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Mr. HOWE. The Senator will allow me to explain. The question upon which he and I would differ, I presume, is whether the exist ing vacancy was occasioned by the displacement of Mr. Stockton. My own impression is that the vacancy which exists is a vacancy which occurred by the expiration of the term of Mr. Ten Eyck. If that occurred during the session of the Legislature, the Governor cannot appoint, but if it occurred during the
until the Senate should meet) to the office, and his commission dates from confirmation, and this designation that he had given him a commission to expire at the end of the session goes for nothing; that is the end of it.
Mr. COWAN. Is he not a good postmaster until the end of the session, even though his name should never be sent in and somebody else's should be sent in?
Mr. TRUMBULL. It is not an appointment at all. It is a person acting in that place by virtue of the power vested in the Constitution.
Mr. COWAN. The word "fill" is used instead of "appoint."
Mr. TRUMBULL. Yes, sir; and there is some meaning in that; there was a reason for that; but the Attorneys General say that the President may fill any vacancy that exists during the recess of the Senate.
Mr. COWAN, Not "which happens." Mr. TRUMBULL. Well, sir, that is not the language of the Constitution, and that language gives no effect whatever to the words 'during the recess of the Senate." If the intention of the framers of the Constitution had been that the President might fill any existing vacancy during the recess of the Senate or any vacancy which existed they would have said so, but that is not what they have said. They have said that he may fill up a vacancy that may happen during the recess of the Senate. These words "may happen during the recess of the Senate" are used in other portions of the Constitution. By reference to that clause of the Constitution of the United States which authorizes the appointment of Senators, it will be found that the Constitution declares that the Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six years? What else does the Constitution provide?
"And if vacancies happen by resignation or otherwise during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature."
The language is precisely the same, "if vacancies happen during the recess of the Legislature." Has it not always been held in this body that the vacancy must happen during the recess of the Legislature or it did not authorize the Governor to appoint? Has not that been decided over and over again, that the Executive of a State cannot appoint a Senator to fill a vacancy in this body unless the vacancy happened during the recess? Is not the fact that it occurs during the recess of the Legislature necessary to authorize the Executive to appoint? That has been decided over and over again, and is the settled construction of the Constitution of the United States, admitted by everybody. How often has it happened that States have been partially unrepresented in this body just from the fact of the Legisla ture's failing to elect. We have one such case now from the State of New Jersey. The Legislature was in session when a vacancy occurred here by the decision of the Senate that Mr. Stockton was not entitled to his seat; and the Legislature has since adjourned. Does anybody suppose that the Executive of New Jersey has a right to fill that vacancy? The Senator from Wisconsin [Mr. Howe] says he does.
Mr. HOWE. You say the vacancy happened by the removal of Mr. Stockton. Mr. TRUMBULL. Yes; and I does say, anybody contend that the Executive of the State has authority to fill that vacancy? Mr. HOWE. Yes, sir; I say it. Mr. TRUMBULL. It is well settled the other way; and I did not suppose that anybody held that doctrine. It has been decided, I do not know how many times, but a number of times, where the question has been brought up in the Senate, and it has always been decided that the Executive cannot appoint a Senator to fill a vacancy which existed while the Legislature was in session.
Mr. SUMNER. There is another element in the New Jersey case.
39TH CONG, 1ST SESS.-No. 133.
Mr. TRUMBULL. Does the Senator from Wisconsin hold, then, that after a Legislature has intervened the Executive can then act? Suppose the vacancy did occur during the recess of the Legislature; suppose a Senator were to die and subsequent to his decease the Legislature of the State from whence he came meets, fails to elect a Senator, and adjourns, does the Senator from Wisconsin mean to say the Executive can then appoint? The Legislature of New Jersey has been together since the expiration of the term .of Mr. Ten Eyck. But there would be another and a conclusive answer to the Senator's suggestion, and that is this: Mr. Ten Eyck left no vacancy; Mr. Ten Eyck ended his term; and it has been repeatedly held that the Governor cannot appoint to an original term. That is not a vacancy happening. That is provided for by the Constitution in the clause which declares that each State is entitled to two Senators elected for the term of six years; and no Governor has ever undertaken to appoint a Senator for six years. Somebody must first be put into the office, must have commenced the term, before a vacancy can happen; so that I think my friend from Wisconsin will find upon investigation that in both points of view the Executive in the case I have supposed would have no authority to fill the vacancy.
Now, sir, the language, as I said in regard to the filling of a vacancy in the case of a Senator, is the same in the Constitution as it is in regard to the filling of a vacancy in the case of an officer of the United States. They must both happen during recess of the authority which has the right to make the appointment; in the one case the recess of the Legislature of the State, and in the other the recess of the Senate of the United States. If it were not so, it would be very easy to dispense with that provision of the Constitution which has vested the appointing power of all officers in the President by and with the advice and consent of the Senate, because the President could make appointments (if you call the filling up of a place by a commission an appointment) the moment the Senate adjourned, and continue in that way to make them as often as the Senate adjourned, and keep in office whomsoever he pleased, which would be manifestly a perversion of the meaning of the Constitution.
This whole question was submitted to the Committee on the Judiciary in 1863. It is no new question, and the Senator from Kentucky, if he will look into the subject, will find that it is not an attack upon the Executive. This is no new proposition in this body.
Mr. GUTHRIE. The Senator will permit me. I did not charge it as any attack upon the President. I charged it as an attack upon some people who had been nominated before this body and have been rejected or are likely to be rejected or not acted upon.
