Page images


[ocr errors]


until the Senate should meet) to the office, Mr. HOWE. The Senator will allow me to to some extent prevails in some of the Departments and his commission dates from confirmation, explain. The question upon which he and I

of the Government, of appointing officers to fillvacan

cies which have not occurred during the recess of and this designation that he had given him a would differ, I presume, is whether the exist Congress, but which existed at the preceding session commission to expire at the end of the session ing vacancy was occasioned by the displace of Congress, is in accordance with the Constitution, goes for nothing; that is the end of it. ment of Mr. Stockton. My own impression is

and if not, what remedies may be applied.” Mr. COWAN. Is he not a good postmaster that the vacancy which exists is a vacancy My friend from Michigan, '[Mr. HOWARD,] until the end of the session, even though his which occurred by the expiration of the term

who was at that time a member of the commitname should never be sent in and somebody of Mr. Ten Eyck. If that occurred during the

tee, wrote an elaborate report, which I hold in else's should be sent in?

session of the Legislature, the Governor can my hand, on this subject, in which he reviews Mr. TRUMBULL. It is not an appointment not appoint, but if it occurred during the

the opinion of Attorney General Wirt. He at all. It is a person acting in that place by vir

quotes from him the very same language the tue of the power vested in the Constitution. Mr. TRUMBULL. But there has been an Senator from Maryland has quoted to-day, and Mr. COWAN. The word “fill" is used intervening session of the Legislature, if it did

also the opinion of other Aitorneys General, instead of “appoint." occur during the recess.

and comes to the conclusion, in which the com Mr. TRUMBULL. Yes, sir; and there is Mr. HOWE. That vacancy we have decided

mittee was unanimous, that the vacancy must some meaning in that; there was a reason for never has been filled.

begin to exist during the recess of the Senate that; but the Attorneys General say that the Mr. TRUMBULL. Does the Senator from

in order to authorize the President to fill it by President may fill any vacancy that exists dur Wisconsin hold, then, that after a Legislature giving a commission to expire at the end of ing the recess of the Senate. has intervened the Executive can then act?

the next session of the Senate. In commentMr. COWAN, Not " which happens." Suppose the vacancy did occur during the ing upon this opinion of Attorney General Mr. TRUMBULL. Well, sir, that is not recess of the Legislature; suppose a Senator

Wirt, the committee this report: the language of the Constitution, and that language gives no effect whatever to the words Legislature of the State from whence he came by tho substituted reading, happened to exist, for

the word 'happen' in the clausc. To say that an ** during the recess of the Senate.” If the meets, fails to elect a Senator, and adjourns, event which is to happen' during a given period of intention of the framers of the Constitution does the Senator from Wisconsin mean to say timo may logically be an ovent which does not haphad been that the President might fill any the Executive can then appoint? The Legis

pen during that period, but during another and an existing vacancy during the recess of the Sen lature of New Jersey has been together since

anterior period, seems to us to be a perversion of lan

guago. 'Happen to exist,' as here employed by Mr. ate or any vacancy which existed they would the expiration of the term .of Mr. Ten Eyck. Wirt, is plainly intended as tho equivalent of hap; have said so, but that is not what they have But there would be another and a conclusive

pen to be existing,' or 'in existence,' and is used said. They have said that he may fill up a

to imply (though it does not) a continuance or proanswer to the Senator's suggestion, and that longation of the event (the vacancy) from a point of vacancy that may happen during the recess of is this : Mr. Ten Eyck left no vacancy; Mr.

timo anterior to the recess. Now, it is the vacancy the Senate. These words “may happen dur Ten Eyck ended his term ; and it has been

that is to happen.' Certuinly any event which has

begun and become complete must be said to have ing the recess of the Senate'' are used in other

repeatedly held that the Governor cannot happened. But if a vacancy once exists, it hasin law portions of the Constitution. By reference to appoint to an original term. That is not a happened; for it is in itself an instantaneous event. that clause of the Constitution of the United vacancy happening. That is provided for by

It implies no continuance of the act that produces it,

but takes effect, and is complete and perfect at an States which authorizes the appointment of the Constitution in the clause which declares indivisible point of time, like the beginning or end Senators, it will be found that the Constitution that each State is entitled to two Senators of a recess. Once in existence, it has happened, and declares that the Senate of the United States elected for the term of six years; and no Gov

the mere continuance of the condition of things

which the occurrence produces cannot, without conshall be composed of two Senators from each ernor has ever undertaken to appoint a Sen founding the most obvious distinctions, be taken or State, chosen by the Legislature thereof for six ator for six years. Somebody must first be treated as the occurrence itself, as Mr. Wirt scems to years? What else does the Constitution pro

have done. The words during their recess, are put into the office, must have commenced the vide?

plainly intended to qualify and limit the term 'lapterm, before a vacancy can happen; so that pen.' The vacancy is to happen during their recess. "And if vacancies happen by resignation or oth I think my friend from Wisconsin will find Now, if the vacancy the President is authorized to erwise during the recess of the Legislature of any

fill may (as Mr. Wirt and his successors contend) take State, the Executive thereof may make temporary upon investigation that in both points of view

place indifferently during the recess or during the appointments until the noxt meeting of the Legisla the Executive in the case I have supposed session, is it not evident that no meaning or effect would have no authority to fill the vacancy.

whatever is given to the words during their recess ?' The language is precisely the same,"if vacan Now, sir, the language, as I said in regard

Arc not those words practically expunged from the

Constitution? cies happen during the recess of the Legisla to the filling of a vacancy in the case of a "Again, we see no propriety in forcing the languago ture." Has it not always been held in this Senator, is the same in the Constitution as it from ite popular meaning in order to meet and fulfill body that the vacancy must happen during the is in regard to the filling of a vacancy in the

ono confessedly great purpose, (the keeping the offico

filled,) while there is plainly another purpose of equal recess of the Legislature or it did not authorize case of an officer of the United States. They | magnitude and importance (fitting qualifications) the Governor to appoint? Has not that been must both happen during recess of the author attached to and inseparable from the former. In such decided over and over again, that the Execu ity which has the right to make the appoint

a case the argument ab inconvenienti has no force,

because the anticipated evils on the one hand are tive of a State cannot appoint a Senator to fill a ment; in the one case the recess of the Legis- counterpoised by those on the other. vacancy in this body unless the vacancy hap lature of the State, and in the other the recess

