« PoprzedniaDalej »
and a person is appointed to fill that vacancy; the person who holds that office is an officer of the Government, entitled under the law to his salary, just as much an officer of the Government as if he had been confirmed by the Senate in case the vacancy had occurred during the session of the Senate. Suppose that the officer thus legally appointed should die before the Senate could act upon him. In that case he would get no pay at all. Suppose there should be a division in the Senate on the ques tion, and he should not be confirmed by the mere neglect or non-action of the Senate. The officer thus legally appointed would get no pay. I see difficulties in the way. I should like very much, indeed, if it is within our powerI do not say it is not-to have some law passed which may limit and restrain the power of removal during the vacation of the Senate. Indeed, I do not think the question of the power of Congress to limit and control the authority of the President to remove has ever been settled. In my judgment, Congress may by law limit the power of removal; and why? The power of removal is not conferred upon the President by the Constitution of the United States. The Constitution nowhere gives him the power to remove any man from office. It is a mere inferential power, derived from the power of appointment. It was a power denied in the early organization of the Government, and as a Senator has suggested, a resolution affirming it was only carried by the casting vote of John Adams. It was regarded as a question of great doubt. The power of removal is nowhere conferred by the Constitution on the President of the United States in express terms. His power of removal is simply inferential from the power given him by the Constitution to appoint embassadors, ministers, and consuls, judges of the Supreme Court, &c. What is there in the Constitution to prevent Congress from regulating and controlling to some extent the power of removal? Nothing whatever. We have done it in repeated cases. This very point was made at the time we passed the first law organizing the national banks. It was then discussed whether or not Congress could limit or restrain the power of the President to remove a man from office. The first law that was passed expressly provided that he should not remove the Comptroller of the Currency except on such and such conditions. Where do we gain that power? From the Constitution, from the inherent right of Congress to pass laws which are binding on the President. I therefore admit that Congress may by law restrain and limit the power of the President to remove.
But in my judgment the particular proposition which denies to an officer legally appointed during the recess his salary except upon a condition that may or may not happen, is at least a very harsh and violent measure, which I would hesitate very much to resort to. There is a remedy for the evil complained of, in my judgment, and it is without a measure of this kind. I dislike very much to see these propositions attached to our appropriation bills. They are in the nature of conditions to what we ought freely to grant, appropriations to meet the expenses of the Government. I do not like to see them put on in that way; but if the Senator from Illinois or the Judiciary Committee will frame a bill which will limit and restrain the power of the President to remove from office, so that when a man is appointed for four years he shall hold that office during that four years, unless he is removed for cause, to be submitted to the Senate, I will vote for such a proposition, and I say there never was a time when this great question could be more fairly met than now. It is admitted on all hands that at least a jealousy exists between the President and Congress; I will not say war, because I do not think there is a war, but there is a jealousy and a watch..ulness probably on the part of the President and on the part of Congress. What is to prevent Congress now from passing such a law as I have indicated? The majority here is overwhelming. We have no object to accom
plish of a mere partisan purpose. The majority in Congress is perhaps two thirds in a party seuse. What is to prevent now the Judiciary Committee from carefully framing a law prescribing the term of office of the various classes of officers of the Government and declaring that the President shall not remove any one of those officers except for such and such causes?
I venture to say, although the opinion of Mr. Madison has been read to the effect that we cannot control the power of removal, that no great statesman has ever declared that where a man is appointed to office for a period of time fixed by law, and the power is not given to the President to remove him from that office, he can be removed without cause. That power is not conferred by the Constitution, and it is only derived inferentially-a power not to be extended. It seems to me that this is the solution of this whole difficulty. I hesitate very much to prescribe these tests in an appropriation bill, and I warn Senators that we yield an advantage, if I may so say, when we attach these propositions to appropriation bills which must pass in the ordinary course of business. Whoever is President, we must have appropriations to carry on the Government. We cannot justify any measure to restrain even a real, much less a fancied danger, by attaching these clogs and qualifications to appropriation bills. Now is the time, while we have ample power, even by a two-thirds vote in both Houses of Congress, to pass a just and wise law on this subject. I do not see any reason why the law should not now be passed. If so, it would properly come from the Judiciary Committee. It could be there properly considered and framed. The question ought not to be passed on in this informal way as an amendment to an appropriation bill.