Mr. TRUMBULL. I have no such motive governing me. I speak of the construction which I believe to be the true one of the Constitution of the United States, without reference to anybody who has been before the Senate or is likely to be before the Senate. In the ThirtySeventh Congress this resolution was submitted to the Committee on the Judiciary:
to some extent prevails in some of the Departments of the Government, of appointing officers to fill vacancies which have not occurred during the recess of Congress, but which existed at the preceding session of Congress, is in accordance with the Constitution, and if not, what remedies may be applied."
My friend from Michigan, [Mr. HOWARD,] who was at that time a member of the committee, wrote an elaborate report, which I hold in my hand, on this subject, in which he reviews the opinion of Attorney General Wirt. He quotes from him the very same language the Senator from Maryland has quoted to-day, and also the opinion of other Attorneys General, and comes to the conclusion, in which the com. mittee was unanimous, that the vacancy must begin to exist during the recess of the Senate in order to authorize the President to fill it by giving a commission to expire at the end of the next session of the Senate. In commenting upon this opinion of Attorney General Wirt, the committee say in this report:
"We equally dissent from the construction implied by the substituted reading, happened to exist,' for the word happen' in the clause. To say that an event which is to happen' during a given period of time may logically be an event which does not happen during that period, but during another and an anterior period, seems to us to be a perversion of language. Happen to exist,' as here employed by Mr. Wirt, is plainly intended as the equivalent of happen to be existing,' or 'in existence,' and is used to imply (though it does not) a continuance or prolongation of the event (the vacancy) from a point of time anterior to the recess. Now, it is the vacancy that is to happen.' Certainly any event which has begun and become complete must be said to have happened. But if a vacancy once exists, it has in law happened; for it is in itself an instantaneous event. It implies no continuance of the act that produces it, but takes effect, and is complete and perfect at an indivisible point of time, like the beginning or end of a recess. Once in existence, it has happened, and the mere continuance of the condition of things which the occurrence produces cannot, without confounding the most obvious distinctions, be taken or treated as the occurrence itself, as Mr. Wirt seems to have done. The words 'during their recess,' are plainly intended to qualify and limit the term 'happen.' The vacancy is to happen during their recess. Now, if the vacancy the President is authorized to fill may (as Mr. Wirt and his successors contend) take place indifferently during the recess or during the session, is it not evident that no meaning or effect whatever is given to the words 'during their recess?' Are not those words practically expunged from the Constitution?
"Again, we see no propriety in forcing the language from its popular meaning in order to meet and fulfill one confessedly great purpose, (the keeping the office filled.) while there is plainly another purpose of equal magnitude and importance (fitting qualifications) attached to and inseparable from the former. In such a case the argument ab inconvenienti has no force, because the anticipated evils on the one hand are counterpoised by those on the other.
But this forced and unnatural interpretation becomes more manifest in its results. Those results would quickly open the way to a practical deprivation of all power of the Senate over executive appointments. For if the President may in the recess appoint to and fill an office which during a session of the Senate was vacant, he may omit to make any nomination at a subsequent session, and at the close of it again appoint him under the idea of filling a vacancy, and so on from session to session. In the hands of an ambitious, corrupt, or tyrannical Executive, this use of the power would soon bring about the very state of things which the Constitution so carefully guards against, by requiring, in express terms, that the advice of the Senate shall first be taken, and its consent obtained before an appointment shall be made. We do not hesitate to say that this great safeguard of the public rights, interests, and peace is practically prostrated and destroyed by the insidious and, to our minds, totally unfounded construction which has been forced upon the clause.
"The committee, in considering the subject, have not overlooked the subsequent opinion given by Mr. Attorney General Taney, in 1832, and that of Mr. Legaré, in 1841. Although the latter thinks the question one of no difficulty, and it is, in his mind, so plain as to admit of no doubt, whether it be considered as one of pure legal science or as matter of public expediency,' he carefully avoids putting it upon the ground taken by Mr. Wirt, that the word 'bappen' may be construed to mean happen to exist;' which, as was too plain, at once revolutionized not only the letter but the apparent intention of the clause; but, with a far more adventurous spirit of interpretation, puts the claim of power upon the provision that the President shall take care that the laws be faithfully executed.""
Mr. Legaré puts it upon that clause of the Constitution, as if under that the President of the United States derived any authority to appoint men to office in a different mode from that specifically and in the very terms provided by the Constitution itself. I will not read the whole of this report though it argues more clearly than I can do in any extemporaneous remarks, the meaning of this clause of the
vacancy during the recess of the Senate and
Constitution, and comes to the conclusion that the vacancy must begin to exist during the recess of the Senate in order to authorize the President to issue a commission. In reply to the question of inconvenience which was put by the Senator from Wisconsin, [Mr. DooLITTLE, the committee show that there is no force in that, because the same inconvenience arises now, when the Senate is in session. Nobody will pretend that the President can issue a commission to fill an office while the Senate is in session. Suppose that the postmaster in the city of Washington dies to-day, does anybody pretend to say that the President can issue a commission to a man to fill his place to-morrow?
Mr. COWAN. Yes.
Mr. TRUMBULL. Do I understand the Senator from Pennsylvania to say that he can do that when we are in session?
Mr. COWAN. Yes.
