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. ANDREW JOHNSON.

To the Senate of the United States:

WASHINGTON, February 25, 1868.

In further answer of the resolution of the Senate of the 13th of January last, relative to the appointment of the Hon. Anson Burlingame to a

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 great, and, indeed, may be greater in case Before it be held, therefore, that the ove cases of removal is abrogated by succeed ought to appear. So wholesome a powe away by loose implication.

It may be, however, that in this as 1: doubts may arise. It is confessed!" on. able questions which arise in the constr a question I have fallen into an erroneor it should be characterized as a violation

I have deemed it proper, in vindicatiesidered it my duty to take, to place t which I have based my action. Aktra.. member of my Cabinet that the entire te tional, and therefore void, and althou that opinion in the veto message whic gress when I returned the bill for recons making a removal of any officer contr and have only exercised that power: in my judgment, did not come with::: to proceed with the greatest circumsts. extreme and exceptional case carer have marked out for myself as a r laws, though passed over my objections In the present instance I have apta arbiter fixed by the Constitution r tions. To this course I have bec which rest upon me to sustam committed to my hands.

Whatever may be the consequen not allow them to prevail agains. and so imperative. If what wafully advised when I removed 11 trust committed to my hands m not have hesitated. Actuate. character, I earnestly protest a charges me in what I have done laws of the United States.

To the Senate of the United S

In further answer of the Tem

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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. 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. ANDREW JOHNSON.

To the Senate of the United States:

WASHINGTON, February 25, 1868.

In further answer of the resolution of the Senate of the 13th of January last, relative to the appointment of the Hon. Anson Burlingame to a