have imperfectly indcated-an opinion |
which, when applied to this particular case raises
Of the fact that this law does not pursue either OF
the opinions which were originally held on this SUBJ
ect and have occasionally been stated and main |
ained by those who were restless under its opera
ons-an opinion justified by the practice of the gov
,rnment from its origin down TO the present me-if
ie might properly and honestly form such an |
opinion under the lights which he had, and with the
MI Of this advice which we shall show you he re-
eived, then is he to be mpeached for acting upon IL
o the extent Of obtaining judicial decision whether
his department-the Executive Department OF the |
tovernment-was right In Its opinion, or whether |
he legislative department was right in its opinionY
Well, strangely enough the honorable Managers |
themselves say "No; he is not to be impeached for |
hat" beg leave to read from the argument OF the
Manager by whom the for the prose-
uon was opened
II President had really desired solely to test the cons
uonay OF the law his legal right Mr. Stanton
instead OF his defiant message 10 the Senate 2st OF
february informing them OF the removal bat
he purpose which Is thus shown TO be an aethoush he
would have said In substance "Gcnemen OF the
rider TO- test the consutionaty Of an act regulating the
Of certain civil onlces, which verify believe
and void have issued order for
noval OF Edwin Stanton from the Office OF Secretary
he Department OF War. felt myself constrained make
his removal lest Mr. Stanton should informa-