The case of Mr. Stanton has two branches: first, his removal, and,
secondly, the substitution of Adjutant-General Thomas as Secretary of
War _ad interim_. As the former was contrary to positive statute, so
also was the latter without support in any Act of Congress. For the
present I content myself with the latter proposition, without opening
the question of Presidential powers under the National Constitution.
The offender rests his case on the Act of Congress of February 13,
1795, which empowers the President, “in case of _vacancy_ in the office
of Secretary of State, Secretary of the Treasury, or of the Secretary
of the Department of War, … whereby they cannot perform the duties of
their said respective offices, … to authorize any person or persons, at
his discretion, to perform the duties of the said respective offices,
until a successor be appointed, or such vacancy be filled”; and the
supply of the vacancy is limited to six months.[202] Under this early
statute the President defends himself by insisting that there was a
“vacancy,” when, in fact, there was none. All this is in that unfailing
spirit of prerogative which is his guide. Here is assumption of power.
In fact, Mr. Stanton was at his office, quietly discharging its duties,
when the President assumed that there was a “vacancy,” and forthwith
sent the valiant Adjutant-General to enter upon possession. Assumption
and commission were on a par. There is nothing in any law of the land
to sanction either. Each testifies against the offender.
The hardihood of this proceeding becomes more apparent, when it is
understood that this very statute of 1795, on which the offender
relies, was repealed by the statute of February 20, 1863,[203] passed
in our own day, and freshly remembered. The latter statute, by
necessary implication, obliterated the former. Such is the obvious
intention, and I do not hesitate to say that any other construction
leads into those absurdities which constitute the staple of the
Presidential apologists. The object of Congress was to provide a
substitute for previous statutes, restricting the number of vacancies
which might be filled and the persons who might fill them. And this was
done.
As by the National Constitution all appointments must be with the
advice and consent of the Senate, therefore any legislation in
derogation thereof must be construed strictly; but the President
insists that it shall be extended, even in face of the constitutional
requirement. To such pretensions is he driven! The exception recognized
by the National Constitution is only where a vacancy occurs during the
recess of the Senate, when the President is authorized to appoint until
he can obtain the consent of the Senate, and no longer. Obviously,
cases may arise where sudden accident vacates the office, or where the
incumbent is temporarily disabled. Here was the occasion for an _ad
interim_ appointment, and the repealing statute, embodying the whole
law of the subject, was intended for such cases,--securing to the
President time to select a successor, and also power to provide for
a temporary disability. Such is the underlying principle, which it is
for us to apply. The expiration of a commission, which ordinary care
can foresee, is not one of the sudden emergencies for which provision
must be made; and assuming that vacancies by removal were contemplated,
which must be denied, it is plain that the delay required for the
examination of the case would give time to select a successor, while
removal without cause would never be made until a successor was ready.
Look now at the actual facts, and you will see how little they come
within the reason of an _ad interim_ appointment. Evidently the
President had resolved to remove Mr. Stanton last summer. Months
elapsed, leaving his purpose without consummation till February. All
the intervening time was his to select a successor, being a period
longer than the longest fixed for the duration of an _ad interim_
appointment by the very statutes under which he professed to act. In
conversation with General Sherman, a month before the removal, he
showed that he was then looking for a successor _ad interim_. Why not
a permanent successor? It took him only a day to find Mr. Ewing. If,
as there is reason to suppose, Mr. Ewing was already selected when
Adjutant-General Thomas was pushed forward, why appoint the latter
at all? Why not, in the usual way, transmit Mr. Ewing’s name as the
successor? For the excellent reason, that the offender knew the Senate
would not confirm him, and that therefore Mr. Stanton would remain in
office; whereas through an _ad interim_ appointment he might obtain
possession of the War Department, which was his end and aim. The _ad
interim_ appointment of General Thomas was, therefore, an attempt to
obtain possession of an office without the consent of the Senate,
precisely because the offender knew that he could not obtain that
consent. And all this was under pretext of an Act of Congress alike in
letter and spirit inapplicable to the case.
Thus does it appear, that, while Mr. Stanton was removed in violation
of the Tenure-of-Office Act, Adjutant-General Thomas was appointed
Secretary of War _ad interim_ in equal derogation of the Acts of
Congress regulating the subject.