Mr. TRUMBULL. Well, sir, I undertake to say that there is not an instance in the history of the Government where ever an attempt was made to do it. Nobody ever pretended that it could be done, and there is not an instance of its having been done in the history of the Government. I venture to say that where a death occurs while the Senate is in session the office cannot be filled in any way until the President nominates to this body and we advise and consent to the nomination. I undertake to say it has never been done, and no President has ever attempted to do it.
Mr. COWAN. What is to become of the office in the mean time?
Mr. TRUMBULL. The office is vacant until the President nominates, and by and with the advice and consent of the Senate appoints, some one to fill it. There is no pretense of any authority in the Constitution for the President to appoint a man to an office while the Senate is in session; that is, to an office that requires the advice and consent of the Senate; I am not speaking of inferior officers whom the law has authorized the President to appoint without the advice and consent of the Senate. There is no pretense that he can do it, and during the nine months we are in session if a judge of a court, if a postmaster, if a receiver of public lands, if any officer dies or resigns the office is necessarily vacant until by the advice and consent of the Senate some person is appointed to fill that place.
Mr. HENDRICKS. For my personal satisfaction I wish to ask the Senator if we have got to stay here nine months this session. There is an anxious inquiry about the time when we are likely to adjourn. The Senator suggests nine months, and I want to know if that is the time we are to stay here.
Mr. TRUMBULL. We have sometimes staid here nine months. I was speaking of a hypothetical case; I supposed an instance of the postmaster in Washington dying. I hope he is to live many years, and I hope that we may have no occasion to confirm anybody to fill the office in consequence of his death, either during this or any subsequent session as long as the Senator from Indiana and myself may be here. I spoke of what would have to be done in consequence of his decease. But the Senator is well aware that sessions of Congress do sometimes last nine months. The first session of Congress in which I had the honor to serve did not adjourn, I think, until September, and we had met in the December previous.
intend to say a word in this discussion, and if I had not spoken out of meeting I should not be called upon to do so. I did remark, intending it as a side remark to the Senator from Illinois, that I held that if the vacancy which existed in the representation from New Jersey was not occasioned by the displacement of Mr. Stockton, it might be filled by the Governor of New Jersey. I am not called upon to defend that proposition, not having very well considered it. The Senator, however, quoted me as making the statement, and I will say now that I do hold that the vacancy which exists in the representation of the State of New Jersey here is a vacancy which happened, not in consequence of the vote of the Senate upon the right of Mr. Stockton, but happened by the expiration of the term of service of Mr. Ten Eyck, the last Senator chosen by the Legislature of that State to sit in this body. How the fact is -whether that term expired during the recess of her Legislature, or during the term of the sitting of the Legislature-I do not know. I supposed it happened during the sitting of the Legislature, and therefore was a vacancy to be filled by the Legislature, and not by the appointment of the Governor; but if it hap
Mr. HENDERSON. I am not aware of any opinion on that point, and I agree with the Senator in regard to it as a question of law.
Mr. TRUMBULL. The Constitution is very clear. The President has no authority to fill an office that becomes vacant during the session of the Senate. It is only when the vacancy happened during the recess of the Legislature, I
think it is a vacancy to be filled by the Gov-
pens during the recess that he can give a tem-
Mr. COWAN. Usually the surveyor of the
Mr. TRUMBULL. I think not the surveyor
Mr. MORGAN. He did in the case in New
Mr. TRUMBULL. Mr. King died during
Mr. HENDERSON. With the Senator's permission I will state that his whole argument, although of course it is in support of the proposition, goes much further than I pretend to go. I may concur with him in many of the positions taken by him, but I have drawn the amendment with a view to the opinions of the Attorneys General, taking it for granted that they were the law. I concur with him in many of the points made rather than with the Attorneys General, but he is mistaken when he supposes that no opinion has ever been given to the point that where the President fills &
Mr. TRUMBULL. I said that while the Senate was in session if a vacancy occurred it had never been pretended that the President could fill by appointment that vacancy without the advice and consent of the Senate while we were in session.
Mr. COWAN. Even temporarily?
I did not mean to take up so much time in arguing this proposition. I am aware that it goes further than the Senator from Missouri has provided, and I am for going further if it is necessary; I am for providing that no man shall receive compensation in any shape or form out of the money of the people for exercising the duties of an office to which he has no constitutional right.
Mr. HOWE. Mr. President, I did not
Mr. EDMUNDS. I wish to call the atten. tion of the Senate, and of my friend from Wisconsin, to the case of Mr. Phelps, a Senator from Vermont in 1853. A vacancy in the representation from Vermont occurred by the death of Mr. Upham. Mr. Phelps was appointed by the Governor to fill the vacancy; and the Legislature at its next session, on a political contest, failed to agree upon any person to fill the unexpired term. Mr. Phelps again took his seat in the Senate in the December following-December, 1853-and the question arose as to whether the appointment of the Governor had expired, or whether the Governor had further power, and it was decided after full debate and not upon political grounds, as the Senate was divided irrespective of politics upon the question, by a vote of 26 to 12, that Mr. Phelps was not entitled, under the appointment of the Governor, to sit. I believe that has been followed since.
Mr. HOWE. I was not aware of any decis ion on the point. The opinion which I submitted to the Senator from Illinois was an offhand opinion. The language of the Constitution is that "if vacancies happen by resignation or otherwise, during the recess of the Legislature of any State," which I understand was the case in Vermont in the instance alluded to, "the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies." I suppose the decision alluded to by the Senator from Vermont turned upon the force of this last clause of the section; and it may be correct. My own opinion was that if it was a vacancy that happened in any way during the recess of the Legislature, it was a vacancy to be filled by the Executive, and to be kept filled by the Executive until the Legislature shall have discharged the duty imposed upon it here. If the decision of the Senate has been to the contrary, I am rather inclined to believe that the decision of the Senate will stand, and that my own opinion will be overruled.
