It will be remembered that in the Tenure-of-Office bill as it originated in the Senate the members of the Cabinet were entirely excepted from its operation; that the House in passing the bill included them; that the Senate would not agree to their inclusion; that the bill was then sent to a conference committee; that this committee invented the compromise contained in the proviso; that this proviso was understood to give to each President the power to choose his own Cabinet officers once during his term, and therefore to remove any Cabinet officer not originally appointed by him, but holding under a commission from a former President, and remaining in office only by the sufferance of the existing President; that this was especially the true meaning of the proviso in regard to those Cabinet officers then in office, but who had been appointed and commissioned by Mr. Lincoln during his first term to hold during the pleasure of the President; and that it was upon this explanation of the meaning of the proviso that the Senate voted the resolution of the conference committee.
From all this it is entirely clear that the President had the legal power to remove Mr. Stanton, no matter whether the Tenure-of-Office Act was constitutional or not, simply because his case was excepted by the proviso in the first article in the Act from the operation of the Act, and was left to the operation of the laws in existence at the time the Act was passed. There is little question now that that Act was not in accordance with a fair interpretation of the Constitution, but it was not at all necessary to hold that view in order to clear the President of the accusation of having violated the Constitution and the laws of the land.
{ 186} The law in reference to the _ad interim_ appointment, or designation, of General Thomas was equally plain to the impartial eye. The Constitution provides only for vacancies that may happen during the recess of the Senate, and empowers the President to fill all such by granting commissions which shall expire at the end of its next session. By an act of May 8th, 1792, Congress empowered the President, in case of the death, sickness, or absence from the seat of government, of the Secretary of State, the Secretary of the Treasury, or the Secretary of War, whether these events should occur during a session, or a recess, of the Senate, "to authorize any person or persons, 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 should cease."