Reconstruction and the Constitution, 1866-1876

by John William Burgess

The law governing the President's case was perfectly clear to anyone who could divest himself of political prejudice and of personal

The law in
the case.

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.

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."

Another act of Congress of February 13th, 1795, empowered the President, in case of vacancy from any cause in the offices of Secretary of State, Secretary of the Treasury, or Secretary of War, happening either during a recess or a session 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 such vacancy be filled," provided, however, that no one vacancy should be supplied in that manner for a longer time than six months.

It will be seen that neither of these statutes provided for the temporary filling of vacancies in any of the Departments, except those of State, the Treasury, and War. In practice, however, the Presidents have followed the analogies of the law of 1795, when it became necessary, in their opinion, to make a temporary designation in the other Departments. On the 22d of September, 1862, President Lincoln appointed J. B. L. Skinner Postmaster-General ad interim. It was Mr. Lincoln himself who called the attention of Congress to the fact that he had no literal legal authority for this, and who on January 2d, 1863, asked Congress to extend the Act of May 8th, 1792, so as to cover the cases of the other Departments, and empower the President to make ad interim appointments to fill vacancies in these Departments happening on account of death, sickness, or absence from the seat of government. Why the President did not ask for the extension of the Act of February 13th, 1795, which covered all vacancies happening from whatever cause, instead of the Act of 1792, which covered those only which might happen from death, sickness, or absence from the seat of government, we do not know. We only know that in January, 1863, both the President and Congress were greatly pressed by the exigencies of the war, and did things generally in haste and without much consideration. In answer to the President's suggestion, Congress passed the Act of February 20th, 1863, extending the Act of 1792 so as to cover all the executive Departments in the cases of vacancy provided for in that Act, viz., by cause of death, sickness, or absence from the seat of Government—adding resignation—and limiting the President, however, in these appointments to persons already officers in one or the other of the Departments, and providing that no one vacancy should be so supplied for a longer period than six months. The vacancies which might happen from expiration of term or by removal were not at all provided for by the Act of 1863; and as the Act of 1863 did not expressly repeal the Act of 1795, but only declared that "all acts and parts of acts inconsistent with this act are hereby repealed," the Act of 1795 remained in force as to all vacancies caused by expiration of term or by removal, whether happening during a recess or a session of the Senate.