Now, Mr. President, I wish to say one word upon the pending question which I should not have said had I not taken the floor to explain myself. Touching the constitutional question which is argued here as if it were involved in the pending amendment, I have to say, in the first place, that it does not seem to me that there is any such constitutional question involved; but if it be, then I hold that under the first clause of this portion of the Constitution which has been referred to, the Senate is made by the Constitution a constituent portion of the
appointing power. The language is, speaking || fuse to pay any postmaster or any other officer. of the President, that
Of course they act at their peril. If they act on reasons which are not satisfactory to the country, they will suffer for it as they should; but they are the judges of the question what officers are to be paid, what offices are to exist independently of the offices named in the Constitution itself, how much each one of those officers should receive and when they are to receive it. It is in the exercise of this authority that we are called upon to adopt this amendment. It is by virtue of this authority that I take it we can clearly adopt this amendment without violating the Constitution. The question will still remain whether the fact that an officer has been nominated and has been rejected by the Senate, the coördinate branch of the appointing power, is of itself a sufficient reason for refusing to pay such an individual. For myself, holding that it is a sufficient reason, I shall vote for the amendment. I do not think the Legislature has a right to appropriate a dollar of the public funds for the payment of an officer who the Senate has said is unfit to hold office.
"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
He shall nominate, and by and with the advice and consent of the Senate shall appoint, all these officers. I cannot have a doubt but what the framers of this article, the men who employed this language, meant to say to the President not merely that he shall present a man to the Senate for an office, but that he shall nominate a man who shall be approved by the Senate, and with the approval of the Senate shall appoint the men to fill these offices. In my judgment, the President does not discharge the duty which this clause of the section devolves upon him when he has simply sent a name to the Senate. His duty is discharged only when he shall have obtained the consent of the Senate to the nominee whose name he shall have sent in.
I know there have been industrious efforts made for very many years during our history to persuade the country that here was a prerogative vested in the President of the United States which made him really the appointing power, and which subjected every officer in the United States to his control. Such may be the effect of the interpretation placed upon this clause of the Constitution by the Attorney General from whose opinion the Senator from Maryland has read. I am inclined to think that is the effect which would follow if that interpretation were correct. That it is not correct seems manifest from the plainest and most natural interpretation of the words employed. But inasmuch as a vacancy may happen when there is no Senate in being to give its assent, there is another provision incorporated into the Constitution, and that provision, I think, authorizes the President to commission and thereby to fill up a vacancy which happens during the recess of the Senate, which happens at a time when there is no Senate in being to give its assent to a nomination. What is the tenure of the commission granted by the President under these circumstances? The language of the Coustitution is that it shall expire at the end of the next session of the Senate. If there had not been any usage to the contrary, which I believe there has been, I should have supposed that a commission granted under these circumstances did confer an office upon the holder of the commission until the expiration of the next session of the Senate, and that any appointment made during the Bext session of the Senate by a nomination of the President would take effect from and after the expiration of the session of the Senate. If there had not been a usage to the contrary, should have supposed that was the true interpretation of this clause, but I believe the usage is that this commission, which is granted to an officer in order to fill a vacancy happening during the recess of the Senate, is vacated the moment another individual or that same individual is nominated to the Senate and is confirmed by the Senate.
But, Mr. President, whatever may be the true interpretation of these clauses in the Constitution, whether they give to the President the right to dispense with the authority of the Senate altogether or not in making appointments, I take it there can be no manner of doubt that they do not give the President unlimited control over the finances, the resources, the revenues of the country. It is, it seems to me, optional with the Legislature how much they will pay the public servants, those of them whose compensation is not fixed by the Constitution, and when they will pay it, and what ones they will pay; and therefore it is that 1 said at the outset that I did not think there was any constitutional question really involved in the amendment offered by the Senator from Missouri. I take it there is no question but what the Legislature may constitutionally re
Mr. HOWARD. I do not know, Mr. President, whether I perfectly understand the provisions of this amendment. I beg leave to call the attention of the Senator from Missouri to it. The amendment speaks of "all cases in which persons have been appointed during the recess or during the session of the Senate as assistant postmaster or other civil officer under the Government," &c. Does he intend to say that where there has been a regular commission issued to fill a vacancy that occurred dur ing the recess of the Senate no money shall be paid in compensation for services rendered under that commission in any case?
Mr. HENDERSON. No. I mean to permit the appointment to hold good until the adjournment of the succeeding session of the Senate; and after the last day of the succeeding session of the Senate I propose that he shall not be paid. The Senator will see, by reading the whole clause, that I submit to the opinions of the Attorneys General, who hold that appointments made under such circumstances are good. Of course, in some cases, the cases alluded to in the Constitution itself, there will be no doubt; but the Attorneys General have carried that doctrine much further; and I submitted to their opinions in the absence of the very able opinion that the Senator himself has given on the subject, for I really did not have time to examine it, and was not aware that a report had been made until the other day; and I have not had time to examine it since. I submitted to the opinions of the Attorneys General, and only carried it to the extent that I thought we properly could go in accordance with those opinions. The Senate will see that it only proposes to deny the salary after an adjournment of the Senate. I afterward inserted "after the expiration of thirty days;" and when the Senator from Indiana proposed an amendment in the twelfth line I made another modification. If the Senator from Michigan will permit me now to do so, I ask to withdraw the words "after the expiration of thirty days," because they are unnecessary now, since I submitted to the amendment suggested by the Senator from Maryland on the same subject.
