The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-02-28
AMfssAGE FROM THE PRESIDENT TO THE SENATE.
His Right to Remove Stanton Defended.

secresy:
80 the Senate Of The United States:
"Ihave received copy Of the resolution adopted
by the Senate on the 2lst inst. as follows:
"'WHEREAs. The Senate have read and consid-
cred the communication of the president stating
that he had removed Edwin NJ. Stanton, secretary
of war, and has designated the adjutant general
Of the army to act as secretary OF war dd Interim;
therefore.
"'Resolred, By the Senate Of the United States,
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 Oh ser
10 perform the duties Of that Office dd Interim
"Ths resolution Is confined to the power OF the
president TO remove the secretary of war. aud to
designate another officer to perform the duties OF
the Office dd interim, and by its preamble is made
expressly applicable TO the removal Of Mr.. Stan
ton, and the designation to act dd interim Of the
adjntant general Of the army.
Without attempting to discuss the general
power Of removal OF all officers, upon which sub
ject no expression of opinion is contained in the
resolution, shall conhne myself to the question
as there lmifed-the power TO remove the secre
fary Of war. IL is declared in the resolution 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
10 perform the duties Of that Office dd interim
AS 10 the question Of power under the COnsttu-
ton, do not propose at present to enter upon its
discussion. The uniform practice from the be-
ginning OF the government, by every president
who has exercised the Office, and the decisions OF
the Supreme Court Of the United States, have set
tied the question in favor Of the power Of the
president to remove all officers excepting class
holding appointments OF Judicial character. No
practice or any decision has ever excepted q
secretary OF war from this general power of the
president 10 make removals from Office. It Is
only necessary, then. that should refer to the
power of the executive under the laws OF the
United States 10 remove from Office secretary Of
war. The resolution denies that under these
VI haa awfo In 9TH
words, 1t afirms that ne such authority il recog-
nized 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 ofhceri know but two laws which bear
upon this question. The first, in order OF time, is
the act Of August 7, 1885, creating the department
of war. which after providing for secretary as
its principal officer. proceeds as follows:
80 SEC. 2 BE Il further enacted, That there
Fhall be in said department an inferior officer, ap-
pointed by the said principal officer, to be en-
ployed therein as be shall deem proper, and to be
called chief clerk 10 the department of war, and
who, whenever the said principal officer shall be
removed from Office by the president Of the United
States or in any other case of vacancy, shall, dur
ing such vacancy, have the charge and custody Of
all records, books and papers appertaining to the
said department.
at Is clear that this act, passed by Congress,
many Of whose members participated In the form
alton of the Constitution, so far from denying the
power Of the president TO remove the secretary of
war, recognizes IL as existing ia the executive
alone, without the concurrence Of the Senate or
of any other department of the government.
Furthermore, this act doessnOt purport to con-
fer the power by legislative authority; nor, in
fact, was there any other existing legislation
through which 1t was bestowed upon the execu-
tive. The recognition Of the power by this act
is, therefore, complete as a recognition under the
Constitution itself, for there 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 officers,
passed by Congress on the I'd day of March, 1867.
The first section of that act is in the following
words:
"'Ihat every person holding any civil Office to
which he has been appointed by and with the adj
vice and consent Of the Senate, aud any person
who shall hereafter be appointed to any such
Office, and shall become duly qualified to ect
therein is and shall be entitled to hold Office until
a successor shall have been In like manner ap-
pointed or duly qualified. except as herein other.
wise provided; provided that the secretary of
state secretary Of the treasury, secretary OF war;
secretary Of the navy. secretary of the interior,
the postmaster general and the attorney general
ehall hold their Offices respectively for and during
the term Of the president by whom they may
have been appointed, and for one month there
after, subject to removal by and with the advice
and consent Of the Senate
"1he fourth section OF the same act restricts
the term of Office to the limit prescribed by the
Law creating them. That pert Of the first section
which precedes the proviso declares that every
person holding civil Office to which he has been
or may be appointed by and with the advice and
consent Of the Senate, shall hold such Office until
o successor shall have been in like manner ap.
pointed. Il pnrports to take from the executive
during the fixed time established for the tenure of
Office, the independent power Of removal, and to
require for such removal the concurrent action of
the president and the Senate.
The provisions that follow proceed to fix the
term Of Office Of the several heads OF depart
ments, whose tenure never had been defined be-
FORE by prescribing that they shall hold their Of
fee respectively for and during the term of the
president by whom they may have been sp-
pointed, and for one month thereafter, subject to
removal by and with the advice and consent of
the Senate.
"Thus, as TO these enumerated officers, the pro-
viso takes from the president the power Of re
moval, except with the advice and consent Of the
Senate. By its terms, however, before he can be
deprived Of the power TO displace them, it must
appear that he himself has appointed them. 1t is
only In that csse they have any tenure Of office,
any independent right to hold during the term OF
the president, and one month after the cessation
Of his official functions.
1.-The proviso, therefore, gives no tenure Of
Office to any one Of these officers who has been
appointed by the president beyond one month
after the accession Of his successor. In the case
OF Mr.. Stanton, the only appointment under which
he held the Office OF secretary OF war was that con-
ferred upon him by my immediate predecessor,
with the advice and consent OF the Senate. He
has never held from me any appointment as the
head of the war department. Whatever right he
had TO hold the Office was derived from that orig
inal appointment and my own suiierance.
"The law was not intended to protsct such an
incumbent of the war department by taking from
the president the power 10 remove him. This, ia
my judgment, is perfectly clear. The law itself
admits Of no other construction. We find in all
that portion of the first section which precedes
the proviso that as to civil officers generally the
president is deprived OF the power of removal
and il is plain that II there had been no proviso
that power would just as clearly have been taken
from him far Is il applies to the seven heads Of
departments.
" But for reasons which were, no doubt, salts.
factory to Congress, these principal officers we're
speedily provided for; and, as to them. the ex-
press and only requirement Is that the president
who has appointed them shall not, without the ad-
vice and consent of the Senate, remove them from
Office. The consequence is, that as to my cabi-
net. embracing the officers designated in the first
section of the act, It takes from me the power,
without the concurrence OF the Senate, to re-
move any one Of them have appointed; bat II
does not protect such Of them as l did not ap-
point, nor give to them any tenure Of office beyond
my pleasure.
" An examination Of this act then shows that
while in part Of the section provision Is made
for officers generally, 10 another clause there is
class Of officers designated by their official titles
81