of Columbia, to the State of Virginia," and for other purposes; which was read twice by its title, referred to the Committee on the District of Columbia, and ordered to be printed. Mr. WILLEY asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 281) to authorize the Chesapeake Bay and Potomac River Tide Water Canal Company to enter the District of Columbia; which was read twice by its title, and referred to the Committee on the District of Columbia.

NITRO-GLYCERINE.

Mr. CONNESS. I offer the following res

olution, and ask for its present consideration: directed to inquire into the necessity of prohibiting

Resolved, That the Committee on Commerce be

the importation of nitro-glycerine, its transportation on American vessels, or by land within the United States, and its manufacture in the United States; and that the committee report by bill or otherwise. There being no objection, the Senate proeeded to consider the resolution.

Mr. CONNESS. I have received this morning by the telegraph, from the Chamber of Commerce of San Francisco, the result of a special meeting called by that body in relation to this subject, which I ask to have read at the desk. It is addressed to Congress.

The Secretary read, as follows:

"At a special meeting of San Francisco Chamber of Commerce, the following action was taken:

"Whereas several fatal accidents have lately taken place from the terrible explosive properties of nitroglycerine, a substance whose full powers seem yet imperfectly understood, even by experienced chemists, whereby great loss of life and property have resulted: Therefore, desiring to prevent further calamity,

"Be it resolved. That the president of this chamber be instructed to telegraph Congress requesting immediate legislation for the protection of life and property from dangers connected with nitro-glycerine.

Resolved, That this chamber recommend the immediate passage of a law, under a suspension of the rules, constituting the shipment or transportation of nitro-glycerine by any public conveyance within the United States or by any vessel of the United States a felony."

Mr. CONNESS. I also hold in my hand a letter from a prominent gentleman of the city of New York, a small portion only of which I will read in this connection, showing the im

portance of as immediate action as can be taken on the subject, and I desire to call the attention of the honorable chairman of the Committee on Commerce to it, that he may, at the earliest moment of time, report upon it. This gentleman says:

"The fearful explosion and loss of life in San Francisco, of which we have received but brief accounts per telegraph, has been preceded by one still more dreadful at Aspinwall, of which your morning papers will give you the parculars, both caused by the same powerful and dangerous explosive material, namely, blasting oil,' or tro-glycerine. These two feariul calamities, following each other in quick succession, have caused much alarm here, especially as it is known that a considerable quantity of the article is now in our public warehouses."

He then alludes to former legislation regulating explosives by Congress, and continues:

"I am well informed that Austria has such a law. The inventor himself is ignorant of many of the means which cause its explosion. A person is now on his way to San Francisco with a package containing some twenty-five pounds in his state-room, a quantity sufficient to blow the ship to atoms. Other parties are known to be traveling with it in their carpetbags on our railroads. Will you move in this matter? It is a most important one, in which the public is deeply interested.

"WILLIAM A. BAYLEY."

I desire this paper to be referred to the committee, with extracts from papers throwing some light on the material of nitro-glycerine, and also a pamphlet issued by the parties who have undertaken its circulation and introduction into use in the United States. It appears that there is a stock company being organized in New York, with a capital of $1,000,000, for the purpose of manufacturing in the United States and introducing this terrible explosive into general use. The pamphlet also contains an extensive dissertation on the article. All these papers I desire to have referred, with the resolution, to the Committee on Com

that the papers accompanying the resolution be also referred to the Committee on Commerce. That order will be made, if there be no objection.

MESSAGE FROM THE HOUSE.

A message from the House of Representatives, by Mr. LLOYD, Chief Clerk, announced that the House of Representatives had passed the bill (S. No. 146) for the relief of Thomas F. Wilson, late United States consul at Bahia, Brazil.

ENROLLED BILLS SIGNED.

The message further announced that the Speaker of the House of Representatives had signed the following enrolled bills and joint resolution; which were thereupon signed by the President pro tempore:

A bill (S. No. 89) to issue American registers to the steam vessels Michigan, Despatch, and William K. Muir, and for other purposes; A bill (S. No. 150) for the relief of Theodor G. Eiswald; and

A joint resolution (S. R. No. 29) for the transfer of funds appropriated for the payment of salaries in the Post Office Department to the general salary account of that Department.

INTER-STATE INTERCOURSE.

Mr. CHANDLER. I move to take up House bill No. 11, to facilitate commercial, postal, and military communication among the several States.

Mr. JOHNSON. The Senator from Maine who is not in his seat, [Mr. MORRILL,] and has been absent on business three or four days, is very desirous of being heard on that bill. He is a member of the committee before whom the bill has been pending. I submit, therefore, to the Senator from Michigan whether he had better not let it lie upon the table until his return. I understand he will be here to-morrow or next day. A delay of a few days can make but very little difference, I suppose, in the result of the measure one way or the other. I know that the Senator from Mane is very desirous of lay

ing before the Senate the views which he wishes

to present on the subject.

Mr. CHANDLER. I should like to go on with the discussion of this bill; I do not know that we shall arrive at a vote to-day. I am aware that the Senator from Maine proposes to discuss the bill; but I desire to arrive at a vote as soon as possible. It has now been before

the Senate for three successive sessions, and most of those who desire to speak on it have spoken; but I understand some, among others the Senator from Maryland, desire to make speeches on the bill, and I should like to progress as far as possible to-day, and I shall press it to a vote as early as practicable.

Mr. JOHNSON. I was unable to hear the honorable member.

Mr. CHANDLER. I say I should like to have the discussion go on to-day and arrive at a vote as soon as possible. I understand there are several members prepared to make speeches now, and I desire to press for a vote at the carliest possible moment. It has now been before the Senate, as I observed, for three successive sessions, all of the last Congress and the whole of this session, and I presume every member is prepared to vote upon it.