The PRESIDENT pro tempore. The amendment is in the power of the mover, and those words will be stricken out.
Mr. HOWARD. I ask, then, that the amendment be read as it now stands.
The Secretary read it, as follows:
the Senate 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,
And be it further enacted, That in all cases in which persons have been or shall be appointed, either during the recess or session of the Senate, as assistant postmaster or other civil oflicer 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 so rejected by
· Mr. HOWARD. Mr. President, there are some things in regard to offices which I regard as certain and settled, and the first is, that no office can exist in the United States except under a law of the United States. The second is, that the President of the United States has the power of nominating candidates for office to the Senate, but that he has not the power of appointing them to office except by and with the advice and consent of the Senate, unless in cases of vacancy that may happen during the recess of the Senate.
I am aware, and so are we all, that the practice has been very common heretofore during the existence of the Government for the President of the United States to assume to fill vacancies by way of giving commissions where vacancies have occurred, not during the recess of the Senate, but during the session of the Senate; and it was on that particular point that the Senate saw fit to instruct the Judiciary Committee a few years ago to give their opinion, and my friend from Illinois has read to the Senate the result of their consideration on that subject.
Now, sir, I hold that it is the plain intention of the Constitution that where the President has authority to grant commissions for the purpose of filling a vacancy, that vacancy must have begun to exist, not during the session of the Senate, but after the close of the session of the Senate and during the recess of the Senate. I am quite aware that the Attorneys General of the United States, and I think perhaps without any difference of opinion among them as to the result at which they have arrived, have entertained the idea that a vacancy occurring during the session of the Senate may be filled by commission after the recess of the Senate has commenced. The Committee on the Judiciary took this question into consideration, and they held, and I think very properly held, that was a wrong and erroneous view of the Constitution. The Constitution declares 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."
An eminent Attorney General of the United States, Mr. Wirt, I think, took very great liberties with this language when he held that the word "happen" in its connection here may be so construed as to cover a case of vacancy where the vacancy in the office had begun to exist during the session of the Senate. That was the construction which he put upon that language-I think a very strained and untenable construction. The Attorney General, Mr. Legaré, in 1841, was called upon to give an opinion upon the same question, and he held, not that the word "happen" may receive that broad construction, not that it may be made in that connection to imply a continuation of an event, but that the President necessarily had this power to fill a vacancy that had occurred during the session of the Senate in virtue of his power to take care that the laws are executed -two very different sources of power. I do not agree with either of them. I think it is high time that the Senate of the United States should act upon this most grave and serious subject. I do not admit that the practical construction thus given by the executive branch of the Government, for a long time, indeed, is the true and accurate construction to be given, and in saying this I am not unaware, I trust, of the great weight which such a long-continued practical construction of the language of the Constitution is entitled to. Certainly very great inconveniences may arise, and often do arise, from a departure from the practical construction of the law; but in such cases as this it seems to me that the language of the Constitution is too plain to be mistaken. The report from which the Senator from Illinois read contains some further observations on this question
of convenience, and with the leave of the Senate I will read a few paragraphs:
been an opinion given by any incumbent of that office upon any question which he did not believe to be in itself sound. It is possible that party may have unconsciously influenced his judg. ment; but if it be true that officers of that kind might be influenced by party considerations, I suppose it is equally true that Senators of the United States may unconsciously be influenced by like motives; that their opinions, therefore, are to be taken with some allowance on that account. But the opinions which have been the subject of comment do not stand alone upon the authority of the eminent men by whom they have been given. They have had the sanction of Congress, the sanction of this great body, the sanction, of course, of the Presidents who held that high office during the period that the opinions were pronounced, the sanction of Washington, of Jefferson, of Madison, of John Quincy Adams, of Monroe-men not eminent on account of any military service, but eminent for their legal knowledge as well as for their undoubted, and now, (however it might have been attempted to throw spots upon their reputation during the period some of them held that high office,) now, in the opinion of the world, spotless reputation; and until the learned Judiciary Committee of the Senate upon the occasion adverted to by the honorable Senator, the chairman of that committee, deemed it their duty to express a different opinion, as far as I am advised the opinion pronounced by the law officers of the Government and acted upon by the several Presidents never was questioned.
Now the honorable members tell us-particularly the honorable member from Michigan, who has just closed-that the language of the Constitution is so plain that it admits of no doubt. The honorable member risks a good deal of his own reputation, high as that is, when he pronounces so authoritatively that the question is free from all doubt, when from the beginning of the Government up to the period when that report was made, founded upon the hypothesis that there was no doubt, the opinion of every branch of the Government was that the true interpretation of the Constitution was directly the reverse of what he supposes now to be its only admissible interpretation.
What is the inconvenience to arise from adopting the construction of the executive department of the Government? The honorable member supposes, and that is his proposition, that the vacancy, if existing in point of fact for the first time during the actual session of the Senate, cannot be filled by the Executive if the Senate fails to fill it. Now this may happen; this has happened: a man dies during the session of the Senate; his death is not known to the President, is not known to the Senate; but his death creates a vacancy, and if it cannot be filled one of two things will be the result: that the office, however important it may be to the due administration of the Government, is to remain vacant for the eight or nine months that may elapse from the termination of one session to the beginning of another, or that the President must call the Senate together.
