WASHINGTON, _January 15, 1861_.
_To the Senate of the United States_:
In compliance with the resolution of the Senate passed on the 10th
instant, requesting me to inform that body, if not incompatible with the
public interest, "whether John B. Floyd, whose appointment as Secretary
of War was confirmed by the Senate on the 6th of March, 1857, still
continues to hold said office, and, if not, when and how said office
became vacant; and, further, to inform the Senate how and by whom the
duties of said office are now discharged, and, if an appointment of an
acting or provisional Secretary of War has been made, how, when, and by
what authority it was so made, and why the fact of said appointment has
not been communicated to the Senate," I have to inform the Senate that
John B. Floyd, the late Secretary of the War Department, resigned that
office on the 29th day of December last, and that on the 1st day of
January instant Joseph Holt was authorized by me to perform the duties
of the said office until a successor should be appointed or the vacancy
filled. Under this authority the duties of the War Department have been
performed by Mr. Holt from the day last mentioned to the present time.
The power to carry on the business of the Government by means of a
provisional appointment when a vacancy occurs is expressly given by the
act of February 13, 1795, which enacts--
That in case of vacancy in the office of Secretary of State,
Secretary of the Treasury, or of the Secretary of the Department
of War, or of any officer of either of the said Departments whose
appointment is not in the head thereof, whereby they can not perform
the duties of their respective offices, it shall be lawful for the
President of the United States, in case he shall think it necessary,
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: _Provided_, That no one vacancy shall be
supplied in manner aforesaid for a longer period than six months.
It is manifest that if the power which this law gives had been withheld
the public interest would frequently suffer very serious detriment.
Vacancies may occur at any time in the most important offices which can
not be immediately and permanently filled in a manner satisfactory to
the appointing power. It was wise to make a provision which would enable
the President to avoid a total suspension of business in the interval,
and equally wise so to limit the Executive discretion as to prevent any
serious abuse of it. This is what the framers of the act of 1795 did,
and neither the policy nor the constitutional validity of their law has
been questioned for sixty-five years.
The practice of making such appointments, whether in a vacation or
during the session of Congress, has been constantly followed during
every Administration from the earliest period of the Government, and its
perfect lawfulness has never to my knowledge been questioned or denied.
Without going back further than the year 1829, and without taking into
the calculation any but the chief officers of the several Departments,
it will be found that provisional appointments to fill vacancies were
made to the number of 179 from the commencement of General Jackson's
Administration to the close of General Pierce's. This number would
probably be greatly increased if all the cases which occurred in the
subordinate offices and bureaus were added to the count. Some of them
were made while the Senate was in session; some which were made in
vacation were continued in force long after the Senate assembled.
Sometimes the temporary officer was the commissioned head of another
Department, sometimes a subordinate in the same Department. Sometimes
the affairs of the Navy Department have been directed _ad interim_ by a
commodore and those of the War Department by a general. In most, if not
all, of the cases which occurred previous to 1852 it is believed that
the compensation provided by law for the officer regularly commissioned
was paid to the person who discharged the duties _ad interim_. To give
the Senate a more detailed and satisfactory view of the subject, I send
the accompanying tabular statement, certified by the Secretary of State,
in which the instances are all set forth in which provisional as well as
permanent appointments were made to the highest executive offices from
1829 nearly to the present time, with their respective dates.
It must be allowed that these precedents, so numerous and so long
continued, are entitled to great respect, since we can scarcely suppose
that the wise and eminent men by whom they were made could have been
mistaken on a point which was brought to their attention so often. Still
less can it be supposed that any of them willfully violated the law or
the Constitution.
The lawfulness of the practice rests upon the exigencies of the public
service, which require that the movements of the Government shall not be
arrested by an accidental vacancy in one of the Departments; upon an act
of Congress expressly and plainly giving and regulating the power, and
upon long and uninterrupted usage of the Executive, which has never been
challenged as illegal by Congress.
This answers the inquiry of the Senate so far as it is necessary to show
"how and by whom the duties of said office are now discharged." Nor is
it necessary to explain further than I have done "how, when, and by what
authority" the provisional appointment has been made; but the resolution
makes the additional inquiry "_why_ the fact of said appointment has not
been communicated to the Senate,"
I take it for granted that the Senate did not mean to call for the
reasons upon which I acted in performing an Executive duty nor to demand
an account of the motives which governed me in an act which the law and
the Constitution left to my own discretion. It is sufficient, therefore,
for that part of the resolution to say that a provisional or temporary
appointment like that in question is not required by law to be
communicated to the Senate, and that there is no instance on record
where such communication ever has been made.