The New York herald., 1868-04-11

WteTt" appolntment. The counsel, In tnis connec-
act Of 17s2 to the act OF February 20, 1853,
and. continuede-The Senate will perceive what
dimculty these laws were designed to meet. The
dificulty was the occurrence OF some sudden va
cancles In ONCE or OF some sudden inability on the
part OF the oicer to perform his duties; and the fr
tenton OF eacn OF these laws was to make provision
so that notwithstanding this vacancy or this tempo
rary disability the duties Of the office would still be
is apparent that these temporary vacancies are not
liable to occur during the session OF the Senate
they are during the vacations, and that it ID just as
necessary 10 nave set OF legislative provisions to
enable the President carry on the public service
during the session OF the Senate as it Is to have the
same set OF provisions during the vacation; and
these laws thar they make no distinction what
ever between the sessions Of the Senate and
the a In @
vacancy shall 0ccurn is the language OF the
statute. Whenever there shall be death, resig
nation or an Absence or Sickness the law applies.
When the occurrence takes place which gives rise to
the event which the law contemplateS, and the par
IN admitted 0a no S p aW as Of
no consequence. In accordance with that has been
the uniform certain and frequent practice OF the
structcd we shall be able to prove not In or two
instances, but In great number Of instances The
honorable non managers themselves produced the other
day schedule OF temporary appointments, during
the sessions Of the Senate OF inferior officers of de-
partments, to perform temporarily the duties OF
tours with the cases Of removals or suspension Of
officers. Take the case for instance of Mr.. Floyd,
out % Of cics his 'aS chief clerk T was vaSsu per-
control II the third section Of the act Of 1850
was allowed 10 operate the control OF the War De-
partment went into the hands Of that chief clerk.
The Senate was in session. 1t would not answer to
t. n, md Mr.. Buchanan sent to the Post Oace and
took the Postmaster General into the War Depart
ment and put It IN his charge. There were then in
this body sucient number OF persons to look after
matter OF that sort II they felt interest in It, and
accordingly they passed q resolution inquiring Of
President Buchanan by what authority he had made
an appointment Of person to take charge Of the
War Department without the consent OF the Senate.
In answer to that message was sent In containing
the facts and showing to the Senate OF that day the
the long continued practice under which similar
through the time Of General Jackson and his two
immediate successors, and showing q great number
Of ad interim appointments OF that kind. There can
be no ground then, whatever for the allegation that
this dd interim appointment was violation OF the
constitution Of the United States pass, therefore,
to the next article, which wish to consider, and
that not the next In number but the eighth article
take 1t In that order because the eighth, as have
anaiyzed It, differs from the second only in one par
ttcuar and, therefore, taking 1t in connection with
the subject OF which / have been just speaking,
1t will be necessary for me to say but very few
fully to control the appropriations made by Congress
for the military service. That is all there OF 1t ex
cept what rs Is In the second article and on that Ger
cessary to make any observations The Senate will
remember the offer Of proof Of the Managers, de-
the United States through his private secretary,
with the Treasurer, and thus to enable him to con-
troll the appropriations made for the military service
The evidence however, was not received, and there
fore, It seems quite unnecessary for me
to make any comment upon it. The al
pointed General Thomas; second, that he did It
without the advice and consent Of the Senate third
that he did Il when no vacancy had happened during
there was no vacancy at the time; fifth, that he
mitted o high misdemeanOr by thus Intentionally
violating the constitution Of the United States de-
sire to say word two this subject. And, first,
we deny that he ever appointed General Thomas TO
the office Of Secretary OF War; An appointments can
be made to an Office only by the advice and con-
sent Of the Senate, and through commission signed
by the President and bearing the great SEAL That s
made. The President, az Ihave said, may Temporal
ry commission officers when vacancies occur during
ment, ald Is not SO considered in the constitution
The President may also under the acts Of 1895 and
1863 grant authority to persons to perform tempora
rily the duties OF certain otiice when there Ii q
vacancy. All that the President did in this case
was to issue letter Of authority to General Thomas
Secretary q War In no sense was this an appoint.
ment. But 1t is said that 1t was made without the
advice and consent of the Senate. Certainly it was
obtained to an ad interim authority OF that kind
This was an appointment to supply temporarily o
defect In the administrative machinery or the gov
ernment. II the President had gone to the Senate
for It's advice and consent he have gone under
"
that oiice-a thing which he certainly never intend
ed to do and never made any attempt to carry out
II Mr.. Stanton's case is not within the Tenure Of
once act; II, AZ l 80 frequently repeated,
he held his Office under the act Of 1855 and
during the pleasure OF the President, the
Thomas carried TO him, that moment there O
vacancy In point OF law, however he may have re-
fused to obey the order In point OF fact The Senate
will observe that two letters were delivered to Gene
raj Thomas at the same ume-0ne Of them an order
to Mr. Stanton to vacate the Office and the other
the Office when Mr.. Stanton obeys the order Just
given. May not the President issue O letter Of au-
thorlty In contemplation that vacancy is about to
subject and to have the order which creates the va
cancy first sent and delivered, and then sit down
to his table, and afterwards sign letter to another
to hold the officer II the President expects
vacancy, II he has done an act which In his judg-
ment is sufficient TO create vacancy, may he not
sign the necessary papers appointing another to
carry on the duties OF the offices II 1 have been
successful In the argument which have already ad-
point OF fact there was no violation OF the constlu
ton Of the United States In delivering this letter Of
authority, because the constitution makes no pro-
vision Tor this temporary authority and the law Of
Congress has made no provision for 1t. Here, also,
beg leave to 9emind the Senate that the case
does not fall within the Tenure OF ONCE act II the
order which the President gave to Mr.. stanton to
vacate the ONCE was lawful order, and one which
he was bound to obey, everything contained In this
article, well as the preceding articles falls IL IL
impossible, submit, for the honorable Managers to
construct case Of an intention the part OF the
fTebiuent W vlOldte the cOnStltutOn OF the Unteu
by anything which he did In reference to the
appointment Of General Thomas, provided that the
order to Mr.. Stanton was lawful order and he was
bound to obey II.
advance now, Senators, to q different class OF
articles, which may be called the conspiracy articles
because they rest upon charge of conspiracy be-
tween the President and General Thomas. There are
four OF them-the fourth, fifth, sixth and seventh as
they stand. The fourth and sixth are found
under the oct Of July 81 1851, which Is found
In the twelfth volume Of "Statutes at Largen page
2sl. The nth and seventh found under no act OF
Congress- They allege an unlawful conspiracy, but
they refer TO no law by which the acts charged are
made unlawful. The acts charged are called unlaw-
full but there is law referred and no case made
by the articles within any law OF the United states
and therefore shall treat these artices-the fourth
and sixth and the nth and seventh-togethcr, be-
cause think they belong In that order. The fourth
and sixth charge conspiracy within the Conspiracy
act. IL IL necessary for me to state the sub
stance Of the law In order that you may see
whether 1t can have any possible application
to the case. II was passed on the 3lst OF
July 1851, and Is entitled "An act to define and
punish certain conspraces." lt enacts that II two
or more persons within the States or Territories Of
the United states shall conspre together to over
throw or put down or destroy by force the govern