Mr. JOHNSON. I do not know-certainly that is not my purpose now-that I shall discuss the measure at all; but I know that the Senator from Maine is very anxious to be heard upon the subject before a vote is taken. I am not aware that there is any other member of the Senate who proposes to debate it.

Mr. CHANDLER. I then move that it be made the special order for one o'clock on Wednesday next, the day after to-morrowthat it be postponed until Wednesday at one o'clock and made the special order.

The PRESIDENT protempore. That motion is not in order, as the bill is not yet before the Senate.

Mr. CHANDLER. I move to take it up for that purpose.

Mr. JOHNSON. I am told that the hon.

orable Senator from Maine is not likely to be here until Thursday.

Mr. CHANDLER. Well, I will say Thursday.

Mr. JOHNSON. Say Friday.

Mr. CHANDLER. Iam told he will be here on Wednesday, and therefore I will move to first motion is that the bill be taken up. make it the special order for Thursday. My

The motion was agreed to.

Mr. CHANDLER. I now move that the bill be postponed until Thursday next at one o'clock and made the special order for that hour.

Mr. CLARK. I appeal to the Senator from Michigan to let it go over a day or two beyond

that time. I know that the Senator from Maine expected to be back before this time, but he has been unexpectedly delayed and may be delayed until Thursday or Friday.

Mr. CHANDLER. If he is not present, I shall consent to a further postponement.

Mr. CLARK. That will be satisfactory. Mr. CHANDLER. Let it be made the special order for Thursday with that understanding. The motion was agreed to.

POST OFFICE APPROPRIATION BILL. Mr. SHERMAN. I move that we proceed to the consideration of the Post Office appropriation bill, with a view to dispose of the pending amendment to it.

Mr. HOWE. I suggest to the Senator from Ohio that he let that go over until one o'clock, and let us go on with a few private bills in the mean time.

The motion of Mr. SHERMAN was agreed to; and the Senate resumed the consideration of the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending June 30, 1867, and for other purposes.

Mr. SHERMAN. The Senator from Wisconsin appeals to me to allow this bill to go over until one o'clock. I am willing to consent to have it laid aside informally until that

time, as I understand there is no special order for one o'clock to-day, but I desire to have this bill disposed of to-day.

Mr. HOWE. I should like to have the bill laid aside informally with a view to proceed to the consideration of House bill No. 472.

Mr. SHERMAN. I have no objection, as I said before, to letting the appropriation bill lie over informally until one o'clock.

The PRESIDENT pro tempore. The bill will be laid aside by coinmon consent until one o'clock.

Mr. HENDRICKS. I think the Senator from Ohio is mistaken; there is a special order for one o'clock; the bill for the relief of contractors in the Navy was the special order for one o'clock. It was so made the other day, and I supposed it continued as such.

The PRESIDENT pro tempore. It is in the Calendar of special orders, but does not stand assigned as a special order for to-day.

Mr. HENDRICKS. It was assigned the other day as a special order, and was then passed over informally.

Mr. SHERMAN. I believe we can dispose of the Post Office bill in a short time.

Mr. CLARK. I suggest to the Senator from Indiana that the bill to which he refers was not passed over informally, but was superseded by a previous special order, the unfinished business of the day before, so that it has lost its place as a special order.

Mr. HENDRICKS. I ask the Chair if that be the effect.

The PRESIDENT pro tempore. It stands in the list of special orders but will not come up necessarily at one o'clock to-day. Having been superseded by the unfinished business of a former day it stands on the Calendar among the special orders but is not to be called up at one o'clock as a special order, not having been assigned for that hour to-day.

Mr. HOWE. I understand that there is no objection to letting the Post Office bill be laid aside.

Mr. HOWE. That being done, I move to proceed to the consideration of House bill No. 472. The motion was agreed to; and the bill (H. R. No. 472) for the relief of George R. Frank, late captain in the thirty-third regiment Wisconsin volunteer infantry, was considered as in Committee of the Whole. It proposes to direct the Paymaster General of the United States Army to settle and pay out of any money appropriated, or hereafter to be appropriated for the payment of the Army, the account of George R. Frank, late a captain in the thirty-third regiment of Wisconsin volunteer infantry, for his services, and all allowances as captain in that regiment, in the service of the United States, from the date of his last payment to the time of the final muster out and payment of the regiment, the same as though he had not been mustered out as captain for the purpose of being mustered in as major or otherwise.

The bill was reported to the Senate without amendment, ordered to a third reading, read the third time, and passed.

NAVY PAY DEPARTMENT.

Mr. GRIMES. I move that the Senate proceed to the consideration of House bill No. 197, to provide for the better organization of the pay department of the Navy.

Mr. SHERMAN. That will take considerable time, I fear. I therefore hope the regular order will be proceeded with.

Mr. GRIMES. If it does take time, let it come up again to-morrow in the morning hour. We can go on with it until one o'clock now.

Mr. SHERMAN. I have no objection to that.

The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill, which provides that hereafter the active list of the pay corps of the Navy shall consist of eighty paymasters, forty passed assistant paymasters, and thirty assistant paymasters. Paymasters are to be regularly promoted and commissioned from passed assistant paymasters, and passed assistant paymasters from assistant paymasters, subject to such examinations as are required by law, and such as may be established by the Secretary of the Navy. Passed assistant paymasters are to give bonds for the faithful performance of their duties in the sum of $15,000, and their annual pay to be, at sea, $1,500; on other duty, $1,400; on leave or waiting orders, $1,200.

is

The Committee on Naval Affairs proposed to amend the bill by inserting after the words assistant paymasters," in line eight of section one, the following words:

And all passed assistant paymasters authorized by this act to be appointed who have not heretofore been appointed and commissioned as assistant paymasters, and all assistant paymasters hereby authorized to be appointed, shall be selected from those who have served as acting assistant paymasters for the term of two years, and who were eligible to appointment in that grade when they were appointed acting assistant

paymasters as aforesaid.