These are my views, and I am bound to express them. I desire to accomplish to some extent at least the purpose here indicated, and probably I should go as far as the Senator from Illinois desires to go in this amendment; but I do not think it would be wise for us now to pass a proposition which would declare that an officer of the Government legally appointed under existing laws in accordance with the practice of the Government from the founda tion to this time, shall receive no pay unless we should hereafter confirm that appointment. It is a stretch of power and of law that I think there is no example of in this Government. The case cited by the honorable Senator from Illinois is no parallel case, because that was a case where the appointment was made in violation of the Constitution, where the vacancy occurred during the session of the Senate, and the President undertook during the recess to fill up that vacancy. There was a case where he undertook to exercise a power and confer an appointment which he could not do except by the confirmation of the Senate, and the law properly declared that no money should be taken out of the Treasury for such a bad and informal appointment. But this amendment goes beyond that, and declares that a man shall not receive pay for an office to which he has been legally appointed.
The Senator from Illinois says it is no great hardship, because if a good man is appointed during the vacation the Senate will confirm him; but I ask the Senator whether a man is compelled to hold office in this country upon those terms and conditions. The framers of the Constitution contemplated a necessity impending upon the President to appoint officers during the recess of the Senate, and they provided for it. They are legal officers just as much so as I am. For us at this stage of the session to declare that those persons thus legally appointed shall not receive their pay until the Senate shall act at some future day, and that in the mean time public officers shall transact their business without pay for months, is rather an extraordinary proceeding. Take the case of a revenue officer collecting large sums of money who has to appoint an army of deputies, and in many cases those officers have to.
pay their depaties or employés out of their fees or salaries. You require the officer to go on perhaps for nine months to discharge the duties of the office, paying in the mean time all the expenses of the office out of his own pocket, upon the uncertain contingency of a future confirmation by the Senate, and then you provide that in case the Senate does not see proper to confirm the man, he shall not have anything during all this period of time. That is the legal effect of this amendment; and I hesitate, I confess, to embark in that kind of conditions, but I am perfectly willing to support the Senator from Illinois in a proposition to limit by law the power of the President over all the public officers. The amendment proposed by the Senator from Missouri did not go so far. It contained two simple propositions affecting mainly those that were appointed to fill vacancies occurring during the session of the Senate. It met my approval. The amendment of the Senator from Missouri went no further than the law of 1863, but this goes a great way beyond that, and I confess I hesitate in taking the step.
Mr. HENDERSON. It is true that when this bill was up for consideration a few days ago I offered two amendments, not going the length of the proposed amendment now pending, but I am not disposed to think that this amendment cannot constitutionally be adopted. I think it can. I am not like the Senator from Illinois, either, upon the subject of restraining the power of the President to make these appointments. I freely confess that so far as I am concerned that is my desire. When I first offered amendments to this bill, I was governed by what had been the policy of the executive government heretofore, and the claim of power on the part of the Executive to make removals. I was willing to admit the exist ence of the power, simply because it had been. exercised heretofore. Since I offered those amendments I have examined somewhat into this subject, and I can state to the Senator from Illinois that I have partially prepared a bill covering this whole question, and I design going on and completing a bill which will provide, as I think, for almost every conceivable case. I have, since that time, also examined somewhat into the history of this matter, and I have come to the conclusion-and I hope that it is a conclusion arrived at without any bias or prejudice from existing circumstances -that the President has no power constitu tionally to remove an officer at all.
I am aware that Mr. Madison expressed his opinions repeatedly on the subject. I will refer the Senator from Maryland, who has given the opinions of Mr. Madison in a letter written in 1834, to his opinions given in the first debate on this subject in 1789. I honestly believe that all the mistake that has originated on this subject comes from the determination of the lower branch, and the Senate also, at a subsequent period in 1789 on this very subject. The Senator, of course, is well aware how the question came to be decided in 1789, and I really think it has been used as a precedent from that day to this without any reason for it. The truth of the matter is that it is not a precedent for such removals as are daily made now by the executive department of the Government. You will remember that immediately after the meeting of Congress a proposition was made to establish the various Executive Departments. Mr. Madison moved to amend it. The motion of Mr. Madison was:
"That it is the opinion of this committee that there shall be established an Executive Department to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President."