" But this forced and unnatural interpretation pened during the recess? Is not the fact that of the Senate of the United States. If it were

becomes inore manifest in its results. Those results

would quickly open the way to a practical deprivait occurs during the recess of the Legislature | not so, it would be very easy to dispense with tion of all power of the Senate overexecutive appointnecessary to authorize the Executive to ap

that provision of the Constitution which has ments. For if the President may in the recess appoint point? That has been decided over and over

to and fill an office which during a session of tho Senvested the appointing power of all officers in

ato was vacant, he may omit to make any noininaagain, and is the seitled construction of the the President by and with the advice and con tion at a subsequent session, and at the close of it Constitution of the United States, admitted by sent of the Senate, because the President could

again appoint him under the idea of filling a vacancy, everybody. How often has it happened that

and so on from session to session. In the hands of make appointments (if you call the filling up

an ambitious, corrupt, or tyrannical Executive, this States have been partially unrepresented in of a place by a commission an appointment) use of the power would soon bring about the very this body just from the fact of the Legisla the moment the Senate adjourned, and con

state of things which the Constitution so carefully ture's failing to elect. We have one such case

guards against, by requiring, in express terms, that tinue in that way to make them as often as the

the advice of the Senate shall first be taken, and its Dow from the State of New Jersey. The Senate adjourned, and keep in oflice whomso consent obtained before an appointment shall be Legislature was in session when a vacancy ever he pleased, which would be manifestly

made. We do not hesitate to say that this great safeoccurred here by the decision of the Senate

guard of the public rights, interests, and peace is a perversion of the meaning of the Constitu

practically prostrated and destroyed by the insidious that Mr. Stockton was not entitled to his seat; tion.

and, to our minds, totally unfounded construction and the Legislature has since adjourned. Does This whole question was submitted to the

which has been forced upon the clause. anybody suppose that the Executive of New | Committee on the Judiciary in 1863. It is no

"The committee, in considering the subject, havo

not overlooked the subsequent opinion given by Mr. Jersey has a right to fill that vacancy? The new question, and the Senator from Kentucky, Attorney General Taney, in 1832, and that of Mr. Senator from Wisconsin (Mr. HOWE] says he if he will look into the subject, will find that

Legaró, in 1811. Although the latter thinks the quesdoes.

This it is not an attack upon the Executive.

tion one of no difliculty, and it is, in his mind, so plain

as to 'admit of no doubt, whether it be considered Mr. HOWE. You say the vacancy hap- || is no new proposition in this body.

as one of pure legal science or ay matter of public pened by the removal of Mr. Stockton. Mr. GUTHRIE. The Senator will permit | ground taken by Mr. Wirt, that the word 'happen'

expediency,' he carefully avoids putting it upon the Mr. TRUMBULL. Yes; and I say, does I did not charge it as any attack

upon may be construed to mean "happen to exist;' which, anybody contend that the Executive of the the President. I charged it as an attack upon as was too plain, at once revolutionized not only the State has authority to fill that vacancy? some people who had been nominated before letter but the apparent intention of the clause; but, Mr. HOWE. Yes, sir; I say it.

with a far more adventurous spirit of interpretation, this body and have been rejected or are puts the claim of power upon the provision that the Mr. TRUMBULL. It is well settled the || likely to be rejected or not acted upon.

President 'shall take care that the laws be faithfully other way; and I did not suppose that any Mr. TRUMBULL. I have no such otive

executed."" body held that doctrine. It has been decided, || governing me. I speak of the construction Mr. Legaré puts it upon that clause of the I do not know how many times, but a number of times, where the question has been brought | stitution of the United States, without reference which I believe to be the true one of the Con-Constitution, as if under that the President of

the United States derived any authority to up in the Senate, and it has always been de

to anybody who has been before the Senate or appoint men to office in a different mode from cided that the Executive cannot appoint a Sen is likely to be before the Senate. In the Thirty that specifically and in the very terms provided ator to fill a vacancy which existed while the Legislature was in session.

Seventh Congress this resolution was submitted by the Constitution itself. I will not read the to the Committee on the Judiciary:

whole of this report though it argues more Mr. SUMNER. There is another element in the New Jersey case.

" Rerolded, That the Committee on the Judiciary | clearly than I can do in any extemporaneous

be instructed to inquiro whether the practice which ll remarks, the meaning of this clause of the 39th Cong, Ist Sess.-No. 133.


Constitution, and comes to the conclusion that vacancy during the recess of the Senate and || intend to say a word in this discussion, and if I the vacancy must begin to exist during the the Senate adjourns without having acted upon had not spoken out of meeting I should not be recess of the Senate in order to authorize the it the President cannot thereafter fill it. called upon to do so. I did remark, intending President to issue a commission. In reply to Mr. TRUMBULL. I did not say that. it as a side remark to the Senator from Illithe question of inconvenience which was put Mr. HENDERSON. Then I misunderstood nois, that I held that if the vacancy which by the Senator from Wisconsin, [Mr. Doo the Senator.

existed in the representation from New Jersey LITTLE,] the committee show that there is no Mr. TRCMBULL. I said that while the was not occasioned by the displacement of Mr. force in that, because the same inconvenience || Senate was in session if a vacancy occurred it Stockton, it might be filled by the Governor arises now, when the Senate is in session. had never been pretended that the President of New Jersey. I am not called upon to defend Nobody will pretend that the President can could fill by appointment that vacancy without that proposition, not having very well considissue a commission to fill an office while the the advice and consent of the Senate while we ered it. The Senator, however, quoted me as Senate is in session. Suppose that the post were in session.

making the statement, and I will say now that master in the city of Washington dies to-day, Mr. COWAN. Even temporarily?