Mr. GRIMES. I move to amend the amendment by striking out the words "two years' and inserting one year."

The amendment to the amendment was agreed to.

Mr. GRIMES. In order to make it more specific I propose, at the end of the amendment, to strike out "that" before "grade," and insert "the;" and after grade" to insert "of assistant paymasters;" so that the clause

will read:

All assistant paymasters hereby authorized to be appointed shall be selected from those who have served as acting assistant paymasters for the term of one year, and who were eligible to appointment in the grade of assistant paymasters when they were appointed acting assistant paymasters as aforesaid. The amendment to the amendment was agreed to.

The amendment, as amended, was agreed to. Mr. SHERMAN. This bill, I believe, changes the pag of all the officers of the Navy. I have not had time to look into it.

Mr. GRIMES. Not at all. It regulates the pay department, and merely creates a few more paymasters and makes a new grade of acting assistant paymasters.

Mr. SHERMAN. This, then, is not a bill to change the pay?

Mr. GRIMES. Oh, no.

Mr. SHERMAN. Then I have nothing to say about it.

The bill was reported to the Senate as amended, and the amendment was concurred engrossed and the bill read a third time. The in. It was ordered that the amendment be bill was read the third time and passed.

WILLIAM PIERCE.

Mr. ANTHONY. I move that the Senate proceed to the consideration of Senate bill No. 231.

The motion was agreed to; and the bill (S. No. 231) for the relief of William Pierce was read a second time, and considered as in Committee of the Whole. It authorizes the Secretary of the Treasury to issue to William Pierce duplicates of the following-described bonds of the United States of America, Treasury Department, for the Oregon war debt, issued by the United States under an act of Congress approved March 2, 1861, payable at any time after the 1st of July, 1881, at the Treasury of the United States, with interest at the rate of six per cent. per annum, namely: No. 679, No. 682, No. 681, and No. 270, with coupons attached; the first three bonds being for the sum of $100 each, and the last named being for $50, each of them being signed L. E. Chittenden, Register of the Treasury, and each of the coupons attached being signed by G. Luff; but before the issue of the new duplicate bonds William Pierce is to execute and deposit with the Secretary of the Treasury of the United States, to the full acceptance and satisfaction of the Treasurer, such bond of indemnity as is usually required by the regulations of the Treasury Department for the issue of duplicate certificates of inscribed stock.

The bill was reported to the Senate without amendment.

Mr. TRUMBULL. Is there a report in this case?

Mr. ANTHONY. Yes sir. The bonds were lost by the burning of the steamer Golden Gate. The proof of the loss is as complete as it can be, and the petitioner is to give the bond of indemnity that is usually required by the regulations of the Treasury Department for the issue of duplicate certificates of inscribed stock. What was the amount of

Mr. HOWARD. the bonds lost? Mr. ANTHONY. Three hundred and fifty dollars.

Mr. CLARK. The case is well proved. Mr. TRUMBULL. Is this like the case we acted upon the other day?

Mr. ANTHONY. We have passed a number of cases on the same specifications.

Mr. CLARK. The bonds are fully identified and the loss well proved.

Mr. ANTHONY. The report is very short, if Senators desire to have it read, but I think it is unnecessary to read it.

The bill was ordered to be engrossed for a third reading, was read the third time, and passed.

MRS. JERUSHA WITTER.

Mr. KIRKWOOD. I ask the Senate to take up for consideration Senate bill No. 276.

The motion was agreed to; and the bill (S. No. 276) for the relief of Mrs. Jerusha Witter, was read a second time and considered as in Committee of the Whole. It directs the Secretary of the Interior to place the name of Mrs. Jerusha Witter, widow of Dr. Amos Witter, late, surgeon of the seventh regiment Iowa infantry volunteers, on the pension-roll, at the rate of twenty-five dollars per month, to commence from the date of her application for a pension, and to continue during her widowhood.

The bill was reported to the Senate without

amendment, ordered to be engrossed for a third reading, read the third time, and passed.

POST OFFICE APPROPRIATION BILL. Mr. SHERMAN. I now call for the regular order.

The Senate resumed the consideration of the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending the 30th of June, 1867, and for other purposes, the pending question being on the amendment of Mr. HENDERSON to add the following as an additional section:

SEC. -. And be it further enacted, That in all cases in which persons have been appointed, either during the recess or during the session of the Senate, as assistant postmasters or other civil officers under the Government, whose appointments require the consent of the Senate, and whose appointments, having been submitted to the Senate, have been rejected or not consented to before the adjournment thereof, no money shall be drawn from the Treasury, or used from any fund or appropriation made or created by law, to pay the salaries of such persons under such appointments, or under any previous appointment to the same office, for services rendered after said adjournment. And if any such person shall, after such adjournment, be appointed to the same office, no money shall be drawn or used as aforesaid to pay his salary until his appointment shall have been consented to by the Senute at its succeeding session.

