That under the Constitution and laws of the United States the President
has no power to remove the Secretary of War and designate any other
officer to perform the duties of that office _ad interim_.
As to the question of power under the Constitution, I do not propose at
present to enter upon its discussion.
The uniform practice from the beginning of the Government, as
established by every President who has exercised the office, and the
decisions 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 President 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 August 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 appointed 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, whenever 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.
It is clear that this act, passed by a 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, recognizes
it as existing in the Executive alone, without the concurrence of the
Senate or of any other department of the Government. Furthermore, this
act does not purport to confer the power by legislative authority, nor
in fact was there any other existing legislation through which it was
bestowed upon the Executive. The recognition of the power by this act is
therefore complete as a recognition under the Constitution itself, for
there was no other source or authority 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 2d 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 the advice and consent of the Senate, and every
person who shall hereafter be appointed to any such office, and shall
become duly qualified to act therein, is and shall be entitled to hold
such office until a successor shall have been in like manner appointed
and duly qualified, except as herein otherwise provided: _Provided_,
That the Secretaries of State, of the Treasury, of War, of the Navy,
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 by the law creating 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
removal, and to require for such removal the concurrent 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
prescribing 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 enumerated officers, the proviso takes from the
President the power of removal except with the advice and consent of the
Senate. By its terms, however, before 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 of 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 Senate. 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 is deprived of 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 principal 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 Cabinet,
embracing the seven officers designated in the first section, the act
takes from me the power, without 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 officers 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 whom
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 appointed 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
remove Mr. Stanton after permitting him to remain a period of two weeks,
because he was not appointed 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 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 constitutionality were well settled and were sustained
by every member of my Cabinet, including Mr. Stanton himself. Upon the
question of constitutionality, each one in turn deliberately advised me
that the tenure-of-office act was unconstitutional. Upon the question
whether, as to those members who were appointed by my predecessor,
that act took from me the power to remove them, one of those members
emphatically stated in the presence of the others sitting 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 fortified by my constitutional advisers. I have therefore sought
to bring the 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
say 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 understand to be still
in force.
The legislation upon the subject of _ad interim_ appointments 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 8, it is provided that in case of a
vacancy occasioned by death, absence from the seat of Government, or
sickness of the head of the War Department the President may authorize
a person to perform the duties of the office until a successor is
appointed or the disability removed. The act, it will be observed, does
not provide for the case of a vacancy 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 February, 1863, by the
first section of which provision is again made for a vacancy caused by
death, resignation, absence from the seat of Government, or sickness 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 authorize the head of any other Executive Department, or other
officer in either of said Departments whose appointment is vested in
the President, at his discretion, to perform the duties of the said
respective offices until a successor be 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 term 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 removal. It has reference altogether to vacancies arising
from other causes.
According to my construction of the act of 1863, while it impliedly
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 expressly
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 temporarily a vacancy occasioned by removal as he has to supply
a place made vacant by death or the expiration of a term. If, for
instance, the incumbent of an office should be found to be wholly unfit
to exercise its functions, and the public service should require his
immediate expulsion, a remedy should exist and be at once applied, and
time be allowed the President to select and appoint a successor, as is
permitted him in case of a vacancy caused by death or the termination of
an official term.
The necessity, therefore, for an _ad interim_ appointment is just as
great, and, indeed, may be greater in cases of removal than in any
others. Before it be held, therefore, that the power given by the act
of 1795 in cases of removal is abrogated by succeeding legislation an
express repeal ought to appear. So wholesome a power should certainly
not be taken away by loose implication.
It may be, however, that in this, as in other cases of implied repeal,
doubts may arise. It is confessedly one of the most subtle and debatable
questions which arise in the construction of statutes. If upon such a
question I have fallen into an erroneous construction, I submit whether
it should be characterized as a violation of official duty and of law.
I have deemed it proper, in vindication of the course which I have
considered it my duty to take, to place before the Senate the reasons
upon which I have based my action. Although I have been advised by
every member of my Cabinet that the entire tenure-of-office act is
unconstitutional, and therefore void, and although I have expressly
concurred in that opinion in the veto message which I had the honor
to submit to Congress when I returned the bill for reconsideration,
I have refrained from making a removal of any officer contrary to the
provisions of the law, and have only exercised that power in the case of
Mr. Stanton, which, in my judgment, did not come within its provisions.
I have endeavored to proceed with the greatest circumspection, and have
acted only in an extreme and exceptional case, carefully following the
course which I have marked out for myself as a general rule, faithfully
to execute all laws, though passed over my objections on the score of
constitutionality. In the present instance I have appealed, or sought
to appeal, to that final arbiter fixed by the Constitution for the
determination of all such questions. To this course I have been impelled
by the solemn obligations which rest upon me to sustain inviolate the
powers of the high office committed to my hands.
Whatever may be the consequences merely personal to myself, I could not
allow them to prevail against a public duty so clear to my own mind, and
so imperative. If what was possible had been certain, if I had been
fully advised when I removed Mr. Stanton that in thus defending the
trust committed to my hands my own removal was sure to follow, I could
not have hesitated. Actuated by public considerations of the highest
character, I earnestly protest against the resolution of the Senate
which charges me in what I have done with a violation of the
Constitution and laws of the United States.