Year: 1868

indlcmen and trial of President OF the United States
ana OF an officer Of the army account of written


Ter one OF the Departments Of the against the
iaw Is Wrestling the statute wholly from its application
We are all familiar with the illustration which Black
stone gives us Of the mprOprety Of following literally
me words OF statute against the necessary Implication
where he says statute against letting blood In the
street can properly support indictment against sur
geOn Tor tapping the vein OF an apopectc patient who
happened 10 have fallen on the sidewalk. And there is
no greater provision and cOnTariety in this effort to
make this statute applicable 10 ordinary and regular
proceedings between recognized officers OF the United
States IN the disposition Of office than there would he
IN R'hPs the snIse%On con for relieving the
attended TO IT, the point Of the argument Of the learned
Manager, Mr.. Boutwell,, which brought into view the
common law OF Maryland adopted by Congress for the
government OF domestic and ordinary affairs OF the
people OF this district IL cannot be supposed tmt tne
President of the United States determining what ms
power and duties in regard 70 giving ONCE shou1
have looked into the common law Of the District Of
Columbia because the officers arc exercised in the district


On these views presented in the conspiracy adte,eo


let US see what the evidence is There was no prsaIa
ton application of force There threat OF force
authorized on the part Of the PRESIDENT anu ee Mas ~
expectation OF force For ne @ % Tu ncac and
regular Of authority on his part the Once Wou
be- II ri iba no oS that m legal bs
sis thus furnished by his ofhclal acuGn t'sIo tho
should BE an opportunity ,a iOr saEnS Nn,H tben tIo
seems to be nothing but those articles which relate TO
the ad interim appointment OF Gen. Thomas and TO the
removal of Mr. stanton will consider the ad interim
appointment first leaving 1t to be assumed Tor me pur
been vacated and was open TO the action Of the Pres


dent III the office was full then there would be no ap
ponmeut by tbs authority OF the President otherwise
and the whole action of the President was manlesy
based the idea that the office was to be vacaed Oeoo
interim, appointment could possibly be made or was
intended TO take effect The letter of appointment or
authority as 1t IS called IN ue M!iciTs' ,ras o,
of course secondary TO the order Of removal.
Gen, Thomas was only TO take up tne uHToS VIZ
should leave the office in need OF such temporary chage
Now think that the only subject have TO CONSIDER
before look at the law governing ad interim appoint
ments. is some suggestion to any difference between
ad interim appointments during the session OF the senate
and during the The honorable Managers perhaps
all of them but certainly the honorable Manager Alr
BoutwelD here contended that the practice OF the Gov
ernment in regard to removals from once Gov
cred only the Of removal during the re-
cess of the Senate. 1t viii be part Of my my
duty and labor when come to consider definitely
the question of the removal of Mr. Stanton to consider
that point but for the purpose Of Mr. Thomass appoint
ment no such discrimination needs TO be made. The
question Of the right OF the Executive TO vacate an Once
to be dscrimnated between the recess OF me senate
and its session. arises out OF the constitutional dstcuom
that is taken, TO w.t. that the President can only MI
offices during the session by the advice and consent
Of the senate ana tnat no .GnI,, can ui., u,
ing the recess commission oy an5moiiy !;, anDont 70
expire with the next session Bat ad mG9m M 7 appoint @
ments do not rest upon the Constitution at all Iey are
regarded they have been regarded as an eXer
else OF the appointing power ln me sense OF G no an
the executive or the legislative power OF pfo'id
ing for the management OF the duties es OF rrdn an
erly be made. Now in the absence OF legs
laton must be said that that power belonged to the
Executive. That part OF his duty was when he saw that
an accident had vacated office that necessity





laws should be executed, and to provide that the
public service should be temporarily taken up
that that was eGsus ogi,ss,s for which the
Constitution had provided rule and which the legis
latiOn OF Congress might properly occupy AS early,
therefore as 1892 provision made for temporary
cupatlOn OF office. The act of 1872 regulating three OF
disabilities the heads of departments might be met by
appointment Of temporary character to take charge OF
vacancy in an office, there should be power in
the Executive which would not require him to hll
the office by the consultation method, but temporarily
TO provide for the discharge CT its duties Before
considering the act of 1868, which in terms covers
pOntt | wish TO ask your attention TO some circum-
stances in regard the passage of that act of 1853
provides for the filling temporarily Of vacancies.