Mr. JOHNSON. When the amendment now before the Senate was offered, I suggested to the Senate and to the mover of the amendment that it was perhaps doubtful whether we had the power to pass a law of that kind. The Government have acted under the belief, founded upon the advice that they have received from the law officer of the Government, on several occasions, that a commission issued by the President during a recess of the Senate, when he has clearly the authority to appoint, continues to the end of the next succeeding session of Congress or of the Senate, whether or not the nomination of the particular officer has in the mean time been by the Senate rejected, they being of opinion-and I certainly am not prepared to say that they are wrong that the power conferred upon the President is a power which Congress cannot directly take away. However it might be if the provision was a prospective one, yet if the true meaning of those commissions is, that they continue until the end of the succeeding session, the party who may be in office under the commission is entitled to be paid; and the fact, therefore, of the adoption of this amendment, if that is the condition of the officer, if he has the right to his salary which the appointment gives him, will be, virtually, to repudiate an obligation which the Government has contracted. From the reading of the amendment at the desk, I suppose it goes to that extent. I submit, therefore, to the honorable member from Missouri whether he had not better modify it, if it is to pass at all, so as to clear it of all constitutional difliculty, and above all to clear it from a result which would seem to me to be apparent, that the Senate are sanctioning a repudiation of obligations properly contracted by the Government through the President.

The honorable member suggests to me that I have not properly apprehended the extent of his amendment. What I have said was said on what I supposed it to be as it was read from the desk. I have the amendment now in my hand, and I will read it for the purpose of ascertaining whether I have properly apprehended it. It is:

SEC.. And be it further enacted, That in all cases in which persons have been appointed, either during the recess or during the session of the Senate, as assistant postmasters or other civil officers under the Government, whose appointments require the consent of the Senate, and whose appointments, having been submitted to the Senate, have been rejected or not consented to before the adjournment thereof, no. money shall be drawn from the Treasury, or used fron any fund or appropriation made or created by law, to pay the salaries of such persons under such appointments, or under any previous appointment to the same office, for services rendered after said adjournment. And if any such person shall, after such adjournment, be appointed to the same office, no money shall be drawn or used as aforesaid to pay his salary until his appointment shall have been consented to by the Senate at its succeeding session.

The latter part of the amendment was not in the section as originally proposed. I think

that has been added at the suggestion of my friend from Illinois, the chairman of the Judiciary Committee.

Mr. HENDERSON. No, sir. He suggested something of the sort.

Mr. JOHNSON. He suggested it and you adopted it. So far as the latter part of the amendment is concerned, it goes to this extent, that the President has no authority to appoint to the same office any one whose nomination has been rejected by the Senate. That has been done from time immemorial, and nobody has ever questioned the authority to appoint. There is nothing in the Constitution which limits the power of the President to appoint whoever he pleases. You may by law, perhaps, provide by way of punishment in certain cases that no one shall be appointed to office; but in the absence of any particular law excluding any particular man from the right to hold an office if he is appointed, the President's authority is just as absolute to appoint in a case where his nomination of the same man has been rejected as it is in the first instance to appoint him originally. I do not think I can be mistaken as to this. Whether the President should appoint is quite another matter; whether he should not show that respect to the Senate of not acting in relation to an appointment of this description which the Senate have refused to advise is an entirely different inquiry.

Mr. TRUMBULL. The Senator from Maryland will allow me to suggest that that is not the point which I made. I do not doubt that, as a question of power, the President may continue to send in the nomination of the same person after he has been rejected. As to the propriety of doing so, that is another thing; but as a mere question of power, as the Senator from Maryland well says, he may select whom he pleases where he has the power to make the appointment. But the point which I made was that where a vacancy existed while the Senate was in session, it was not competent for the President to make any appointment after the Senate adjourned. The Constitution authorizes the President to appoint men to office by and with the advice and consent of the Senate, and a subsequent clause of the Constitution authorizes the President to commission officers to fill vacancies which may occur during the recess of the Senate, whose commissions shall expire at the end of the next session of the Senate. Now, it does seem to me very clear under this provision of the Constitution as an original question, that the vacancy must happen during the recess of the Senate to authorize the President to fill it at all. This is the exact provision:

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

When can the President fill up a vacancy by granting a commission which shall expire at the end of the then next session of the Senate? Clearly when a vacancy happens during a recess. Now, can it be said that a vacancy happens during a recess which existed when the Senate was in session? By way of illustration, there is a vacancy upon the supreme bench, which occurred, I think, since the last adjournment of the Senate. Suppose the President of the United States had omitted to fill that vacancy, to send in a nomination to the Senate until the Senate closed its present session, would it be contended that the President after the Senate had adjourned could commission a man as a justice of the Supreme Court, to hold his commission until the end of the next session of the Senate afterward? Would that be a vacancy which happened during the recess?

The intention of the framers of the Constitution was that all officers, saving some minor appointments which might be made by the heads of Departments in pursuance of laws which should be passed, should be made by the nomination of the President with the advice and consent of the Senate. The framers of the Constitution intended that all the officers of this Government should be appointed by the

concurrent action of the President and Senate; but the Senate not being always in session, and vacancies liable to occur at any time, it was necessary to provide some means by which the offices might be filled; hence this other clause was inserted to allow the President, when a vacancy happened in the recess of the Senate, to fill it by a temporary appointment or commission. It is not called an appointment at all, it is called the granting of a commission for a person to exercise the duties of that office until the end of the next session of the Senate, so as to afford an opportunity for the President and the Senate together to fill the office in the proper mode contemplated by the general provision of the Constitution.

Now, I suppose in speaking of this amendment immediately before the Senate, it is entirely competent to provide that no person shall be paid who is commissioned to discharge the duties of an office during the recess in case of a vacancy which has not happened during the recess. I beg pardon for saying so much in interruption of the Senator from Maryland. I really forgot that I was speaking on an interruption.