The debate which has been cited as a precedent upon this subject originated upon that proposition of Mr. Madison. Mr. Smith, of South Carolina, moved to strike out the words "who shall be appointed by the President by and with the advice and consent of the Senate." The ground of his motion was that the Presi
dent had the power to make the nomination by virtue of the provisions of the Constitution; that there was no necessity for providing by law that he should nominate; but that when a law created an office under the United States it was the duty of the President to make the nomination, but the Senate must confirm it; that the use of the words was mere surplusage; and the words were stricken out by a large majority. But the important question then arose; the proposition was made by Mr. Bland, of Virginia, to strike out the other words, "to be removable by the President," and then came the question. Mr. Madison upon that point used the following words, and they are much more clear and explicit than the words he used afterward in his letter to Mr. Coles:
"Mr. Madison did not concur with the gentleman in his interpretation of the Constitution. What, said he, would be the consequence of such construction? It would in effect establish every officer of the Government on the firm tenure of good behavior; not the heads of Departments only, but all the inferior officers of those Departments, would hold their offices during good behavior, and that to be judged of by one branch of the Legislature only on the impeachment of the other. If the Constitution means this by its declarations to be the case, we must submit; but I should lament it as a fatal error interwoven in the system, and one that would ultimately prove its destruction. I think the inference would not arise from a fair construction of the words of that instrument.
After a very long discussion, from which I will read only a few extracts from the speech of Mr. Gerry, who was also a member of the Convention, it was decided by a very large majority that the power of removal should be given to the President. I desire to refer to the remarks of Mr. Gerry on that occasion. He said:
"The Constitution provides for the appointment of the public officers in this manner: the President 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.'
I call the attention of the Senator from Maryland to this opinion of Mr. Gerry, which is of almost as much value as the opinion of Mr. Madison:
"Now, if there be no other clause respecting the appointment, I shall be glad to see how the heads of Departments are to be removed by the President alone. What clause is it that gives this power in express terms? I believe there is none such. If there is a power of removal, besides that by impeachment, it must vest somewhere. It must vest in the Presi
without law. Although there was no positive decision on the point, perhaps the better of the argument was inasmuch as we were in a state of war, even if the President had not the power to appoint those commissioners under the clause which we have been discussing here, namely, that the President, by and with the advice and consent of the Senate, shall appoint embassadors, ministers, consuls, &c., he certainly had the authority under the treaty-making power.
The question came up again in 1827, and I desire to refer to the opinions that were then expressed. In 1827 the Senate appointed a committee to examine into this subject. That committee consisted of Mr. Benton, who was the chairman, Mr. Macon, of North Carolina, Mr. Van Buren, of New York, Mr. Dickerson, of New Jersey, who was afterwards Secretary of the Treasury, Mr. Johnson, of Kentucky, Mr. White, of Tennessee, Mr. Holmes, of Maine, Mr. Hayne, of South Carolina, and Mr. Finlay, of Pennsylvania. They investigated the subject and made a report. The Senator from Maryland has relied upon the opinions of Mr. Madison. I do not desire to read the whole of this report, nor any very considerable portion of it, but I will refer to a passage from it in order to show the reasoning in favor of the proposition that is now made by the Senator from Illinois. They say:
"It is no longer true that the President in dealing out offices will be limited, as supposed in the Federalist, to the inconsiderable number of places which may become vacant by the ordinary casualties of death and resignation. On the contrary, he may now draw for that purpose upon the entire fund of the executive patronage. Construction and legislation have accomplished this change. In the very first year of the Constitution a construction was put upon that instrument which enabled the President to create as many vacancies as he pleased."
Alluding to the construction to which I have referred:
"In the very first year of the Constitution a construction was put upon that instrument which enabled the President to create as many vacancies as he pleased and any moment he thought proper. This was effected by yielding to him the kingly prerogative of dismissing officers without the formality of a trial. The authors of the Federalist had not foreseen this construction. So far from it, they had asserted the contrary; and arguing logically that the dismissing power was pertinent to the appointing power, they had maintained, in No. 77 of.that standard work".
