PUBLIC DOCUMENTS. 



657 



Respectfully referred to the General of the Army 

 to give the necessary orders in this case and to fur- 

 nish this Department a copy for the information of 

 the Secretary of the Treasury. 



By order of the Secretary of War : 



ED. SCHRIVER, Inspector-General. 



HEADQUARTERS ARMY OF UHITED STATES, ) 

 February 11, 1868. f 

 Official copy : 

 GEORGE K. LEET, Assistant Adjutant-General. 



Message of President JOHNSON on the removal 



of Secretary Stanton. 

 To the Senate of the United States : 



I have received a copy of the resolution adopted 

 by the Senate on the 21st instant, as follows : 



Whereas, the Senate have received and considered the 

 communication of the President, stating that he had 

 removed Edwin M. Stanton, Secretary of War, and had 

 designated the Adjutant-General of the Army to act as 

 Secretary of War ad interim ; Therefore, 



Resolved by the Senate of the United States, That under 

 the Constitution and laws of the United States the Presi- 

 dent has no power to remove the Secretary of War, and 

 designate any other officer to perform the duties of that 

 office ad interim. 



This resolution is confined to the power of the 

 President to remove the Secretary of War and to 

 designate another officer to perform the duties of the 

 office ad interim, and by its preamble is made ex- 

 pressly applicable to the removal of Mr. Stanton, 

 and the designation to act ad interim of the Adjutant- 

 General of the Army. Without, therefore, attempt- 

 ing to discuss the general power of removal as to 

 all officers, upon which subject no expression of 

 opinion is contained hi the resolution, I shall confine 

 myself to the question as thus limited the power to 

 remove the Secretary of War. 



It is declared in the resolution, " that under the 

 Constitution and laws of the United States the Presi- 

 dent has no power to remove the Secretary of War 

 and designate any other, officer to perform the du- 

 ties of that office ad interim." 



As to the question of power under the Constitu- 

 tion, I do not propose at present to enter upon its 

 discussion. The uniform practice from the begin- 

 ning of the Government, as established by every 

 President who has exercised the office, and the de- 

 cisions of the Supreme Court of the United States, 

 have settled the question in favor of the power 

 of the President to remove all officers, excepting a 

 class holding appointments of a judicial character. 

 No practice, nor any decision, has ever excepted a 

 Secretary of War from this general power of the Presi- 

 dent to make removals from office. 



It is only necessary, then, that I should refer to the 

 power of the Executive, under the laws of the United 

 States, to remove from office a Secretary of War. 

 The resolution denies that under "these laws this 

 power has any existence. In other words, it affirms 

 that no such authority is recognized or given by the 

 statutes of the country. 



What, then, are the laws of the United States 

 which deny the President the power to remove that 

 officer ? I know but two laws which bear upon this 

 question. The first in order of time is the act of Au- 

 gust 7, 1789, creating the Department of War, which, 

 after providing for a Secretary as its principal officer, 

 proceeds as follows : 



SEC. 2. And be it further enacted, That there shall be 

 in the said Department an inferior officer, to be ap- 

 pointed by the said principal officer, to be employed 

 therein as he shall deem proper, and to be called the 

 chief clerk in the Department of War, and who, when- 

 ever the said principal officer shall be removed from 

 office by the President of the United States, or in any 

 other case of vacancy, shall during such vacancy have 

 the charge and custody of all records, books, and papers 

 appertaining to the said department. 



VOL. viii. 42 A 



It is clear that this act, passed by Congress, many 

 of whose members participated in the formation of 

 the Constitution, so far from denying the power of 

 the President to remove the Secretary of War, recog- 

 nizes it as existing in the Executive alone, without 

 the concurrence of the Senate or of any other depart- 

 ment of the Government. Furthermore, this act does 

 not purport to confer the power by legislative au- 

 thority. nor in fact was there any other existing legis- 

 lation through which it was bestowed upon the Exec- 

 utive. The recognition of the power by this act is 

 therefore complete as a recognition under the Con- 

 stitution itself, for there was no other source or au- 

 thority from which it could be derived. 



The other act which refers to this question is that 

 regulating the tenure of certain civil offices, passed 

 by Congress on the second day of March, 1867. 

 The first section of that act is in the following words : 



That every person holding any civil office to which he 

 has been appointed by and with 



oce un a successor sa ave been in like 

 pointed and duly qualified, except as herein 

 provided : Provided, That the Secretaries of St 

 Treasury, of War, of the Navy, and of the In 



the advice and consent 



of the Senate, and every person who shall hereafter be 

 appointed to any such office, and shall become duly quali- 

 fied to act therein, is, and shall be, entitled to hold such 

 office until a successor shall have been in like manner ap- 

 except as herein otherwise 

 e Secretaries of State, of the 

 , , avy, and of the Interior, the 



Postmaster-General, and the Attorney-General shall hold 

 their offices respectively for and during the term of the 

 President by whom they may have been appointed, and 

 for one month thereafter, subject to removal by and with 

 the advice and consent of the Senate. 



The fourth section of the same act restricts the 

 term of offices to the limit prescribed be the law cre- 

 ating them. 



That part of the first section which precedes the 

 proviso declares that every person holding a civil 

 office to which he has been or may be appointed, by 

 and with the advice and consent of the Senate, shall 

 hold such office until a successor shall have been in 

 like manner appointed. It purports to take from the 

 Executive, during the fixed time established for the 

 tenure of the office, the independent power of re- 

 moval and to require for such removal the concur- 

 rent action of the President and the Senate. 



The proviso that follows proceeds to fix the term 

 of office of the seven heads of departments, whose 

 tenure never had been defined before, by prescrib- 

 ing that they " shall hold their offices respectively 

 "for and during the term of the President by whom 

 they may have been appointed, and for one month 

 thereafter, subject to removal by and with the advice 

 and consent of the Senate." Thus, as to- these enu- 

 merated officers, the proviso takes from, the President 

 the power of removal, except with the advice and 

 consent of the Senate. By its terms, however, be- 

 fore he can be deprived of the power to displace them, 

 it must appear that he himself has appointed them. 

 It is only in that case that they have- any tenure of 

 office, or any independent right to hold during the 

 term of the President, and for one month after the 

 cessation of his official functions. The proviso. 

 therefore, gives no tenure of office to any one ot 

 these officers who has been appointed by a former 

 President, beyond one month after the accession of 

 his successor. 



In the case of Mr. Stanton, the only appointment 

 under which he held the* office of Secretary of 

 War was that conferred; upon him by my immediate 

 predecessor, with the advice and consent of the Sen- 

 ate. He has never held from me any appointment 

 as the head of the War Department. Whatever 

 right he had to hold. the office was derived from that 

 original appointment, and my own sufferance. The 

 law was not intended to protect such an incumbent 

 of the War Department, by taking from the President 

 the power to remove him. This, in my judgment, is 

 perfectly clear, and the law itself admits of no other 

 just construction. We find, in all that portion of the 

 first section which precedes the proviso, that as to 

 civil officers generally the President ia deprived of 