I do hold that the vacancy which exists in the does anybody pretend to say that the Presi Mr. TRUMBULL. Even temporarily; and representation of the State of New Jersey here dent can issue a commission to a man to fill I instanced a case. Suppose to-day that the is a vacancy which happened, not in consehis place to-morrow?

postmaster in Washington city were to die; I quence of the vote of the Senate upon the right Mr. COWAN. Yes.

undertook to say that the President would have of Mr. Stockton, but happened by the expiraMr. TRUMBULL. Do I understand the no authority temporarily to appoint a successor tion of the term of service of Mr. Ten Eyck, Senator from Pennsylvania to say that he can without the advice and consent of the Senate the last Senator chosen by the Legislature of do that when we are in session?

while we are here, and nobody ever contended that State to sit in this body.. How the fact is Mr. COWAN. Yes. that he would.

- whether that term expired during the recess Mr. TRUMBULL. Well, sir, I undertake Mr. HENDERSON. I am not aware of any of her Legislature, or during the term of the to say that there is not an instance in the his. | opinion on that point, and I agree with the sitting of the Legislature-I do not know. I tory of the Government where ever an attempt Senator in regard to it as a question of law. supposed it happened during the sitting of the was made to do it. Nobody ever pretended

Mr. TRUMBULL. The Constitution is very Legislature, and therefore was a vacancy to that it could be done, and there is not an clear. The President has no authority to till be filled by the Legislature, and not by the instance of its having been done in the history an office that becomes vacant during the session appointment of the Governor; but if it hap; of the Government. I venture to say that of the Senate. It is only when the vacancy hap pened during the recess of the Legislature, I where a death occurs while the Senate is in pens during the recess that he can give a tem think it is a vacancy to be filled by the Govsession the office cannot be filled in any way porary commission; and if you construe those ernor, and that his authority to fill it is not until the President nominates to this body and words, as the Attorneys General have done, to abrogated by the fact that a session of the we advise and consent to the nomination. I mean a vacancy existing during the recess, Legislature has intervened, inasmuch as that undertake to say it has never been done, and you cannot by possibility extend them, as I Legislature did not fill the vacancy. I have no President has ever attempted to do it. say, by any legitimate construction, to a vacancy not examined the question at any length, and

Mr. COWAN. What is to become of the which occurs while the Senate is in session; therefore am not prepared to argue it. office in the mean time?

and hence we have provided in our laws for Mr. EDMUNDS. I wish to call the attenMr. TRUMBULL. The office is vacant cases of this kind, by providing that the chief tion of the Senate, and of my friend from Wisuntil the President nominates, and by and with clerk, or some designated officer, shall take consin, to the case of Mr. Phelps, a Senator the advice and consent of the Senate appoints, || charge of the papers, and perform the duties from Vermont in 1853. A vacancy in the repsome one to fill it. There is no pretense of until an appointment is made. That is some resentation from Vermont occurred by the death any authority in the Constitution for the Pres. times done when a vacancy happens during the of Mr. Upham. Mr. Phelps was appointed by ident to appoint a man to an office while the recess. I think the collector in the city of the Governor to fill the vacancy; and the LegisSenate is in session; that is, to an office that New York died during the recess of Congress, || lature at its next session, on a political contest, requires the advice and consent of the Senate; and by a provision of our law some person in failed to agree upon any person to fill the unexI am not speaking of inferior officers whom the || that office-I think without appointment, but I pired term. Mr. Phelps again took his seat in law has authorized the President to appoint am not sure as to that point; an appointment ihe Senate in the December following-Decemwithout the advice and consent of the Senate. may have been made there—took charge of | ber, 1853-and the question arose as to whether There is no pretense that he can do it, and the oflice for the time being. There is a case the appointment of the Governor had expired, during the nine months we are in session if a of the same kind in the city of Chicago. Mr. or whether the Governor had further power, judge of a court, if a postmaster, if a receiver Haven, the collector of that port, died since and it was decided after full debate and not of public lands, if any officer dies or resigns | Congress assembled. One of the officers under upon political grounds, as the Senate was divided the office is necessarily vacant until by the ad him as cashier or chief clerk

irrespective of politics upon the question, by a vice and consent of the Senate some person is Mr. COWAN. Usually the surveyor of the vote of 26 to 12, that Mr. Phelps was not enappointed to fill that place. port.

titled, under the appointment of the Governor, Mr. HENDRICKS. For my personal sat

Mr. TRUMBULL. I think not the surveyor to sit. I believe that has been followed since. isfaction I wish to ask the Senator if we have of the port, but some person connected with Mr. HOWE. I was not aware of any decisgot to stay here nine months this session. There the office has been discharging the duties for ion on the point. The opinion which I subis an anxious inquiry about the time when we several weeks. That is a provision to guard | mitted to the Senator from Illinois was an offare likely to adjourn. The Senator suggests || against this very difficulty, but the President hand opinion. The language of the Coustitunine inonths, and I want to know if that is the has not appointed that person collector, nor tion is that “if vacancies happen by resignation time we are to stay here. issued any commission to him.

or otherwise, during the recess of the LegislaMr. TRUMBULL. We have sometimes Mr. MORGAN. He did in the case in New ture of any State," which I understand was the staid here nine months. I was speaking of York.

case in Vermont in the instance alluded to, a hypothetical case; I supposed an instance of Mr. TRUMBULL. Mr. King died during "the Executive thereof may make temporary the postmaster in Washington dying. I hope | the recess, and the President had authority to appointments until the next meeting of the he is to live many years, and I hope that we appoint in that case. This, then, I think is a Legislature, which shall then fill such vacanmay have no occasion to confirm anybody to perfect answer to the suggestion made by the cies." I suppose the decision alluded to by the fill the office in consequence of his death, Senator from Wisconsin. He supposed the case Senator from Vermont turned upon the force either during this or any subsequent session as of an officer dying on the last day of the ses of this last clause of the section, and it may long as the Senator from Indiana and myself sion of the Senate, and, before we had any be correct. My own opinion was that if it was a may be here. I spoke of what would have to information of it, the Senate adjourned; and vacancy that happened in any way during the be done in consequence of his decease. But then, said he, the President, according to this recess of the Legislature, it was a vacancy to the Senator is well aware that sessions of Con- | construction, could not fill that place. I answer be filled by the Executive, and to be kept filled gress do sometimes last nine months. The first to that, if on the first Monday of December, | by the Executive until the Legislature shall session of Congress in which I had the honor when we meet here, an officer dies, the Presi have discharged the duty imposed upon it here. to serve did not adjourn, I think, until Sep dent cannot fill that place without our advice || If the decision of the Senate has been to the tember, and we had inet in the December pre and consent until we adjourn, and I say he can contrary, I am rather inclined to believe that vious.

