Year: 1868

secondly, whether It was so clearly and plainly
that he considered as not Including that case But
Of Once act sti the inquiry arises whether the de-


livery OF this letter OF authority TO General Thomas
was violation OF the act l shan necessarily ask
Of this act and to the particular provisions contained
IN 1t. Senators win remember, undoubtedly that
om MaS tne bin as Was Originally R
troduced. The law relates to two distinct subjects
the one the subject Of removal the other the subject
Of appointments to Office. It seems that practice
had grown up under the government that
when person was nominated to the Senate
iEd d no an act nis anu or rejected it. was
considered competent for the President after the
adjournment OF the Senate, by temporary comlils-
That was deemed by large majority OF Senators TO
be an abuse OF power-n0t an Intentional abuse. 1t
was practice that had prevailed under the govern.
limited to recent years. had been supported by the
opinions Of Attorney Generals; but still 1t was
spirit Of the S constitution and in derogation Of the
just powers Of the Senate In reference to the
no to ar.t oe nat Seng fs So sw tat w
the first and second sections Of the act
related exclusively to removals from office and to
Senate whereas the other sections to which shall
particularly ask your attention relate exclusively 10
to ' once nice after the Senate had refused to con.
cur In the nomination Of the person appointed.
This law provides that the President shall have
recess Of the senate BY reason Of death Or resig
nation. 1t will be remarked that this les not in
expiration Of q commission, but 1t includes simply
death and resignation during the recess OF the
@ that w s oss not non
Of fact it does not cover all cases that n. arise
even belonging to this general class to
It provides that the President shall
have power to nll all vacancies which may happen


By sranns which shall


expire at the end Of the next session thereafter; and
II no appointment by and with the advice and con-
sent Of the Senate shall be made to such office during
such next session, then such office shall remain in
abeyance, without any salary, fees or emoluments
appointment by and with the advice and consent Of
the Senate; and during such time all powers and du-
ties belonging to such Office shall be exercised by
such ofice. Here Here all ali the ofrices brought
s d s ressss o Of the snd
the filling OF that vacancy by the President,
are ss as t0 S
fore its adjournment; and that applies, as l have
sad to the two classes Of cases-namely, vacancies
does not apply to any other vacancy. The next
section does not relate to that subject but to the sub
sr d o exenS e this o. sna De


son SHAH, contrary to the provisions Of
employment in any Office or shall otherwise attempt
to hold or exercise any such offce or employment,
misdemeanor, and upon trial and conviction there
for shall be punished therefor by fine not exceed
ing $4,000, and by imprisonment" What are the
provisions Of this act In relation to accepting any ap
pointmentf They are found In the third section of
the act putting some officers into allegiance under
similar circumstances, which are described In that
section, II any person does accept an office which


Is thus put In abeyance, or any emoument or author
MY N sS s
there Is such thing accepting an oice contrary
to the provisions Of the act because the provisions
of the next section, Every removal, appointment,
or employment made, had, or exercised contrary to
is hereby declared, to be a high misdemeanor.D The
stress OF this article does not seem to me TO depend
at all upon this question Of the construction Of the
agree should be fairly and carefully considered. The
allegation in the article Is that this otter OF authority
form the duties Of Secretary Of War dd Interim with
out the authority Of the law. That conceive
article, provided the case Of Mr.. stanton and his
removal comes within the Tenure Of ONCE act at ALL
the act OF les which Is found in Statutes at LANCE
page four hundred and ffty II is short act, and
VIII read the whOleof it,


sSs G,ssf ssiS
ss 4sy o s s


in he shall think authorize person
at a S to bs the q @ Ss
be ed provided no one vacancy shall be snPped


This act, 1t has been suggested, may have been
repealed by the act Of February 20, 1868, which is
found in H. Statutes at Large, page 656 This also
is a short act and will read IT.


Be II enacted &C., That Of the DEATH resignation
az The seat Of @ or Of the head
not IN The head Of the ONCE Whereby they perform the
o he S SH
Ia the ae %
perform Of said respective onces until successor


pd
manner aforesaid for longer term than six months.


Now these acts, as the Senate will perceive, al
though they may be said In some sense to relate to
the same general subject matter, are very different
In or e aee earlier
latter law operates as repeal OF the older law, It is
only by implication. It says in terms that ali
but the addition OF these words adds nothing to Its
meaning at ALL The same inquiry would arise II
shat latter law with the provisions ms Of
the earlier lawS There are certain rules on the sub
ject which shall not fatigue the Senate by citing
recognize them. In the first place there is
q rule as to the repeal by implication. As under
principle that II the Ieasature really Intended To
repeal the law It would have said SO; not that It
should necessarily say 80, because there are repeas
Legislature entertains clear and fixed intention 10
repeal law, IL will be likely at least to say so.
Therefore the rule is settled that repeals by
implication are not favored by the court. Another
rule Is, that the repugnancy between the two SUBJ
ject, must be clear It is not enough that under
some circumstances one law may possibly be repug-
nan to the Other the repugnance must be clear and


II the two laws stand together the latter does not
operate as repeal OF the former. II senators have
any desire to refer to the authorities this subject
they will find sufficient number OF them collected
In Sedgwick on Statute Laws page 1850. Now,
there IL no repugnance whatsoever that 1 can
perceive between these two laws. The act OF 1905
applies to all vacancies, however created. The act
OF 1853 applies only to vacancies temporarily or
otherwise occasioned by death or resignation. Re-
movals from ofiice and expirations OF commission
are not included In it. The act OF 1895 applies only
to vacancies. The act OF 1853 applies to temporary
absence or sickness The subject matter, therefore,
OF the two laws Is different There is no inconsls-
tency between them. They may stand together
each operating on the cases TO which IL applies; and
therefore submit that In the strictest view that
be taken OF this subject and which may be ultimately
taken of IT, 1t is not practicable to maintain that the
law Of 1858 repeas altogether the act of 1895. But
whether 1t did or not, state here, what have
so frequently had occasion to state before
that IL Ia fair question. Ia ft crime