Does the honorable member mean to assert that in a case of that description the President has no authority to appoint? If he will look at these opinions he will find that in a case of that sort it never was doubted that the President had the authority to appoint; and the same principle has been adopted in relation to that principle of the Constitution which relates to the filling of vacancies in this body. The language in one respect is the same-if a vacancy happens during the recess of the Legislature the Governor is to appoint. The honorable member says that the uniform construction of that clause has been that if in point of fact he who was Senator ceases to be a Senator by death or by any other cause while the Legislature of his State is in session the place cannot be filled. What is the case of my friend, the honorable member from Vermont, [Mr. POLAND?] I looked at it with some concern when I heard of his appointment. I knew his reputation before
"We are aware that this construction has been, from time to time, sanctioned by Attorneys General, and, as recently as 1855, by Mr. Cushing, and that the Executive has, from time to time, practiced upon it. We are also aware of the great weight which such a continued practical construction is entitled to in considering the meaning and intent of a doubtful clause in a public act. But we have not been able to convince ourselves that such is the character of the provision. We think the language too plain to admit of a doubt or to need interpretation; and where such is the case, the language must not be wrested from its natural sense to avoid a supposed inconvenience.
"And it is quite apparent, from all the arguments of the Attorneys General, that the real foundation of their conclusions is the assumed inconvenience to the public service of permitting an office to remain vacant during the recess, where the vacancy has happened during the session and remains unfilled at its close.
"Cases, it is true, may occur, as they have occurred, where a vacancy may subsist after the session in consequence of the refusal of the Senate to consent to. or of its omission to act upon, a nomination; and exactly the same inconvenience may result, as it has on numerous occasions resulted, from the omission of the President to send in a nomination. It is also an inconvenience that a vacancy should continue for any length of time, whether occurring during the session or the recess, and yet vacancies must, from the very nature of the case, thus continue for a longer or shorter period. A similar inconvenience must necessarily have happened if the Senate had had no power whatever over appointments, and occurs from necessity in the most absolute Governments. It is unavoidable. All this, however, was clearly foreseen by the framers of the Constitution when they used the language giving the power; and it strikes us as far more rational to conclude that they regarded this temporary inconvenience as outweighed by the advantage they had secured by requiring all appointments to office, except in cases of vacancy happening in the recess, to receive the sanction of the Senate. The plan came as near to perfection as the nature of the case and the preservation of any effective power on the part of the Senate would admit."
Mr. President, I am for restraining, so far as is possible, the action of the executive branch of the Government to appointments to office within the strict limits of the Constitution. I think that during the last year or two we have had instances enough of an assumption on the part of the Executive to appoint to offices which had not even been created by law, and unless the Senate shall interpose effectually, and at a timely moment, to interrupt this current of events it is impossible to tell to what evils it may not lead. I shall, with a great deal of pleasure, vote for the amendment of the Senator from Missouri, because I think there ought to be just exactly that restraint imposed upon the appointing power.
Mr. JOHNSON. Mr. President, what I rise for the purpose of saying is not to discuss the particular amendment as now modified by the mover of it, but with a view merely to state the opinions which I entertain upon the questions discussed by the honorable member who has just taken his seat, and by the chairman of the Judiciary Committee. The honorable chairman, at the same time saying that it was not his purpose to weaken the authority of the Attorneys General, stated that perhaps their opinions were not entitled to the weight that should be otherwise accorded to them because they held their office under the President, and they may have fashioned their opinions to suit the views of the President.
he came into the body, and I was exceedingly solicitous that it should turn out that there was no objection to the validity of his appointment. Judge Collamer died during the session of the Legislature of Vermont; but the fact was not known to the Legislature, and upon looking at the question with all proper solicitude, for the reason I have just stated, I found that it had been uniformly held that the authority of the Executive to fill a vacancy did not depend upon the mere fact of an existing vacancy, but depended upon the existence of two facts: first, vacancy existing, and second, the knowledge of the vacancy being possessed by the Legislature. Our friend from Vermont was received without objection on the part of anybody. Does any one doubt that he is entitled to his seat by virtue of that executive appointment? And yet, without giving a liberal interpretation to the word "happen," as it is found in that clause of the Constitution, he is not here by virtue of a valid appointment.
But there is a difference between the language of that clause and the language of the clause which is immediately before the Senate. The language of the clause before the Senate is:
Now, if the honorable member had had the experience which at one time it was my good or bad fortune to have had, I am sure he would not have indulged in a remark which was calculated to reflect upon the independence of those who have heretofore filled that high office. The Senate are aware, and the country is aware, that in former days it was filled by the most eminent men of the land; men as far incapable of being influenced by any political consideration, and certainly as far from being influenced by any opinion which the President might entertain, as the honorable member from Illinois, or anybody else, could be in any situation in which they might be placed. They are appointed under a law passed as far back as 1789 for the very purpose of being the legal advisers of the President and of the several heads of Departments. They are, therefore, qugsi judicial officers, and as far as I am advised, without any exception, from the time of their appointment to the present hour, there never has
"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."
The language of the corresponding clause in relation to the filling of vacancies in this body is:
"If vacancies happen by resignation or otherwise during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancy."