not do it then. I say the vacancy happened || the decision of the Senate will stand, and that Mr. HENDERSON. With the Senator's | during the session of the Senate, and not during my own opinion will be overruled. permission I will state that his whole argu its recess, and he can never fill it except by the Now, Mr. President, I wish to say one word ment, although of course it is in support of advice and consent of the Senate.

upon the pending question which I should not the proposition, goes much further than I pre I did not mean to take up so much time in have said had I not taken the floor to explain tend to go. I may concur with him in many | arguing this proposition. I am aware that it myself. Touching the constitutional question of the positions taken by him, but I have drawn goes further than the Senator from Missouri which is argued here as if it were involved in the amendment with a view to the opinions of has provided, and I am for going further if it the pending amendment, I have to say, in the • the Attorneys General, taking it for granted is necessary; I am for providing that no man first place, that it does not seem to me that that they were the law. I concur with him in shall receive compensation in any shape or there is any such constitutional question inmany of the points made rather than with the form out of the money of the people for exer volved; but if it be, then I hold that under the Attorneys General, but he is mistaken when cising the duties of an office to which he has first clause of this portion of the Constitution he supposes that no opinion has ever been given no constitutional right.

which has been referred to, the Senate is made to the point that where the President fills & Mr. HOWE. Mr. President, I did not by the Constitution a constituent portion of the

[ocr errors]


appointing power. The language is, speaking fuse to pay any postmaster or any other officer. the Senato shall after such adjournment be appointed of the President, thatOf course they act at their peril. If they act on

to the same office, no money shall be drawn or used “He shall nominate, and by and with the advice reasons which are not satisfactory to the coun

as aforesaid to pay his salary until his appointment

shall have been consented to by the Senate at its and consent of the Senate shall appoint, embassadors, try, they will suffer for it as they should ; but succeeding session. other public ministers and consuls, judges of the Supreme Court, and all other officers of the United they are the judges of the question what offi

Mr. HOWARD. Mr. President, there are States whose appointments are not hercin otherwiso cers are to be paid, what offices are to exist

some things in regard to offices which I regard provided for, and which shall be establishod by || independently of the othices vamed in the Con as certain and settled, and the first is, that no stitution itself, how much each one of those

office can exist in the United States except He shall nominate, and by and with the officers should receive and when they are to under a law of the United States. The second advice and consent of the Senate shall ap receive it. It is in the exercise of this author

is, that the President of the United States has point, all these officers. I cannot have a ity that we are called upon to adopt this amenddoubt but what the framers of this article, the

the power of nominating candidates for office ment. It is by virtue of this authority that I

to the Senate, but that he has not the power men who employed this language, meant to say take it we can clearly adopt this amendment of appointing them to oflice except by and with to the President not merely that he shall pre without violating the Constitution. The ques the advice and consent of the Senate, unless sent a man to the Senate for an office, but that tion will still remain whether the fact that an

in cases of vacancy that may happen during he shall-nominate a man who shall be approved || officer has been nominated and has been re

the recess of the Senate. by the Senate, and with the approval of the jected by the Senate, the coördinate branch of

I am aware, and so are we all, that the pracSenate shall appoint the men to fill these the appointing power, is of itself a suflicient

tice has been very common heretofore during offices. In my judgment, the President does reason for refusing to pay such an individual.

the existence of the Government for the Presnot discharge the duty which this clause of the For myself, holding that it is a sufficient rea ident of the United States to assume to fill section devolves upon him when he has simply son, I shall vote for the amendment. I do not

vacancies by way of giving commissions where sent a name to the Senate. His duty is dis think the Legislature has a right to appropriate vacancies have occurred, not during the recess charged only when he shall have obtained the a dollar of the public funds for the payment of of the Senate, but during the session of the eonsent of the Senate to the nominee whose an officer who the Senate has said is unfit to

Senate; and it was on that particular point name he shall have sent in. hold office.

that the Senate saw fit to instruct the Judiciary I know there have been industrious efforts Mr. HOWARD. I do not know, Mr. Pres Committee a few years ago to give their opinmade for very many years during our history || ident, whether I perfectly understand the pro ion, and my friend from Illinois has read to the to persuade the country that here was a prerog, visions of this amendment. I beg leave to call Senate the result of their consideration on that ative vested in the President of the United the attention of the Senator from Missouri'to

subject. States which made him really the appoint. it. The amendment speaks of all cases in Now, sir, I hold that it is the plain intention ing power, and which subjected every officer which persons have been appointed during the of the Constitution that where the President in the United States to his control. Such may recess or during the session of the Senate as has authority to grant commissions for the purbe the effect of the interpretation placed upon assistant postmaster or other civil officer under this clause of the Constitution by the Attorney

pose of filling a vacancy, that vacancy must the Government,'' &c. Does he intend to say have begun to exist, not during the session of General from whose opinion the Senator from that where there has been a regular commis the Senate, but after the close of the session Maryland bas read. I am inclined to thinksion issued to fill a vacancy that occurred dur of the Senate and during the recess of the that is the effect which would follow if that | ing the recess of the Senate no money shall be Senate. I am quite aware that the Attorneys interpretation were correct. That it is not

paid in compensation for services rendered General of the United States, and I think percorrect seems manifest from the plainest and under that commission in any case?

