Year: 1868

which was never before exercised save BY thiinble
riggers and AharperA II Andrew Johnson never
him save from this avowai-we should have nun
picture OF his mind and heart painted in colors o.
living light, SO that no man wfli ever mistake his
steaa ~ - omen ana frank dealing, as becomes
the head q, Ss great nsssa rom n evs s
highest legislative branch thereof Instead ofa manly,
bearing, claiming openly and ditlnei
Once CO. and yielding to the other branches fairly and
Justly, those which belong 70 them, we lind him.
claims OF power concesllng his motives covering
his purposes, attempting by fndirection ana euoeer
fuge to do that as the ruler ofa great alton which,
stand before the Senate and the country
that % he had % at that time these intents and pur-
poses in his mind, and they are not the subter-
fuge and evasion ana aes % WHICH ah
quences Of his act. Senators, he asked you for
time In which to make ms ms answer; You gave
he could do this In ten days what sh 0uld we have
had II you had given him fortyi You show him


Passing nom further consideration Of the legality
OF the action OF the respondent In rem owing Mr. stan
ton from Sce IN the manner ana o ,os hn ana o~ns a
us now examine the appointment OF Brevet Major
General Lorenzo Thomas OF the United States army,
not denied In any quarter that this ad interim ap
pointment to this office Is the mere creature OF law
and il Justified at all is to be under some act Of
Congress- Indeed the respondent in his answer says
that in the appointment OF General Grant dd interim
he acted under the act Of February % l7sS
creating the Department Of War list Statutes at
Large, page 4s), in case Of any yacancy' no pro.
Interim Secretary. In that case the records and
papers to be turned over for safe keeping to the
sosSS S as s %as %
tempted to be remedied by Congress by the act OF
MAY s, 1892 pst Statutes, 2s1 which provides that
ernment or sickness Of the Secretary OF State,
Secretary Of the Treasury or of the Secretary or the
OF the said departments, whose appointment Is
not In the head thereof whereby they cannot perform
the duties OF their respective oices II shall DC aw


shall think 1t necessary, to authorize any person OF
persons at his discretion to perform the duties OF
pointed until such absence or inability by sickness
Shall cease" 1t win be observed that this act pro-
Sa for ey Of Hs
any officer In 1t cannot perform his duty, Dat
makes no provision for vacancy by removal. Two
First that it provided only for enumerated vacancies
and also it authorized the President to make an aoeS
ing ohicer Of any person for any length Of time To


meet these difficulties the act Of the 18th Of February,
1885, passed list Stat at Large, 4l5 which pro
yides n case Of vacancy whereby the Secretaries or
form the duties of his ofice, the President may
appoint any person to perform the .,a. dut.s:





Thus the law stood a. to acting N ~
place Of the Secretary until the 10th Of February
1885, when by the second section of an act approved
a. that date 9th Stat eas It was proviIasd % rns
tary or naval officer shall have any money paid .
him as salary in any office which Is not authorized ny
some previously existing law" The state OF the law
upon this subject at that point OF time IS thus:-ln
Of DEATH absence or sickness or OF any vacanV
War OF treasury Is Department could not perform
the duties Of the office any person could be authorized
by the President to perform those duties for the space
OF six months. For the Departments Of the Interior
and the Navy provisions had been made for the ap-
pontment Of an Assistant secretary but no provision
upon any officers acting when not authorized by law.
from receiving any salary whatever. To meet these
N and 70 meet e case o. sna aso 70 o.
what was found to be defect In allow.


ing the President ato. to appoint ,e any
acquaintance acc e' with the duties of the departmest
p 65o which provides that in case Of the death. re-
signation, absence from the seat Of government o.
81 anS es OF @ @


appointment is not In the head thereof whereV
they cannot perform the duties Of their respective
Offices 1t shall be lawful for the President OF the
United States, In case he shall think 1t necessary 70
authorize the head Of any other executive depart
whose appointment is vested In the President, ae
his discretion, to perform the duties of the said
u
ed or until such absence or inability shall cease
Therefore, in OF the DEATH resignation, sickness
absence Of head OF an executive department,
whereby the incumbent could not perform the duties
OF his Office. the President might authorize the head
of another executive department to perform the
duties Of the vacant Office and In case OF like dsa-
billty OF any officer OF an executive department
other than the head the President might authortze
an officer OF the same department TO perform his
duties for the space OF six months. ii Is remarkable


that In all these statutes from 1889 down, no pr0vis


ion Is made for the case OF removal, or that
anybody Is empowered TO act for the removed ocer,
the chief clerk being empowered 10 take charge q
the books and papers only. Docs not this series o.
tion Of the constitution that there could be no,
removal OF the chief OF an executive department by
the act of the President, save by the nomination and
appointment OF his successor, II the Senate were IN
session, or qualified appointment till the end Of the
next session II the vacancy happened was made<u
recessf Let apply this state OF the law TO tho
appointment OF Major General Thomas Secretary Of
War dd Interim by executive order. Mr.. Stante0


had neither died nor resigned, was not sick nor alb
sent II he had been, under the net OF March 5,
1s63-which repeas all inconsistent acts-the Presi-
dent was authorized only to appo mt the head Of
interim. Such was not General Thomas lie Wa
simply an officer Of the army, the head Of bureau or
department OF the " or Department, and not eligible
under the Law to be appoint d. SO that his appoint
ment was an illegal and void act There have been two
cases OF az interim appointments which illustrate and
confirm this posti0n the one was the appoint mens
OF Lieutenant General Scott Secretary OF War al
interim and the other the appointment OF General
Grant dd interim, upon the suspension OF Mr.. stan


ton, in August last. The appointment OF Generls
Scott legal, because that done before the
straining act OF March . 1868, which requires ths
detail OF the head OF another department to act al
Interim The appointment Of General Grant to take
the place OF Mr.. Stanton during his suspension would
have been Illegal under the acts | have cited,
he being an officer OF the army and not the head Of
department, II u had not been authorized by the
second section OF the Tenure OF Civil ONCE act, which
provides that In case OF suspension, and no other,
the President may designate .s0me suitable person
TO perform temporarily the duties OF such Office until
the next meeting OF the Senate.n Now, General


Grant was such suitable person." and was


properly enough appointed under that pro
vision. This answers one ground OF the
defence which II taken by the Presdent-that
he did not suspend Mr.. stanton under the Tenure 0f
ONCE act, but by his general power Of suspension
and removal or an officer. lf the President did not
suspend stanton under the Tenure OF ONCE act, be-
cause he deemed IL unconstitutional and void, then
there was no law authorizing him to appoint General
Grant, and that appointment was unauthorized BY
law and violation OF hts oath Of Office. But the
Tenure of Office bill its eXpress terms fOrbds anV