Mr. JOHNSON. I am very much obliged to the honorable member; he requires no apology; and I have an answer to each of the questions which his remarks suggest. The first is that the construction of the clause of the Constitution to which he has referred, has been. before the executive branch of the Government frequently, and that construction from the first period when it was presented has, as I think, been uniform. The law officers of the Government have considered the word "happen" as used in the part of the Constitution adverted to by my friend from Illinois, as meaning "existing," independent of the cause of the vacancy. The object is to keep the Government in operation, to keep in existence all officers whom the Constitution deems necessary to carry on the Government; and if, therefore, from any cause, no matter what, a vacancy in them exists at any time when the Senate is not in session, the Executive has the authority to fill it. I have by me one of the several opinions upon that subject. The one that I have before me was given by Mr. Wirt when he was Attorney General, as far back as 1823. In it he says:

"I find that General Swartwout's commission as Navy agent at New York, expired during the last session of the Senate. Your nomination of another person to fill that vacancy was not confirmed by the Senate, and the vacancy still exists."

What was to be done? Could the office be filled, the Senate having adjourned and the vacancy having existed during the session of the Senate? He goes on to say:

"It is the case, then, of a vacancy which arose during the session of the Senate, but which, from the circumstance that has been mentioned, continues to exist in the recess. The question on which you ask my opinion is, whether, under the Constitution, you can fill the vacancy by a commission to expire at the end of the next session?'

The provisions of the Constitution on this subject arc

1. That the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers, &c.

2. That the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.'

Had this vacancy first occurred during the recess of the Senate, no doubt would have arisen as to the President's power to fill it. The doubt arises from the circumstance of its having first occurred during the session of the Senate. But the expression used by the Constitution is 'happen;' all vacancies that may happen during the recess of the Senate.' The most natural sense of this term is to chance to fall out-to take place by accident.' But the expression seems not perfectly clear. It may mean happen to take place; that is, to originate;' under which sense the President would not have the power to fill the vacancy. It may mean, also, without violence to the sense, happen to exist:' under which sense the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred? The first seems to me most accordant with the letter of the Constitution; the second most accordant with its reason and spirit."

He goes into a long argument to show that that is under all the circumstances the proper

construction.

Mr. SUMNER. Whose opinion is that?

Mr. JOHNSON. Mr. Wirt's, and the same opinion has been given by several others. He comes to this conclusion:

"The construction which I prefer is perfectly innocent. It cannot possibly produce mischief without imputing to the President a degree of turpitude entirely inconsistent with the character which his office implies, as well as with the high responsibility and short tenure annexed to that office, while at the same time it insures to the public the accomplishment of the object to which the Constitution so sedulously looks that the offices connected with their peace and safety be regularly filled."

That is to say, filled at all times. The hon orable member from Illinois, therefore, perhaps, (certainly, if this construction given to the clause by Mr. Wirt is the correct one,) is in error in supposing that a vacancy which exists during the recess of the Senate may not be filled by the President during the subsequent recess of the body. But if the honorable member is right, the amendment which he proposes to this bill, and which the member from Missouri has adopted, would still be liable to objection. The uniform decision of the office has been that appointments made by the President during the recess, as to the authority to make which there of course can be no doubt, for it is communicated to him in express words, are to continue until the termination of the next succeeding session of the Senate. The commission which is given to an officer appointed during the recess is a commission which by its terms is not to expire until the termination of the next succeeding session of the Senate; and it has been held that it does continue until the termination of the next session of the Senate, although the nomination of the same man has been submitted to the Senate and has been rejected by the Senate. That has been the uniform construction of the Government, never, as I believe, questioned. Then what is the result?

Mr. TRUMBULL. I do not know that the Senator from Maryland was on the Judiciary Committee at the time; but this subject was brought before that committee at a previous session, and very elaborately considered. All these opinions of the Attorneys General which have been given in favor of executive prerogative were examined and reviewed; and the committee unanimously reported on this branch of the subject, that the vacancy must begin to exist during the recess of the Senate to authorize the President to fill it. It is no new question.

Mr. JOHNSON. The honorable member did not hear me.. That does not affect the question I am now considering. I answer, whatever may have been the opinion of the Judiciary Committee, by saying that Mr. Wirt, in 1823, gave the opinion which I have just read, and that other Attorneys General since, to whom the question has been submitted, have given the same opinion. But what I said just now, when I was interrupted by the honorable member, was, that the particular construction to which I was then adverting had never been called in question, and had never been before the Judiciary Committee; and it presents the question, how long does a commission issued to a party appointed by the President during the recess, when there is no doubt of his authority to appoint, continue? It continues, according to the uniform construction of the executive, and, so far as I am advised, never questioned by any department of the Government, until the last day of the succeeding session of the Senate.

Mr. HOWARD. That is the exact language of the Constitution.

Mr. JOHNSON. That is the language of the Constitution. That being the case, those postmasters who were appointed during the recess hold commissions that run to the termination of the present session of the Senate. That is clear. If they do, then the vacancy that occurs is a vacancy occurring during recess, because as long as there is a man in office under a commission the office is filled, and there is no vacancy. The vacancy, therefore, begins to exist only at the termination of the next succeeding session of the Senate. Now, I can see and I saw it when I was a member

of the executive-that this may be used so as practically to do away with what was the general practice of the Constitution; but the framers of the Constitution, in words, authorized the President to appoint and to commission parties who were to hold their offices to the very last moment of the session. The object of that was to insure the offices being filled. It seemed, no doubt, it went upon the hypothesis that the President would nominate during the session of the Senate, and in all probability if his nom: ination of the particular officer was rejected, that he would nominate somebody else, but that until he nominated somebody else, and that other party was confirmed by the Senate, his first appointment remained; or otherwise the office would go unfilled.