haps without any difference of opinion among most natural interpretation of the words em Mr. HENDERSON. No. I mean to per them as to the result at which they have arployed. But inasmuch as a vacancy may hap mit the appointment to hold good until the rived, have entertained the idea that a vacancy pen when there is no Senate in being to give adjournment of the succeeding session of the occurring during the session of the Senate may its assent, there is another provision incorpo- || Senate; and after the last day of the succeed be filled by commission after the recess of the rated into the Constitution, and that provision, | ing session of the Senate I propose that he Senate has commenced. The Committee on I think, authorizes the President to commis shall not be paid. The Senator will see, by the Judiciary took this question into considersion and thereby to fill up a vacancy which || reading the whole clause, that I submit to the ation, and they held, and I think very properly happens during the recess of the Senate, which opinions of the Attorneys General, who hold held, that was a wrong and erroneous view of happens at a time when there is no Senate in

that appointments made under such circum the Constitution. The Constitution declares being to give its assent to a nomination. What

stances are good. Of course, in some cases, thatis the tenure of the commission granted by the the cases alluded to in the Constitution itself,

"The Presidentsball have power to fill up all vacanPresident under these circuinstances? The there will be no doubt; but the Attorneys Gen cies that may happen during the recess of the Senate, language of the Constitution is that it shall eral have carried that doctrine much further;

by granting commissions which shall expire at the expire at the end of the next session of the and I submitted to their opinions in the ab

end of their next session." Senate. If there had not been any usage to sence of the very able opinion that the Senator An eminent Attorney General of the United the contrary, which I believe there has been, I

himself has given on the subject, for I really | States, Mr. Wirt, I think, took very great libshould have supposed that a commission granted | did not have time to examine it, and was not

erties with this language when he held that the under these circumstances did confer an office aware that a report had been made until the word “happen" in its connection here may be upon the holder of the commission until the

other day; and I have not had time to examine so construed as to cover a case of vacancy where expiration of the next session of the Senate, it since. I submitted to the opinions of the the vacancy in the office had begun to exist and that any appointment made during the Attorneys General, and only carried it to the during the session of the Senate. That was next session of the Senate by a nomination of extent that I thought we properly could go

in the construction which he put upon that lanthe President would take effect from and after accordance with those opinions. The Senate guage-I think a very strained and untenable the expiration of the session of the Senate. If will see that it only proposes to deny the sal construction. The Attorney General, Mr. Lethere had not been a usage to the contrary, I ary after an adjournment of the Senate. Il garé, in 1841, was called upon to give an opinion should have supposed that was the true inter afterward inserted “after the expiration of upon the same question, and he held, not that pretation of this clause, but I believe the usage | thirty days;" and when the Senator from In the word “happen" may receive that broad is that this commission, which is granted to an diana proposed an amendment in the twelfth construction, not that it may be made in that officer in order to fill a vacancy happening | line I made another modification. If the Sen- connection to imply a continuation of an event, during the recess of the Senate, is vacated the ator from Michigan will permit me now to do

but that the President necessarily had this moment another individual or that same indi. so, I ask to withdraw the words "after the power to fill a vacancy that had occurred durvidual is nominated to the Senate and is con expiration of thirty days,” because they are ing the session of the Senate in virtue of his firmed by the Senate.

unnecessary now, since I submitted to the power to take care that the laws are executed But, Mr. President, whatever may be the amendment suggested by the Senator from --two very different sources of power. I do true interpretation of these clauses in the ConMaryland on the same subject.

not agree with either of them. "I think it is stitution, whether they give to the President

The PRESIDENT pro tempore. The amend

high time that the Senate of the United States the right to dispense with the authority of the ment is in the power of the mover, and those

should act upon this most grave and serious Senate altogether or not in making appoint- words will be stricken out.

subject. I do not admit that the practical conments, I take it there can be no manner of Mr. HOWARD. I ask, then, that the amend

struction thus given by the executive branch doubt that they do not give the President un ment be read as it now stands.

of the Government, for a long time, indeed, is limited control over the finances, the resources,

The Secretary read it, as follows:

the true and accurate construction to be given, the revenues of the country. It is, it seems to

and in saying this I am not unaware, I trust,

And be it further enacted, That in all cases in which me, optional with the Legislature how much persons have been or shall be appointed, either dur

of the great weight which such a long.continued they will pay the public servants, those of them ing the recess or sersion of the Senate, as assist practical construction of the language of the whose compensation is not fixed by the Conant postmaster or other civil odlicer under the Gov

Constitution is entitled to. Certainly very great ernment, whose appointments require the consent stitution, and when they will pay it, and what of the Senate, and whose appointments having been

inconveniences may arise, and often do arise, ones they will pay; and therefore it is that I submitted to the Senate have been rejected or not from a departure from the practical construcsaid at the outset that I did not think there

consented to before the adjournment thereof, no tion of the law; but in such cases as this it

money shall be drawn from the Treasury or used was any constitutional question really involved from any fund or appropriation made or created by seems to me that the language of the Constiin the amendment offered by the Senator from law to pay the salaries of such persons under such tution is too plain to be mistaken. The report Missouri. I take it there is no question but

appointments, or under any previous appointment from which the Senator from Illinois read con

to the same office, for services rendored after said what the Legislature may constitutionally re adjournment. And if any such person so rejected by

tains some further observations on this question


upon the

of convenience, and with the leave of the Sen been an opinion given by any incumbent of that he came into the body, and I was exceedingly ate I will read a few paragraphs:

office upon any question which he did not believe solicitous that it should turn out that there was “We are aware that this construction has been, to be in itself sound. It is possible that party no objection to the validity of his appointment. from time to time, sanctioned by Attorneys General, may have unconsciously influenced his judg- Judge Collamer died during the session of the and, as recently as 1855, by Mr. Cushing, and that

ment; but if it be true that officers of that kind | Legislature of Vermont; but the fact was not the Executive has, from time to time, practiced upon it. We are also aware of the great weight which might be influenced by party considerations, 'I known to the Legislature, and upon looking at such a continued practical construction is entitled to

suppose it is equally true that Senators of the the question with all proper solicitude, for the in considering the meaning and intent of a doubtful elauso in a public act. But we have not been able to