In January 1868 the President sent to Congress this mes
sage and Senators will perceive that II relates TO this
particular object 81 submit to Congress the expediency
OF extending to other Departments OF the Government
the authority conferred the President by the eighth
section Of the act Of May lS 1892 10 appoint person
temporarily TO discharge the duties OF Secretary OF state
Secretary Of the Treasury and Secretary OF War; In case OF
death absence from the seat OF Government or sickness


That to say the tepoa dsa9g m @ oI tne Sn
IN existence had never been extended by law 70 cover
the other departments and the President desired TO have
that act extended This message having been referred
the Judiciary Committee the honorable Senator from
Illinois (Air TrumbulD. Chairman OF that Committee,
made believe q very brief report in which he says


There have been several statutes on the subject and
as tile law now exists the President has authority tenn
porarly TO fill the offices Of Secretary OF state and
Secretary Of War from one OF the other depart
ments. by calling somebody 10 discharge
the duties that other Department the Treasury We
have received communication from the President of the
United States asking that the law may be extended TO
the extended 10 the other Executive Departments Of the
Government, which seems to be proper. And we have
framed bill covering all OF those cases, so that when
ever there removal the President may temporarily
devOve the office upon another cabinet officer, and ap
point the chief officer Of the Department for the time be-


ing There does not seem 10 have been brought l. the
notice of the Of the honorable Senator the Act
Of 1875 nothing is said OF IT, and IL would appear as II the
whole of the legfatOn Of 1868 proceeded upon the pOpo
son OF extending the Act OF 1922 Of disabilities and not
vacancies except that the honorable Senator uses the
phrase vacancy" and that he speaks OF having pro-
vded for the occasion that might arise Now the act OF 63


does not cover the vacancies except by gnaOu
1t add to the disability which the President had re-
ferrcd tOthe OF the resignation which lie dd not
ask 20 have covered ana when dd not necd 10 De COW
cred by legislation because the law OF 1875 covered
it. But this act Of 1868 does not cover all The cases OF
vacancy 10 does not cover cases or vacancy ny removal
and IT does of expiration OF office which
is OF vacancy Now under that auditlona nghtlt
II the only question presented OF quit on the
part OF the President III respect 10 the appointment
10 Office al interim question OF the final law The
Senators will remark the very limited form III which that
question arises It Is not pretended That the appointment
OF Gen Thomas, if the office was vacant was violation
OF the civil tenure act although perhaps ne may De 80
charged the articles because an examination OF the ar
tices shows that the only appointment the infringement
under the provision of that act and as was pointed out
by my colleague, Mr. Curtis. which seems TO be subject
OF argument on the other SIDE that appomtment pro
hibng attempting 10 prohibit relates 70 the infrac-
tion Of that act IS an attempt TO MI te 1inces Deeye
that 20 DC sound CONSTRUCTION OF he aws very wen,
then suppOsing that the appointment OF Gen Thomas
not according 10 law IL IS nor against any law nat
prohibits IT, against any law at mas penal clause
or a criminal qualification upon the act what would
be III attempted without oO1
cause General Thomas not officer under that acti
IL would that the President had appointed an Of
fcer attempted to appoint him, al Interim without
authority OF law. There abundance OF mandatory
laws upon the President OF the United states has
never been customary 10 put penal clause IN them as In
the Civil Tenure act. But on this subject OF penal ap'
pOntnent there Is no penal clause and no positive prO


bitiOn in any sense but there would be definite author
ity in the President TO make the appointment What,
then would be the effect Why, Gen. Thomas would not
be entitled TO discharge the duties That Is all that
be claimed In that regard But have insisted and
do insist, that the act OF 1898 was IN force and
whether the act Of 1895 not is OF those
questions OF dubious Interpretation OF a law upon
which NO officer, humble or high, can be brought
into question for having opinion one way
the other and II you proceed upon these articles II
YOU execute a sentence Of removal frOn-Ofiice OF a
President OF the United States, you proceed
highest possible Of civil