The appointment in that case terminates with the beginning of the session of the next Legisla ture; the appointments in the case under con sideration do not terminate at the meeting of the next session of the Senate of the United States, but continue until the termination of that session. And there is a difference in another respect, a practical difference. Looking to the wholesome administration of the Government, the Government can go on without the Senate being full. Whether Vermont, for example, was represented as she is now represented, or was not represented until a Legislature met and should choose the same members or choose somebody else, was a matter, so far as the actual administration of the Government was concerned, of little or no moment; but how is the executive branch of the Government to be carried on upon any such doctrine? Your Secretary of the Treasury dies, dies this morning; you do not hear of it; you adjourn before notice of the fact reaches you; are the finances of the Government to remain unadministered until we meet here next December? And so in relation to all the other appointments. The laws cannot be executed without your executive officers; the judgments of your courts cannot be enforced without your marshal; and if the Senate reject an appointment made by the President, or decline to act upon an appointment proposed by the President, and adjourn, are your courts to be practically closed? Certainly that will be the result if it be true that in such case there is no authority in the Executive to supply the vacancy unless the Senate shall be called together again, and the practical result might be that we might be called together from month to month. The mischief arising from that, the inconvenience resulting from that, the expenditure consequent upon that, is infinitely greater than to give the President the power to appoint a marshal or a Secretary of the Treasury, and to have the judgments of the courts, in the case of the first of these officers, executed; and so in relation to all other departments of the Government.
But my friend from Illinois and I, and perhaps for the same reason, have been very fond in past times of the niceties of special pleading, and he does not seem to have gotten rid of his love of them yet. He seems given over to technicalities, and pushes them to an extent in the construction of the Constitution even further than I have heard them applied to the construction of a plea in abatement. Now,
long, "no" on that question. He says that the words are not plain; but he will allow me to say, in reply, that to my apprehension they are plain. And I submit to the Senator that even in his opinion they would not be otherwise than plain if he were not led astray by that line of names to which he has so often alluded, beginning with that name which we all respect so much-William Wirt. Mr. Wirt, in his opinion, as the Senator reminds us, has undertaken to give an interpretation to the phrase "that may happen." Permit me to say that in my opinion that interpretation is latitudinous beyond apology. There is nothing, according to my mind, in any rule of construction or interpretation that will justify such a definition as he has chosen to attach to that phrase. And permit me to say that that definition begins with William Wirt. The other names cited by the Senator simply follow Mr. Wirt; they say ditto to Mr. Wirt. Therefore, if Mr. Wirt was wrong they were all wrong, for I do not think that any one of them, in the opinion that he gave, added to the original authority of Mr. Wirt. They added nothing in reason, in history, or in exposition of any kind. I say, then, I must carry you back to the very text of the Constitution, anterior to the opinion of Mr. Wirt; and if I could get my learned friend from Maryland to go back of Mr. Wirt, and just put him face to face with this text of the Constitution, without Mr. Wirt as the torch to light the
way and then all these other torch-bearers after him, I believe there can be no doubt how that learned Senator must pronounce, because he has in him too much knowledge of the Constitution, too much knowledge of law, and too much common sense to attach such a definition to that phrase as he now willingly adopts on the authority of these names. I say from the authorities of these names, not from the text itself, and not from the reason of the case. Why, sir, what is the natural signification of the term? The language is:
what does he tell us? The power of appointment is not conferred upon the President; the clause relied for the of showing purpose that he has any power of appointment was not intended to accomplish any such end; the word "appointment" is not in the particular clause; the word "appointment" is to be found in the clause which relates to what he may do with the advice and consent of the Senate; and because the word "appointment" is not in the one and is to be found in the other, the power of appointment in the one does not exist, although it exists in the other. What is the power, Mr. President? If vacancies exist they shall be filled by commissions issued by the President. That is the power conferred upon him. When the vacancy existing by the death or the resignation of the antecedent officer is filled, does not the incumbent hold his office by virtue of that commission? Does he not hold it, therefore, by the appointment of the Executive just as substantially as if the word "appointment" was to be found in the particular clause? Who can doubt that? He who did fill it filled it by virtue of the authority of the President to appoint, by and with the consent of the Senate. He who succeeds him in filling it fills it by virtue of the appointment of the President alone during the period for which he is authorized to fill it; so that in both cases the
incumbent is in office by virtue of an appointing power.
I therefore submit, upon either of the two questions to which I have addressed myself, first, that a long-settled interpretation by every branch of the Government of the meaning of this clause is not to be unsettled now by the opinion of any committee of this body. No one has greater confidence than I have in the particular committee by whom the report relied upon was drafted or in the draftsman of that report; but I am sure he will not take it at all in an offensive sense, nor will any member of that committee consider me as meaning to disparage the authority to which each one of the committee is entitled, when I say that perhaps it may be that Pinkney and Wirt and Taney and Legaré and Berrien and Cushing may be right and this committee wrong; and more especially when what Pinkney and Wirt and Taney and Berrien and Legaré and Cushing have said upon the subject has received the sanction of every department of the Govern ment until it first fell under the kind and critical censure of the members of this committee.