United States may unconsciously be influenced reason I have just stated, I found that it had convince ourselves that such is the character of the by like motives; that their opinions, therefore, been uniformly lield that the authority of the provision. We think the language too plain to admit are to be taken with some allowance on that Executive to filla vacancy did not depend upon of a doubt or to need interpretation; and where such is the case, the language must not be wrested from its

But the opinions which have been the mere fact of an existing vacancy, but denatural sense to avoid a supposed inconvenience. the subject of comment do not stand alone upon pended upon the existence of two facts: first,

And it is quite apparent, from all the arguments the authority of the eminent men by whom vacancy existing, and second, the knowledge of the Attorneys General, that the real foundation of their conclusions is the assumed inconvenience to

they have been given. They have had the of the vacancy being possessed by the Legislathe public service of permitiing an office to remain sanction of Congress, the sanction of this great ture. Our friend from Vermont was received vacant during the recess, where the vacancy has hap- || body, the sanction, of course, of the Presi without objection on the part of anybody. Does pened during the session and remains unfilled at its close.

dents who held that high office during the period any one doubt that he is entitled to his seat by **Cases, it is true, may occur, as they have occurred, that the opinions were pronounced, the sanc virtue of that executive appointment? And where a vacancy may subsist after the session in con tion of Washington, of Jefferson, of Madison, yet, without giving a liberal interpretation to sequence of the refusal of the Senate to consent to, or of its omission to act upon, a nomination; and

John Quincy Adams, of Monroe-men not the word “happen,” as it is found in that clause exactly the same inconvenience may result, as it has eminent on account of any military service, of the Constitution, he is not here by virtue of on numerous occasions resulted, from the omission but eminent for their legal knowledge as well a valid appointment. of the President to send in a nomination. It is also an inconvenience that a vacancy should continue for

as for their undoubted, and now, (however But there is a difference between the lanany length of time, whether occurring during the it might have been attempted to throw spots guage of that clause and the language of the session or the recess, and yet vacancies must, from the upon their reputation during the period some clause which is immediately before the Senate. very nature of the case, thus continue for a longer

of them held that high office,) now, in the The language of the clause before the Senate is : or shorter period. A similar inconvenience must necessarily have happened if the Senate had had no opinion of the world, spotless reputation; and “The President shall have power to fill up all vapower whatever over appointments, and occurs from until the learned Judiciary Committee of the cancies that may happen during the recess of the necessity in the most absolute Governments. It is unavoidable. All this, however, was clearly foresoen Senate upon the occasion adverted to by the

Senate, by granting cominissions which shall expire

at the end of their next session." by the frumors of the Constitution when they used honorable Senator, the chairman of that comthe language giving the power; and it strikes us as mittee, deemed it their duty to express a differ

The language of the corresponding clause in fur more rational to conclude that they regarded this temporary inconvenience as outweighed by the adent opinion, as far as I am advised the opinion

relation to the filling of vacancies in this body is:

"If vacancies happen by resignation or otherwise vantage they had secured by requiring all appoint- pronounced by the law ofiicers of the Govern

during the recess of the Legislature of any State, tho ments to office, except in cases of vacancy happening ment and acted upon by the several Presidents Executive thereof may make temporary appointin the recess, to receive the sanction of the Senate. The plan came as near to perfection as the nature of never was questioned.

ments until the next meeting of the Legislature, the case and the preservation of any effective power Now the honorable members tell us

which shall then fill such vacancy."

-paron the part of the Senate would admit."

ticularly the honorable member from Michigan, The appointment in that case terminates with Mr. President, I am for restraining, so far as who has just closed--that the language of the the beginning of the session of the next Legislais possible, the action of the executive branch Constitution is so plain that it admits of no ture; the appointments in the case under con. of the Government to appointments to oflice doubt. The honorable member risks a good sideration do not terminate at the meeting of the within the strict limits of the Constitution. I deal of his own reputation, high as that is, next session of the Senate of the United States, think that during the last year or two we have when he pronounces so authoritatively that the but continue until the termination of that seshad instances enough of an assumption on the question is free from all doubt, when from the sion. And there is a difference in another repart of the Executive to appoint to offices which beginning of the Government up to the period spect, a practical difference. Looking to the had not even been created by law, and unless when that report was made, founded

wholesome administration of the Government, the Senate shall interpose effectually, and at a hypothesis that there was no doubt, the opin. the Government can go on without the Senate timely moment, to interrupt this current of ion of every branch of the Government was being full. Whether Vermont, for example, was events it is impossible to tell to what evils it that the true interpretation of the Constitution represented as she is now represented, or was may not lead. I shall, with a great deal of was directly the reverse of what he supposes not represented until a Legislature met and pleasure, vote for the amendment of the Sena now to be its only admissible interpretation. should choose the same members or choose tor from Missouri, because I think there ought What is the inconvenience to arise from somebody else, was a matter, so far as the actto be just exactly that restraint imposed upon adopting the construction of the executive de ual administration of the Government was conthe appointing power.

partment of the Government? The honorable cerned, of little or no moment; but how is the Mr. JOHNSON. Mr. President, what I rise member supposes, and that is his proposition, executive branch of the Government to be carfor the purpose of saying is not to discuss the that the vacancy, if existing in point of fact for ried on upon any such doctrine ?. Your Secparticular amendment as now modified by the the first time during the actual session of the retary of the Treasury dies, dies this morning; mover of it, but with a view merely to state Senate, cannot be filled by the Executive if the you do not hear of it; you adjourn before notice the opinions which I entertain upon the ques

Senate fails to fill it. Now this may happen; of the fact reaches you; are the finances of tions discussed by the honorable member who this has happened: a man dies during the ses the Government to remain anadministered has just taken his seat, and by the chairman sion of the Senate; his death is not known to until we meet here next December? And so of the Judiciary Committee. The honorable | the President, is not known to the Senate; | in relation to all the other appointments. The chairman, at the same time saying that it but his death creates a vacancy, and if it can

laws cannot be executed without your execuwas not his purpose to weaken the authority not be filled one of two things will be the re tive officers; the judgments of your courts canof the Attorneys General, stated that perhaps | sult: that the office, however important it may not be enforced without your marshal; and if the their opinions were not entitled to the weight bo to the due administration of the Govern- Senate reject an appointment made by the Presthat should be otherwise accorded to them be ment, is to remain vacant for the eight or nine ident, or decline to act upon an appointment cause they held their office under the President, months that may elapse from the termination proposed by the President, and adjourn, are and they may have fashioned their opinions to of one session to the beginning of another, your courts to be practically closed? Certainly suit the views of the President.

