658 



PUBLIC DOCUMENTS. 



the power of removal ; and it is plain that, if there had 

 been no proviso, that power would just as clearly 

 have been taken from him, so far as it applies to the 

 seven heads of departments. But, for reasons which 

 were no doubt satisfactory to Congress, these prin- 

 cipal officers were specially provided for, and as to 

 them the express and only requirement is, that the 

 President who has appointed them shall not, without 

 the advice and consent of the Senate, remove them 

 from office. The consequence is, that as to my Cabi- 

 net, embracing the seven officers designated in the 

 first section, the act takes from me the power, with- 

 out the concurrence of the Senate, to remove any one of 

 them that I have appointed ; but it does not protect 

 such of them as I did not appoint, nor give to them 

 any tenure of office beyond my pleasure. 

 . An examination of this act, then, shows that while 

 in one part of the section provision is made for offi- 

 cers generally, in another clause there is a class of 

 officers, designated by their official titles, who are 

 excepted from the general terms of the law, and in 

 reference to w,hom a clear distinction is made as to 

 the general power of removal limited in the first 

 clause of the section. This distinction is, that, as to 

 such of these enumerated officers as hold under the 

 appointment of the President, the power of removal 

 can only be exercised by him with the consent of 

 the Senate ; while, as to those who have not been ap- 

 pointed by him, there is no like denial of his power 

 to displace them. It would be a violation of the 

 plain meaning of this enactment to place Mr. Stanton 

 upon the same footing as those heads of departments 

 who have been appointed by myself. As to him this 

 law gives him no tenure of office. The members of 

 my Cabinet who have been appointed by me are, by 

 this act, entitled to hold for one month after the term 

 of my office shall cease ; but Mr. Stanton could not, 

 against the wishes of my successor, hold a moment 

 thereafter. If he were permitted by that successor to 

 hold for the first two weeks, would that successor 

 have no power to remove him ? But the power of 

 my successor over him could be no greater than my 

 own. If my successor would have the power to re- 

 move Mr. Stanton, after permitting him to remain 

 a period of two weeks, oecause he was not ap- 

 pointed by him, but by his predecessor, I, who 

 have tolerated Mr. Stanton for more than two 

 years, certainly have the same right to remove him, 

 and upon the same ground namely, that he was not. 

 appointed by me, but by my predecessor. 



Under this construction of the Tenure-of-Office 

 Act, I have never doubted my power to remove Mr. 

 Stanton. Whether the act were constitutional or not, 

 it was always my opinion that it did not secure him 

 from removal. I was, however, aware that there 

 were great doubts as to the construction of the law ; 

 and from the first I deemed it desirable that at the 

 earliest possible moment those doubts should be 

 settled, and the true construction of the act fixed by 

 decision of the Supreme Court of the United States. 

 My order of suspension, in August last, was intended 

 to place the case in such a position as would make a 

 resort to a judicial decision both necessary and proper. 

 My understanding and wishes, however, under that 

 order of suspension, were frustrated, and the late 

 order for Mr. Stanton' s removal was a further step 

 toward the accomplishment of that purpose. 



I repeat, that my own convictions as to the true 

 construction of the law, and as to its constitution- 

 ality, were well settled, and were sustained by every 

 member of my Cabinet, including Mr. Stanton him- 

 self^ Upon the question of constitutionality, every 

 one in turn deliberately advised me that the Tenure- 

 of-Office Act was unconstitutional. Upon the ques- 

 tion whether, as to those members who were appoint- 

 ed by my predecessor, that act took from me the 

 power to remove them, one of those members em- 

 phatically stated, in the presence of the others, sit- 

 ting in Cabinet, that they did not come within the 

 provisions of the act, and it was no protection to 



them. No one dissented from this construction, and 

 I understood them all to acquiesce in its correctness. 



In a matter of such grave consequence I was not 

 disposed to rest upon my own opinions, though forti- 

 fied by my constitutional advisers. I have therefore 

 sought to bring this question, at as early a day as 

 possible, before the Supreme Court of the United 

 States for final and authoritative decision. 



In respect to so much of the resolution as relates to 

 the designation of an officer to act as Secretary of "War 

 ad interim, I have only to saj that I have exercised 

 this power under the provisions of the first section 

 of the act of February 13, 1795, which, so far as they 

 are applicable to vacancies caused by removals, I un- 

 derstand to be still in force. 



The legislation upon the subject of ad interim ap- 

 pointments in the executive departments stands, as 

 to the War-Office, as follows : 



The second section of the act of the 7th of August, 

 1789, makes provision for a vacancy in the very case 

 of a removal of the head of the War Department, 

 and upon such a vacancy gives the charge and custody 

 of the records, books, and papers to the chief clerk. 



Next, by the act of the 8th of May, 1792, section 

 eight, it is provided that in case of vacancy occa- 

 sioned by death, absence from the seat of govern- 

 ment, or sickness of the head of the War Depart- 

 ment, the President may authorize a person to per- 

 form the duties of the office until a successor is ap- 

 pointed, or the disability removed. The act, it will 

 be observed, does not provide for the case of a va- 

 cancy caused by removal. 



Then by the first section of the act of February 13, 

 1795 ; it is provided that in case of any vacancy the 

 President may appoint a person to perform the duties 

 while the vacancy exists. 



These acts are followed by that of the 20th of Feb- 

 ruary, 1863, by the first section of which provision is 

 again made for a vacancy caused by death, resigna- 

 tion, absence from the seat of Government, or sick- 

 ness of the head of any executive department of the 

 Government ; and, upon the occurrence of such a 

 vacancy, power is given to the President " to author- 

 ize the head of any other executive department, or 

 other officer in either of said departments whose ap- 

 pointment is vested hi the President, at his discre- 

 tion, to perform the duties of the said respective 

 offices until a successor is appointed, or until such 

 absence or inability by sickness shall cease : Provided^ 

 That no one vacancy shall be supplied in manner 

 aforesaid for a longer tune than six months." 



This law, with some modifications, reenacts the act 

 of 1792, and provides, as did that act, for the sort of 

 vacancies so to be filled ; but, like the act of 1792, it 

 makes no provision for a vacancy occasioned by re- 

 moval. It has reference altogether to vacancies aris- 

 ing from other causes. According to my construction 

 of the act of 1863, while it imphedly^ repeals the act 

 of 1792, regulating the vacancies therein described, it 

 has no bearing whatever upon so much of the act of 

 1795 as applies to a vacancy caused by removal. The 

 act of 1795, therefore, furnishes the rule for a vacancy 

 occasioned by removal one of the vacancies express- 

 ly referred to in the act of the 7th of August, 1789, 

 creating the Department of War. 



Certainly there is no express repeal, by the act of 

 1863, of the act of 1795. The repeal, if there is any, 

 is by implication ; and can only be admitted so far as 

 there is a clear inconsistency between the two acts. 

 The act of 1795 is inconsistent with that^of 1863 as to 

 a vacancy occasioned by death, resignation, absence, 

 or sickness, but not at all inconsistent as to a vacancy 

 caused by removal. It is assuredly proper that the 

 President should have the same power to fill tem- 

 porarily a vacancy occasioned by removal as he has 

 to supply a place made vacant by death or the ex- 

 piration of a term. If, for instance, the incumbent 

 of an office should be found to be wholly unfit to ex- 

 ercise its functions, and the public service should 

 require his immediate expulsion, a remedy should 