I admit with the honorable member from Illinois that I think the President would war as against the spirit of the Constitution, or, rather, would be guilty of an abuse of power, if he designedly kept in office a man whom the Senate had thought proper to reject for reasons which he had no ground to believe would after ward cease to influence the Senate; but it very often happens, or may happen to the Senateit has happened that they reject to-day, and find that they have made a mistake, and are willing to confirm to-morrow. The President, therefore, may have reason to believe that an appointee of his, rejected by the Senate, would still, if renominated, not be objectionable to the body; but whether so or not, whether it be an abuse of power or not, is not the question which this amendment suggests. The question is, has he the power? And if he has the power, and he has exercised the power by appointing a particular man to office, that man is entitled to his pay under the Constitution. We have no right to interfere with the power of the President indirectly. We cannot say that he shall not appoint. If that would be nugatory, it is equally improper, I submit to the Senate, to attempt to accomplish the same object indirectly, by providing that although he appoints the appointee shall not be paid. If the Constitution gives to the appointee a right to hold his commission, then the honor of the United States is involved; he ought to be paid; and yet this amendment says that he shall not be paid.

Mr. SHERMAN. I am generally indisposed to legislate on general topics on an appropriation bill; but this amendment of the Senator from Missouri contains two propositions which, I think, are simply declaratory of the existing law; and, to avoid all doubt, they may as well be inserted here. The first proposition declares that if a person who has been appointed during the recess of the Senate, or during the session of the Senate, shall continue to hold his office after the adjournment of the Senate, when he has been rejected by the Senate, he shall not draw any pay therefor. That is a proposition so plain that I think there can be no controversy about it. If a person is appointed during the recess of the Sena e his office certainly terminates at the adjourninent of the Senate. Is there any doubt about that?

Mr. JOHNSON. No.

Mr. SHERMAN. Then should he receive any pay for services rendered after the adjournment of the Senate? That is the question. I say he should not; and the first proposition contained in this amendment simply provides that if he continues to discharge the duties of the office after the adjournment of the Senate he shall not be paid for that work and labor done by him. That is a very clear proposition, that after his office terminates he should not discharge the duties of the office, and especially should not draw a salary from the Treasury. The second proposition is almost as clear, in my mind, that where the Senate has rejected a particular appointment and the President undertakes to appoint that same person again to the same office, in the face of the rejection by the Senate, that person shall not draw his pay, from any appropriation from the Treasury, until the nomination has been again submitted to the Senate, and has been approved and rati

fied by it. It seems to me that that is the plain spirit of the Constitution. The President ought not to appoint a person who has been once rejected by the Senate, unless for clear and manifest reasons, and if those reasons are so clear and manifest they should be submitted to the Senate and the Senate would no doubt overrule its previous rejection of the nominee, and the incumbent ought to hold his office subject to that power of the Senate to reject the nomination.

Mr. JOHNSON. Suppose he is rejected on the last day of the session?

Mr. SHERMAN. Very well, then, if he is reappointed his salary ought to be suspended until the Senate have an opportunity to reconsider its rejection. The rejection of the Senate ought at least to have sufficient effect to prevent that person from holding office or drawing pay for such services in that office. That seems to me to be very plain. If, as the Senator from Missouri seems to think, there is danger that the President will, against the rejection of the Senate, appoint the same man to that office, I say that person ought not to receive money from the Treasury until the reappointment is submitted to the Senate and approved by it. With that view, think, the amendment is carefully worded and will accomplish the purpose.

Mr. HENDERSON. I thank the Senator from Ohio for his defense of this proposition, which I think is perfectly clear, and I have but little to add to what he has said. The proposition seems to me to be perfectly plain. I examined all these opinions of the Attorneys General, and I found, in addition to the opinion referred to by the Senator from Maryland, quite an able opinion given by Mr. Taney, when he was Attorney General, upon the same subject, and sustaining in its position the views taken by Mr. Wirt. It is an opinion given in 1832 upon the appointment of a land officer in Mississippi, where the opinion is again given by that Department of the Government, that where the President appoints, the appointment holds until the last day of the session; and if the session of the Senate shall be adjourned without acting upon the nomination there is a vacancy again. It is contrary to my views of the subject, and yet I find that these opinions have been invariably given as stated by the Senator from Maryland. He is correct in stating that such has been the opinion, I believe, of every Attorney General who has been called upon for an opinion on the subject; but I differ with the Senator from Maryland in the opinion that he has expressed, that this amendment conflicts with that view of the subject. I do not think it has anything to do with it. I have so drawn the amendment as not to run counter to any opinion given by any Attorney General on the subject.

My idea in presenting the amendment is, that if the President shall nominate an officer to the Senate, and the Senate shall act upon it and specifically reject the appointment, and the President insists upon that party holding the office after the adjournment of the Senate, he shall have no salary. I differ with the Senator from Maryland in supposing that if Congress shall not vote to the executive department money, the executive department can continue its operations. I apprehend that Congress, by refusing to grant appropriations in the midst of a most important war, can stop the wheels of Government in that behalf. We can absolutely refuse to grant the means to carry on a war, and it will necessarily cease, provided we should do so. Now, the President makes an appointment. We have to advise and consent to that appointment, or else it is no appointment after the adjournment of the Senate. I grant that the appointment made lasts until the last day of the session; but the Attorneys General say that the President himself, by making another appointment and submitting to the Senate, destroys the force of the first appointment. I have, therefore, drawn this amendment in reference to that point also. If

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the President fails to send us another appointment, and after we have rejected his appointment leaves the appointee to hold the office, I say he can legally hold it no longer than the last day of the session, and when that day arrives it is clearly within the power of Congress to say that that man, by virtue of that appointment, or by virtue of any succeeding appointment, shall receive no pay.