or that the President must call the Senate that will be the result if it be true that in such Now, if the honorable member had had the together.

case there is no authority in the Executive to experience which at one time it was my good Does the honorable member mean to assert supply the vacancy unless the Senate shall be or bad fortune to have had, I am sure he would that in a case of that description the President called together again, and the praetical result not have indulged in a remark which was cal has no authority to appoint? If he will look might be that we might be called together from culated to reflect upon the independence of at these opinions he will find that in a case of month to month. The mischief arising from those who have heretofore filled that high office. that sort it never was doubted that the Presi- that, the inconvenience resulting from that, The Senate are aware, and the country is aware, dent had the authority to appoint; and the same the expenditure consequent upon that, is infithat in former days it was filled by the most principle has been adopted in relation to that nitely greater than to give the President the eminent men of the land; men as far incapable principle of the Constitution which relates to power to appoint a marshal or a Secretary of of being influenced by any political considera the filling of vacancies in this body. The lan the Treasury, and to have the judgments of tion, and certainly as far from being influenced guage in one respect is the same-if a vacancy the courts, in the case of the first of these offiby any opinion which the President might en happens during the recess of the Legislature cers, executed; and so in relation to all other tertain, as the honorable member from Illinois, the Governor is to appoint. The honorable departments of the Government. or anybody else, could be in any situation in member says that the uniform construction of But my friend from Illinois and I, and

per, which they might be placed. They are ap that clause has been that if in point of fact he haps for the same reason, have been very fond pointed under a law passed as far back as 1789 who was Senator ceases to be a Senator by death in past times of the niceties of special pleadfor the very purpose of being the legal advisers or by any other cause while the Legislature of ing, and he does not seem to have gotten rid of the President and of the several heads of his State is in session the place cannot be filled. of his love of them yet. He seems given over Departments. They are, therefore, qugsi ju. What is the case of my friend, the honorable to technicalities, and pushes them to an extent dicial officers, and as far as I am advised, with member from Vermont, [Mr. PoLAND?) in the construction of the Constitution even out any exception, from the time of their ap looked at it with some concern when I heard of further than I have heard them applied to the pointinent to the present hour, there never hås I his appointment. I knew his reputation before li construetion of a plea in abatement. Now,

we do.

what does he tell us? The power of appoint- | long."no" on that question. He says that the All that is clear. The Senator, of course, ment is not conferred upon the President; the words are not plain; but he will allow me to will not dissent from that. Then he comes to clause relied upon for the purpose of showing say, in reply, that to my apprehension they are the precise point: that he has any power of appointment was not plain. And I submit to the Senator that even "The terms, which may have happened"intended to accomplish any such end; the word " appointment is not in the particular plain if he were not led astray by that line of | quoting the words of the Constitution.

Mr. JOHNSON. Does he say “ may have clause; the word “appointment” is to be names to which he has so often alluded, beginfound in the clause which relates to what he i ning with that name which we all respect so

happened ?) may do with the advice and consent of the much-William Wirt. Mr. Wirt, in his opinion,

Mr. SUMNER. He says "may have hapSenate ; and because the word " appointment” as the Senator reminds us, has undertaken to


Mr. JOHNSON. That is not the precise is not in the one and is to be found in the give an interpretation to the phrase " that may other, the of appointment in the one power

language. happen." Permit me to say that in my opin

Mr. SUMNER. It is not, but is as he quotes does not exist, although it exists in the other. ion that interpretation is latitudinous beyond

it. The Senator will see that the meaning must What is the power, Mr. President? If vacan apology. There is nothing, according to my cies exist they shall be filled by commissions mind, in any rule of construction or interpreta

be the same, though the quotation may not be

strictly accurate. There is no difference which issued by the President. That is the power tion that will justify such a definition as he has

disturbs the sense. conferred upon him. When the vacancy ex chosen to attach to that phrase. And permit isting by the death or the resignation of the

"The terms, which may have happened, serve to me to say that that definition begins with Wil

confirm this constrnetion. They imply casualty, and antecedent officer is filled, does not the incum- liann Wirt. The other names cited by the Sen denote such as having been once filled have become bent hold his office by virtue of that commis ator simply follow Mr. Wirt; they say ditto to

vacant by accidental circumstances." sion? Does he not hold it, therefore, by the Mr. Wirt. Therefore, if Mr. Wirt was wrong

Then he goes on; and now I must have the appointment of the Executive just as substan they were all wrong, for I do not think that attention of the Senator: tially as if the word " appointment'' was to be any one of them, in the opinion that he gave, "It is clear that independently of the authority of found in the particular clause? Who can added to the original authority of Mr. Wirt.

a special law the President cannot fill a vacancy that doubt that? He who did fill it filled it by | They added nothing in reason, in history, or

happens during the session of the Senate."

That will be found in the fifth volume of virtue of the authority of the President to ap in exposition of any kind. I say, then, I must point, by and with the consent of the Senate.