Mr. SUMNER. It seems to me, Mr. President, that if the question were now about forming the Constitution, and we were to consider where this power should be lodged, much of the argument of the Senator from Maryland would be very applicable; it would certainly be entitled to very great consideration, but he will allow me to say that he seems rather to have addressed himself to what in his opinion ought to be the Constitution than to what the Constitution is. Now, sir, I prefer to call the attention of the Senator precisely to what the Constitution is. I therefore, if the Senator will pardon me, put aside his very elaborate disquisition on the inconvenience that may ensue if we do not adopt his view. Even assuming that all that inconvenience might ensue, with regard to which the Senator will pardon me if I express great doubt, he will allow me to say that that cannot be an excuse to us for setting aside the text of the Constitution. There is the instrument. The Senator has quoted the words; he will pardon me if I quote
The President shall have power to fill up all vacancies that may happen during the recess of the Senate." Are not the words plain?
Mr. JOHNSON. That is a question. Mr. SUMNER. The Senator says that is a question, but I put it, are not the words plain? Mr. JOHNSON. If the Senator wants me to answer his question, I should say no. Mr.SUMNER. Very well; the Senator has already answered the question in advance by an elaborate speech. His whole speech was a
"The President shall have power to fill up all vacancies that may happen during the recess of the Senate."
What is a vacancy? It is where the office is empty; and that emptiness of the office must come about, must occur, must fall in, if I may so say, during the recess of the Senate. If it does not occur during the recess of the Senate, if it does not fall in during the recess of the Senate, if it is all anterior to the recess of the Senate, then, allow me to remind the Senator, it does not come within the text of the Constitution. It is in vain for him to cite the authority of Mr. Wirt and to give a new-fangled definition to words which are so plain as to require no definition. We all know what the phrase "may happen" means. It is a commonplace phrase of every day use. Its signification is perfectly plain. It must mean that the vacancy in every respect completely must occur during the recess of the Senate.
But now, sir, if I can have the attention of my honorable friend from Maryland, allow me to cite authority against authority. I should prefer to treat this text on the basis of reason alone. Looking at it through reason, independent of authority, I say the conclusion is clear; but against the Senator's authorities I adduce an authority which I know that Senator will listen to with respect. I adduce the authority of one of the founders of this Constitution, one of the ablest of all those who assisted in building this frame of Government, and one of the ablest also of those who assisted in its early administration, the friend and companion of General Washington in his first administration. I mean Alexander Hamilton, who was called expressly to deal with this very question, and who in advance has given the authority of his name to that interpretation of the text which I have already shown reason requires. Now, listen to what Alexander Hamilton said, in a letter to James McHenry, Secretary of War, dated May 3, 1799:
"In my opinion, vacancy is a relative term, and presupposes that the office has been once filled. If so, the power to fill a vacancy is not the power to make an original appointment."
All that is clear. The Senator, of course, will not dissent from that. Then he comes to the precise point:
"The terms, which may have happened"quoting the words of the Constitution. Mr. JOHNSON. Does he say "may have happened? Mr. SUMNER. He says "may have happened."
Mr. JOHNSON. That is not the precise language.
Mr. SUMNER. It is not, but is as he quotes it. The Senator will see that the meaning must be the same, though the quotation may not be strictly accurate. There is no difference which disturbs the sense.
"The terms, which may have happened, serve to confirm this construction. They imply casualty, and denote such as having been once filled have become vacant by accidental circumstances."
Then he goes on; and now I must have the attention of the Senator:
"It is clear that independently of the authority of a special law the President cannot fill a vacancy that happens during the session of the Senate."
That will be found in the fifth volume of Hamilton's Works, page 258. Now, sir, I adduce that as authority in reply to the authority adduced by my honorable friend from Maryland; for he himself, from his very argument, I think, showed us that, independent of authority, he must be with us in our interpretation of this language. I do not doubt that if I could carry my friend back of William Wirt, and put him face to face with this text, he would join with Hamilton, and, as I have already said, with the reason of the case in giving the same signification to this text which we do.
Mr. TRUMBULL. I move as an addition to the amendment now pending the following:
"That no person exercising or performing the duties of any office which by law is required to be filled by the advice and consent of the Senate, shall, till he is confirmed by the Senate, receive any salary or compensation for his services, unless he be commissioned by the President to fill up a vacancy which has begun to exist during the recess of the Senate and since its last adjournment.
Mr. SHERMAN. There is, it is manifest, a difference of opinion upon the question of the pending amendment between members of the Senate. This amendment would be just as proper and just as effective offered as an amendment to any of the appropriation bills. It is more pertinent to the legislative bill or the general civil appropriation bill than it is to this appropriation bill. It is a subject that has already excited some discussion and elicited some difference of opinion. Now, rather than choose between the amendment offered by the Senator from Illinois and that offered by the Senator from Missouri, I suggest to the Senate whether it would not be better to let this subject drop now and let a well-considered proposition be submitted as an amendment to one of the other appropriation bills. We must make some progress with the various appropriation bills. This amendment may just as well be considered at a later stage. For us now to choose between these different propositions would be to prolong the discussion; and I think we had better let both of the amendments drop and pass this appropriation bill and let the amendment be considered at some future stage of our session. I make this suggestion merely to expedite the business of the Senate, for I do think we ought to pass this bill to-day for we have a special order to-morrow and there are other important appropriation bills behind. I did hope that this afternoon we could be able to take up the Army appropriation bill and make some progress with it, but I have already despaired of that. I hope the suggestion I now make will be adopted.
Mr. COWAN. Mr. President, I agree entirely with the Senator from Ohio. I have considered the law as pretty well settled, and it had better remain as it is. If it is to be determined by this body, if we are to make a rule on the subject, we should take a little more time for its consideration than we can