The Senator from Maryland, perhaps, is sustained by the opinions of the Attorneys General upon one point, and that is, that a vacancy exists at the adjournment of Congress. Mr. Taney says, otherwise the Government would cease; and, contrary to the expressed opinion of the Senator from Illinois, it has been held, notwithstanding the intervening session of the Senate, that after an appointment has been made, and the Senate has failed to act upon it, at the close of that session there is a vacancy again, and the President may appoint. There is no such constitutional provision. This is merely the construction given by the respective Attorneys General; that is, that a vacancy again occurs, and the Senator from Maryland says that, according to the opinions heretofore given, if a vacancy exists immediately after the adjournment of the Senate, the President can appoint whom he pleases. Very good; I will not take issue with the Senator on that subject; the President may appoint whom he pleases; only ask the Senate to say that if he does appoint the same individual, that individual shall not be paid; that we will appropriate no money whatever, and give him fair notice of that fact, for the payment of his salary. That seems to me to be but just.

The Senator says the President may appoint whom he pleases, and if we undertake to interfere with that right, we are trespassing on the constitutional right of the executive department. That is the position. Suppose that war exists, and Congress refuses to grant appropriations to carry it on; suppose we declare that a certain individual is not a citizen of the United States by an act of Congress, and the President appoints such an individual, are we bound to pay him? It is very true that the President may appoint; but suppose that the President appoints to a civil office in my State a man who has been convicted of treason, if you please. Under the act which we passed in 1862, he is disqualified from holding office. Let me ask the Senator from Maryland, if the President appoints such an individual, are we bound to appropriate money to pay him?

Mr. JOHNSON. No. He has no right to appoint him.

Mr. HENDERSON. Why has he no right to appoint him? Simply by virtue of the operations of an act of Congress. Then cannot we legitimately pass an act of Congress without a conviction of the individual, declaring that if such and such a person shall be renominated he shall not be paid? I cannot think for a moment that such a power is not lodged in Congress. I cannot realize the fact for a moment that a valid objection can be presented to the amendment. I have given careful attention to all the opinions that have been delivered on this subject, and I do not think that the amendment conflicts in any degree whatever with these opinions.

I desire, while I am up, to amend the amendment in the second line by inserting after the word "been," the words "or shall be," so as to make it apply to the future as well as the past. It was a mere oversight of mine that those words were omitted.

Mr. JOHNSON. How will it read then? Mr. HENDERSON. In this way: That in all cases in which persons have been or shall be appointed during the recess or session of the Senate, &c.

It will make it apply in its provisions to the future as well as to the past. I desire also to add several words in the twelfth line of the amend ment, so as to obviate an objection that may be presented. I believe no such objection has been presented, but I can see very well that if

the appointment shall be made at the very last days of the session of the Senate, and the Senate adjourn without acting upon it, as suggested to me by the Senator from Illinois, some very serious difficulties may arise from the fact that notice has not been communicated to the officer. He may hold on for a month before he really knows that the Senate has rejected his appointment; hence some specific term should be stated within which the salary may continue to be paid after the adjournment of the Senate, and beyond that time it ought not to be paid. I will therefore modify my amendment by inserting after the word "rendered" in the twelfth line, the words "after the expiration of thirty days." That will give ample time for notice to be sent to any part of the United States that the Senate has rejected a nomination, and we shall pay him no salary from the expiration of thirty days from the adjournment.

Mr. JOHNSON. Are those the only modifications that you propose to the amendment? Mr. HENDERSON. Yes, sir.

The PRESIDENT pro tempore. The modifications named by the Senator from Missouri to his amendment will be made, the amendment being under his own control as yet.

Mr. JOHNSON. I do not propose to argue the question again; but I submit to the honorable member from Missouri, and to the member from Ohio, the acting chairman of the Finance Committee, whether if this provision is to pass at all it ought not to be still further modified. The latter part of the amendment says that if any such person, that is, if any person whose nomination has been rejected or upon whose nomination the Senate have not acted, is again appointed to the same office by the President, he is not to be paid. That applies to the two cases of a nomination rejected, and a nomination not acted on. Suppose a nomination comes in a day or two before or the very day the Senate adjourns, or suppose the Senate without any good reason, for want of time, fails to act, or is unwilling to act, it would rather the matter should go over, as has frequently been done, is it necessary, in order to guard against any possible mischief which could result from leaving the President the power to appoint, to attempt to take from him indirectly the power to appoint by providing that the appointee shall not receive his salary? The vacancy may occur the day before, or the very day the Senate is about to adjourn, and he nominates; you cannot act upon it; you adjourn; is the office to remain vacant during the whole time that may intervene between the time of the adjournment and the time of the meeting of the next session?

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Mr. DOOLITTLE. I beg to suggest to the Senator from Maryland another case. pose a person in office should die on the day the Senate adjourns, and no information is received by the President or by Congress, and therefore there could be no action, either by the President or Congress, it is still a vacancy during the session of the Senate, but the President cannot fill the vacancy.

Mr. HENDERSON. This amendment only applies to the appointment of the same person who has once been rejected.

Mr. JOHNSON. I am speaking now, not of your amendment, but of the doctrine held by the Senator from Illinois. Now, the particular inconvenience, and it seems to me, the gross injustice, of a provision of that sort would be avoided by striking out, if the amendment is to be passed at all, in the seventh line the words" or not consented to before the adjournment thereof." It would then read:

And whose appointments having been submitted to the Senate have been rejected, no money shall be drawn from the Treasury, &c.

