Year: 1868

struction would involve us in the


absurdity of ostensibly attempting to


limit the tenure of all cabinet officers


to the term of the officer having the power


to appoint them, yet giving to three of the


present Cabinet ministers an unlimited


tenure. If the construction contended for


by the Managers be the correct one. while
| four of the present Cabinet officers will go


out of Office absolutely and without any


action by the Senate, on the 4th of April


next, they having been appointed by Mr..


johnson, the three Cabinet officers appoint
ed by Mr.. Lincoln will hold by another and


different tenure and cannot be removed


until the incoming President and the Sem


ate shall mutually agree to their removal.


If have not erred thus far in my judg-


ment then it follows that the order for the


removal of Mr.. Stanton was not violation


OF the Constitution of the United States by


reason of its having been issued during the


session of the Senate. If Mr.. Stanton held


his office at the pleasure of the President
| alone, under the act of 1889, as think he
did, it necessarily follows that the Presi-


dent alone could remove him. The Senate
had no power in reference to his contin-


uance in Office. ] am wholly unable to per-


ceive, therefore, that the power of the Pres


ident to remove him was affected or quail


flied by the fact that the Senate was in ses-


sion. 1t has sometimes been put forward,


as it was by Mr.. Webster in the debate of
1887, that the usual mode of removal from
office by the President during session OF
the Senate had been by the nomination of


a successor in place of A B removed. This
would naturally be so in all cases except
the few in which the officer could not be


allowed, consistently with the public safety,
to continue in Office until his successor


should be appointed and qualified, and also
should refuse to resign. Such cases cam


not often have occurred; but, when they


have occurred, l believe the President has


sl,
to belong to him alone, and which, in the


statute tenure of most officers, is recog-


nized, by the acts of Congress creating
them, to be the pleasure of the President


of the United States. A number of cases


of this kind have been put in evidence. 1


do not find either in the debates which have


been had on the power OF removal or in
the legislation of Congress on the tenure of


offices any trace of a distinction between


the power of the President to remove in
recess and his power to remove during a
session of the Senate, an officer who held


solely by his pleasure. And / do not see


how such distinction could exist without


some private distinct provision OF law to
make and define it. know of no such pro-
vision. If that was the tenure by which


Mr.. Stanton held the Office of Secretary for


the Department of War, and 1 think it was,
then am also of the opinion that it was not
a violation of the Constitution to remove him





ton held under the act of 1889, no permis-
, sion of the President to continue in Office,
no adoption of his as Secretary for the De-
partment of War could change the legal
tenure of his office as fixed by law or de-
prive the President of the power to remove
him. My opinion on the matter of the first
| article is not affected by the facts contained
t in it that the President suspended Mr..
Stanton, and sent notice of the suspension
| to the Senate, and the Senate refused to con-
eur in that suspension. In my opinion,
f that action of the President could not and
did not change the tenure of Mr.. Stanton's
office, as it subsisted by law at the pleasure
of the President, or deprive the President of
that authority to remove him which neces-
sarily arose IRON that tenure of office. If
the order of the President to Mr.. Stanton


was a lawful order, as have already said
thought it was, the first question under the
second article is whether the President did
to General Thomas to perform the
duties of Secretary for the Depart
t ment of War ad interim. This was
not an appointment to Office
2 1t was temporary designation
of person to discharge the duties
of an office until the office could be
filled. The distinction between such a
f designation and appointment to Office is in
5 itself clear enough, and has been recognized,
2 certainly, since the act of February 13, 1895.
Many cases have occurred in which this
4 authority has been exercised. The neces-
5 sity of some such provision of law in cases
of vacancy in offices which the Executive
cannot instantly fill must be apparent to
= every on acquainted with the workings of
] our Government, and l do not suppose that
] a reasonable question can be made of the
! constitutional validity of law providing
e for such cases. The law of 1895 did provide
v for such cases, and the President, in his an
hQ q
: subsisting law not repealed. 1t may be q
] question whether it has been repealed; but
t from the best examination have been able
] to bestow upon the subject am satisfied il
t has not been repealed. l do not propose tC
f enter into the technical rules as to implied
: repeals; it is a subject of great difficulty
5 and do not profess to be able to apply
' those rules. 1 take only this practical view
n of the subject. When the act of February
: 20, 1868, was passed, which it is supposed may
e have repealed the act of 1895, it is beyond
e all dispute that vacancies in Office might bt
: created by the President, and there nigh
e be the same necessity for making temper
d ary provision for discharging the duties o
s such vacant offices as was provided for by
5 the act of 1885, The act of 1868 is wholly
e silent on this subject. Why should 1 say
e that a public necessity provided for in l79;
: cogniZed, or why should [ say that if re
l. cognized, it was intended by the act of 1856
q that it should not thereafter have any pro
h vision made for ii? Comparing the act o
n 1868 and the cases it provided for, see M
IS sufficient reason to say that it was the in
e tention of Congress in 1863 to deprive tn
e President of the power given by the act o
Il 1895 to supply the temporary necessities o
II the public service in case of vacancy caused
:. by removal. But if thought otherwise .
: Il u be unable to convict the President o
n crime because he had acted under the Law
nf safa.- oY,
y pointments have been brought before u
e in evidence. 1t appears to hav'
il been a constant and frequent prae
t. tice of the Government, in all cases wher
: the President was not prepared to fill al
J. Office at the moment when the vacancy oc
1t CURED, to make an dd interim appointment
n There were one hundred and seventy-nin
e such appointments specified in the schedul
annexed to the message of President Blu
e chanan, found on page 5S4 of the printe,
,r record, as having occurred in little NOR
IS than the space of thirty years. have no
1t minutely examined the evidence to follow
v the practice further, because it seems to m
e that if, as 1 think, the President had tn
n power to move Mr.. Stanton, he might wei
d conclude-and that it cannot be attributed
10 to him as a high crime and misdemeano
% that he did conclude-that he might desig
20 nate some proper officer to take charge o
n the War Department until he could send
II VI oulodOlC pCisOl " DO wv
d retary; and when l add that on the next da.
t. after this designation the President did nom
IS mate for that Office an eminent citizen, il
1t whose loyalty to our country and in who's
ot fitness for any duties he might be willin!
e to undertake, the people would be willin,
1t to confide, / can find no sufficient reason Il
g doubt that the President acted in goo'
is faith and believed that he was acting with
le in the laws of the United States. Surely
r the mere signing of that letter of appoint
Is ment, neither attended nor followed by tn
at possession of the office named in it, or b.
i'd any act of force, of violence, of fraud, o
IS corruption, of injury or OF evil, will no