Year: 1868

the Department OF War; and having IN MS
| capacityo President of the United States SO
examined and considered, did form the opin-
ion that the case of the said Stanton and his
tenure of Office were not affected by the first
section of the last named act.


That although case thus existed, calling
for the exercise of the executive power OF
removal, under the constitution, and believing
that Mr.. Stantons case was not affected by
the first section of the tenure Office act, the
respondent desired, if possible, to avoid any
question of the broader question OF the
| executive power conferred on the President
! by the constitution to remove the principal
officer of one of the executive departments;
! that in these questions of difference between
the executive and legislative department of
| the government, we desire that they should
be in some proper way submitted to the judicial
department entrusted by the constitution with
the duty Of determining finally the construc-
ton and effect of all acts of Congress, and
comparing them with the constitution itself,
with view of pronouncing them imperative
when found in conflict with that fundamental
law which the people have enacted for the
government Of all their servants-and to
these ends


First, that through the action of the Senate
of the United States, the absolute duty of the
|
of Mr. Stanton. as one of his advisers, and as
principal subordinate officer whose official
conduct he was responsible for, and had lawful
right to control, might, if possible, be accom-
+ plshed without the necessity Of raising any
one of the questions aforesaid and, second,
| if this duty could not be so performed, then
that these questions, or such of them as might
necessarily arise, should be judically de-
termined and for no other end or purpose
this respondent, as President of the United
States, on the 18th day of August, 1867,
seven days after the reception of the letter Of
the said Stanton of the 5th of August, herein
before stated, did issue to the said Stanton
the order requiring him to turn over the War
Department to General Grant, Secretary of
War al inttrint, to which the said Stanton
yielded "under protest to superior force"
Further, that the respondent believes that
the executive power of removal contided to
him by the constitution includes the power Of
suspension from office at the pleasure of the
President, and that this respondent, by the
order aforesaid, did suspend the said Stanton
from office, not until the next meeting of the
Senate, or until the Senate shall have acted
upon the case, but by force of the power and
authority vested in him by the constitution
and laws of the United States indefinitely
and at the pleasure of the President; and the
order, in form aforesaid, was made known to
the Senate of the United States on the 18th
day of Dec, a. D., 1867


That by his order of August 12th 1867
the respondent authorized General Grant to
perform the duty of Secretary of War dd
interim according to law-not until the next
meeting of the Senate, and until the Senate
should act on the case, but at the pleasure of
the President subject only to the limitation
of six months, and copy of the last named
order was made known to the Senate of the
United States on the 18th day of December,
A. D. 1867; and in pursuance of the design
and intention aforesaid, if it should become
necessary to submit the said question to a
judicial determination, this respondent, at or
near the date of the last mentioned order, did
make known such his purpose to obtain judi
cial decision.


That after the Presidents message to Con-
gress December 18th, 1867, making knewn
the order above cited, the President was COM
PEELED either to allow the said Stanton to re-
sumo the said Office and remain therein, con-
trary to the settled convictions Of the Presi
dent respecting the powers conided to him
and the duties required of him by the con-
stitution of the United States; and contrary
to the opinion that the first section Of the ten
ure of office act did not affect the case of the
said Stanton, and contrary to the fixed belief
of the President that he could no longer ad-
wise with or trust, or be responsible for the
said Stanton in the Office of the said Secreta-
ry for the Department of War, or else he was
compelled to take such steps as might, in the
Judgment of the President, be lawful and
necessary to raise for judicial decision the
question affecting the lawful right of the said
Stanton to resume the said Office, or the pow
er of the said Stanton to persist in refusing
to quit the said office if he should persist in
actually refusing to quit the same, and to this
end and to this end only, this respondent,
on the 21st day of February, 1868, issued
the order for the removal of said Stanton in
the said first article mentioned and set forth,
and the order authorized the said Lorenzo
Thomas to act as Secretary of War al in
| tcIin1 in the said second article set forth.


And this respondent, proceeding to answer
specifically each substantive allegation in the
said first article, says he denies that the said
Stanton, on the 21st day of February, 1868,
was lawfully in possession of the said Office
of Secretary for the Department of War
He denies that the said Stanton, OF the day
last mentioned, was lawfully entitled to hold
the said office against the will Of the Presi
| dent of the United States He denies that
the said order for the removal of the said
! Stanton was unlawtully issued. lie denies
that the said order was issued with intent to
violate the act entitled can act to regulate
the tenure of certain civil Offices" He de-
nies that the said order was violation of the
last mentioned act. He denies that the said
order was a violation of the Constitution of
the United States, or of any law thereof, or
of his oath of office He denies that the said
order was issued with any intent to violate the
| Constitution of the United States, or any law
thereof, or this respondents oath of office,
and he respectfully but earnestly insists that
not only was it issued by him in the perform
ance of what he believed to be an imperative
official duty, but in the performance of what
this honorable court will consider was, in