I agree with the Senator from Ohio that he has no right, under the original appointment of the President, to continue in office after the adjournment, because his commission expires with the adjournment; but the next clause of the amendment deprives the President of the authority to reappoint him. If the words which I have just read be stricken out, the power to

reappoint would apply only to those whose nominations have not been acted upon, denying the power to appoint those whose nominations have been rejected. I suppose that will answer the purpose the honorable member has in view.

Mr. HENDERSON. I do not know that I have any serious objection to the modification suggested by the Senator, provided he will make the amendment at the end of line twelve instead of the seventh line. I will insert the words "so rejected by the Senate," at the end of the twelfth line, so that it will read:

And if any such person so rejected by the Senate shall after such adjournment be appointed to the same office, no money shall be drawn, &c.

The PRESIDENT pro tempore. That modification will be made as suggested by the

Senator.

Mr. GUTHRIE. I feel very much indisposed to vote for this amendment in any shape in which it has been put or is likely to be put. The Constitution, which invests the nomination and the appointment in the President, has provided for vacancies which may occur during the recess. The framers of the Constitution knew that this Government in all its branches would require officers necessarily in the different localities to carry it out, and they knew that vacancies would occur when Congress was not in session and when the advice of the Senate could not be taken, and they provided that those vacancies should be filled, and they allowed no restriction upon the President in the selection of the individuals to do it. Now, I think in order that the Government may be carried on and the laws faithfully executed, this provision for appointments during the recess of the Senate was a wise provision and should receive a liberal and fair construction, so that we shall not fail in having officers. In the best light in which this proposition can be put, it is only restricting the President in the appointment of particular individuals. I can understand why the gentleman wants to keep a man who has been rejected by the Senate from receiving pay; but I cannot understand why he should wish to deny pay to the man on whose nomination the Senate have not had time to act, or whom they were not willing to take the responsibility of rejecting, and thus allowed it to go over. is proposed to restrict the President from appointing him, and to declare that he shall depend upon the will of the Senate at the next session of Congress. I am satisfied there is no just reason for depriving any individual who has been nominated to the Senate for an office, and they have not acted upon the nomination, and he has filled the office and discharged the duty, of his pay.

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Mr. SHERMAN. I will state to the Senator that that has been modified so as to confine it only to cases where the officer has been actually rejected by the Senate.

Mr. GUTHRIE. When I read the amendment it was the other way.

Mr. HENDERSON. I have modified it in that respect.

Mr. GUTHRIE. It was liable to the objection, and the whole proposition is distasteful to me, because it strikes at individuals instead of striking at principles. The individuals who are appointed are not to be paid, though they fill the offices and it is within the power of the President, and he is bound to see that these offices are filled, so that the public service may be discharged by competent individuals. It is his duty to do so, and yet by this provision you attempt to restrain him in the discharge of that duty by selecting certain persons and saying if they are appointed they shall not be paid for discharging the duty of the offices. I think we have no right to curtail his power in the premises, and I think we ought not to set the example of thus encroaching upon the President's prerogative of appointment. looks to me as if we were beginning to make a little war on his appointments before they are made. I do not think that is becoming the Senate. I shall therefore vote against the amendment in all its shapes.

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Mr. TRUMBULL. I am quite aware of these opinions of the Attorneys General, commencing back some thirty or forty years ago. The Attorneys General are the appointees of the President, and we know that they hold their offices at his will, and we know that when some persons have filled the presidential office they have not allowed persons to hold Cabinet offices who did not agree with them in opinion. I do not mean to derogate from the high character of the gentlemen who have filled the office of Attorney General in this country. They have been very able men, distinguished men, and they have given opinions upon the clause of the Constitution which I have read, but I really think those opinions will not bear the test of examination. If you bring those opinions to the language of the Constitution, I think you will see that they cannot be sustained. A mistake has arisen in the Senate in supposing that the President can appoint to office at any time. The President cannot appoint an officer either in the recess of the Senate or during the session of the Senate. The Constitution of the United States has not put the appointing power in the President's hands, but it has put it in the hands of the President "by and with the advice and consent of the Senate ;" and he can no more appoint an officer without the advice and consent of the Senate than he can make a treaty without the advice and consent of the Senate. He can do neither. The language of the Constitution is peculiar. This is the language:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, embassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."

Then follows an exception authorizing Congress by law to vest the appointment of inferior officers either in the President alone or in the courts of law or in the heads of Departments. That is not material to the question we are now discussing.

Here, then, is the appointing power given to the President, by and with the advice and consent of the Senate; and that is all the appoint ing power that is given in the Constitution of the United States. The men who framed this Constitution saw that the Senate might not always be in session; there might be a difficulty in consequence of vacancies occurring by death or resignation while the Senate was not in session, and it would be impossible to fill that vacancy or to have the duties of the office discharged unless a power was vested in somebody temporarily to detail a person to perform those duties; and hence they added this clause:

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session."

Now, what shall the President have power to do? To "appoint" persons? Not at all; but he shall have power to "fill up vacancies by granting commissions which shall expire at the end of the next session." The vacancy exists all the time; and if the President desires to have that person to whom he has granted a commission to fill up the vacancy continued in the office, he nominates him to the Senate and he is confirmed-not on this commission that was granted; that is not the practice. If a postmaster in the city of Baltimore had died in September last, and the President had designated A B to discharge the duties of postmaster at Baltimore on the 1st of October by granting him a commission to expire at the end of the present session of the Senate, and he thinks proper to appoint that same person to the office of postmaster in Baltimore, this designation that he has made by giving the commission is not what comes before us at all; but he sends his name in to us, and asks the Senate to advise and consent that he may appoint this man (whom he detailed by giving him a commission to act there