Hamilton's Works, page 258. Now, sir, I carry you back to the very text of the ConstiHe who succeeds him in filling it fills it by tution, anterior to the opinion of Mr. Wirt; thority adduced by my honorable friend from

adduce that as authority in reply to the auvirtue of the appointment of the President and if I could get my learned friend from alone during the period for which he is au Maryland to go back of Mr. Wirt, and just put | ment, I think, showed us that, independent of

Maryland; for he himself, from his very arguthorized to fill it, so that in both cases the incumbent is in office by virtue of an appoint- tion, without Mr. Wirt as the torch to light the authority, he must be with us in our interpreing power. way and then all these other torch-bearers after

tation of this language. I do not doubt that I therefore submit, upon either of the two him, I believe there can be no doubt how that

if I could carry my friend back of William questions to which I have addressed myself, I learned Senator must pronounce, because he

Wirt, and put him face to face with this text, first, that a long-settled interpretation by every has in him too much knowledge of the Consti- already said, with the reason of the case in

he would join with Hamilton, and, as I have branch of the Government of the meaning of this clause is not to be unsettled now by the much common sense to attach such a defini- giving the same signification to this text which opinion of any committee of this body.' No tion to that phrase as he now willingly adopts

Mr. TRUMBULL. I move as an addition one has greater confidence than I have in the on the authority of these names. I say from

to the amendment now pending the following: particular committee by whom the report relied the authorities of these names, not from the opon was drafted or in the draftsman of text itself, and not from the reason of the case.

"That no person exercising or performing the du

ties of any oflice which by law is required to be filled that report; but I am sure he will not take it Why, sir, what is the natural signification of by the advice and consent of the Senate, shall, till at all in an offensive sense, nor will any mem the term ? The language is :

he is confirmed by the Senate, receive any salary or ber of that committee consider me as meaning

compensation for his services, unless he be comimis

“The President shall have power to fill up all va sioned by the President to fill up a vacancy which to disparage the authority to which each one cancies that may happen during the recess of the has begun to exist during the recess of tho Senato of the committee is entitled, when I say that Senate."

and since its last adjournment. perhaps it may be that Pinkney and Wirt and What is a vacancy? It is where the office is Mr. SHERMAN. There is, it is manisest, Taney and Legaré and Berrien and Cushing empty; and that emptiness of the office must a difference of opinion upon the question of may be right and this committee wrong; and come about, must occur, must fall in, if I may the pending amendment between members of more especially when what Pinkney and Wirt so say, during the recess of the Senate. If it | the Senate. This amendment would be just and Taney and Berrien and Legaré and Cush does not occur during the recess of the Senate,

as proper and just as effective offered as an ing have said upon the subject has received the if it does not fall in during the recess of the amendment to any of the appropriation bills. sanction of every department of the Govern Senate, if it is all anterior to the recess of the || It is more pertinent to the legislative bill ment until it first fell under the kind and crit Senate, then, allow me to remind the Senator, or the general civil appropriation bill than it ical censure of the members of this committee. it does not come within the text of the Consti is to this appropriation bill. It is a subject

Mr. SUMNER. It seems to me, Mr. Presi tution. It is in vain for him to cite the author that has already excited some discussion and dent, that if the question were now about form. || ity of Mr. Wirt and to give a new-fangled | elicited some difference of opinion. Now, ing the Constitution, and we were to consider definition to words which are so plain as to rather than choose between the amendment where this power should be lodged, much of require no definition. We all know what the offered by the Senator from Illinois and that the argument of the Senator from Maryland phrase “may happen” means. It is a com offered by the Senator from Missouri, sug. would be very applicable; it would certainly monplace phrase of every day use. Its signifi- || gest to the Senate whether it would not be be entitled to very great consideration, but he cation is perfectly plain. It must mean that better to let this subject drop now and let a will allow me to say that he seems rather to the vacancy in every respect completely must well-considered proposition be submitted as an have addressed himself to what in his opinion occur during the recess of the Senate.

amendment to one of the other appropriation ought to be the Constitution than to what the But now, sir, if I can have the attention of bills. We must make some progress with the Constitution is.

Now, sir, I prefer to call the my honorable friend from Maryland, allow me various appropriation bills. This amendment attention of the Senator precisely to what the to cite authority against authority. I should may just as well be considered at a later stage. Constitution is. I therefore, if the Senator prefer to treat this text on the basis of reason For us now to choose between these different will pardon me, put aside his very elaborate alone. Looking at it through reason, independ- | propositions would be to prolong the discusdisquisition on the inconvenience that may ent of authority, I say the conclusion is clear; | sion; and I think we had better let both of the ensue if we do not adopt his view. Even as but against the Senator's authorities I adduce amendments drop and pass this appropriation suming that all that inconvenience might ensue, an authority which I know that Senator will bill and let the amendment be considered at with regard to which the Senator will pardon listen to with respect. I adduce the authority some future stage of our session. I make this me if I express great doubt, he will allow me of one of the founders of this Constitution, one suggestion merely to expedite the business of to say that that cannot be an excuse to us for of the ablest of all those who assisted in build the Senate, for I do think we ought to pass setting aside the text of the Constitution. ing this frame of Government, and one of the this bill to-day for we have a special order There is the instrument. The Senator has ablest also of those who assisted in its early to-morrow and there are other important quoted the words; he will pardon me if I quote administration, the friend and companion of appropriation bills behind. I did hope that them:

General Washington in his first administration. this afternoon we could be able to take up the “The President shall have power to fill up all vacan I incan Alexander Hamilton, who was called | Army appropriation bill and make some prog: cies that may happen during the rocess of the Senate."

expressly to deal with this very question, and ress with it, but I have already despaired of Are not the words plain?

who in advance has given the authority of his that. I hope the suggestion I now inake will Mr. JOHNSON. That is a question. pame to that interpretation of the text which I be adopted.

Mr. SUMNER. The Senator says that is a have already shown reason requires. Now, Mr. COWAN. Mr. President, I agree enquestion, but I put it, are not the words plain? | listen to what Alexander Hamilton said, in a tirely with the Senator from Ohio. I have

Mr. JOHNSON. If the Senator wants me letter to James McHenry, Secretary of War, considered the law as pretty well settled, and to answer his question, I should say no. dated Jay 3, 1799:

it had better remain as it is. If it is to be Mr. SUMNER. Very well; the Senator has “In my opinion, vacancy is a relative term, and determined by this body, if we are to make already answered the question in advance by presupposes that the ofiice has been once filled. If

a rule on the subject, we should take a little 80, the power to fill a vacancy is 'not tho power to an elaborate speech. His whole speech was a make an original appointment."

more time for its consideration than we can

« PreviousContinue »