SUBSTITUTION OF ADJUTANT-GENERAL THOMAS AD INTERIM.
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becomes more apparent, when it is understood that this very statute of 1795, on which the offender relies, was repealed by the statute of February 20, 1863,[203] passed in our own day, and freshly remembered.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.