That is a number written by Mr. Hamilton, because it is well known that Mr. Madison's opinions were to the contrary. From the very
dent, or in the President and Senate, or in the Pres-origin of the Government down to the day of ident, Senate, and House of Representatives. Now, there is no clause which expressly vests it in the President. I believe no gentleman contends it is in this House, because that would be that mingling of the executive and legislative powers that gentlemen deprecate. I presume, then, gentlemen will grant that if there such a power, it vests with the President, by and with the advice and consent of the Senate, who are the body that appoints. I think we ought to be cautious how we step in between the President and the Senate, to abridge the power of the one or increase the other. If the power of removal vests where I suppose, we, by this declaration, undertake to transfer it to the President alone."
his death, he held that the President had the power of removal; but I must say, from an examination of the opinions of the leading men of that day, that Mr. Madison was almost alone.
This proposition afterward went to the Senate, and after a discussion in the Senate upon the points involved in it, it was decided by the casting vote of the President of the Senate that the President of the United States should have the power of removal. What was it that was decided? It was decided the law should be so constructed in creating the Executive Departments, presided over by the Secretary of State, the Secretary of the Treasury, and the Minister of War, that the President should at his pleasure remove them. That was all that was determined.
The question arose again, it will be recollected, in 1814, upon the appointment by Mr. Madison of the commissioners to settle the terms of peace with Great Britain. Mr. Madison, it will be remembered, made an appointment of commissioners to go to Europe on the subject of peace and to meet commissioners to be appointed by Great Britain, without any law of Congress whatever. A proposition was offered in the Senate declaring that Mr. Madison had exceeded his powers on that subject, and the question was discussed as to the power of the Presideut to make such appointments
"They had maintained in No. 77 of that standard work that if the consent of the Senate was necessary to appointment, their consent was necessary to dismission from office; but this construction was overruled by the first Congress which was formed under the Constitution; the power of dismission was abandoned to the President alone; and with the acquisition of this prerogative, the power and patronage of the presidential office was increased to an indefinite extent, and the argument of the Federalist against the capacity of the President to corrupt members of Congress founded on the small number of places was totally overthrown. So much for construction. Now for the facts of legislation: without going into an enumeration of the statutes which unnecessarily increase the executive patronage, the four years' appointment law will alone be mentioned; for this single act"* 'places more offices at the command of the President than were known to the Constitution at the time of its adoption, and is of itself amply sufficient to overthrow the whole argument used in the Federalist."
That was not the only time that this subject was considered in Congress. I find that in 1834 this question came up again. Mr. Clay, on the 7th of March, 1884, introduced into the Senate some resolutions in regard to it. I wish to direct the attention of the Senate to those resolutions, and also to the opinion of Mr. Clay, which I think is dispassionate and correct. The first resolution was in these words:
"1. Resolved, That the Constitution of the United States does not vest in the President power to remove at his pleasure officers under the Government of the United States whose offices have been established by law.
2. Resolved, That in all cases of offices created by law, the tenure of holding which is not prescribed
by the Constitution, Congress is authorized by the Constitution to prescribe the tenure, terms, and conditions on which they are to be holden."
Sustaining fully the view taken by my friend from Ohio, [Mr. SHERMAN.] The third resolution was in these words:
"3. Resolved, That the Committee on the Judiciary be instructed to inquire into the expediency of providing by law that in all instances of appointment to office by the President, by and with the advice and consent of the Senate, other than diplomatic appointments"
Of course, leaving the action taken by Mr. Madison, in 1814, to stand as a valid action"the power of removal shall be exercised only in concurrence with the Senate; and when the Senate is not in session, that the President may suspend any such officer, communicating his reasons for the suspension to the Senate at its first succeeding session; and if the Senate concur with him, the officer shall be removed; but if it do not concur with him, the officer shall be restored to office.
4. Resolved, That the Committee on the Post Office and Post Roads be instructed to inquire into the expediency of making provision by law for the appointment, by and with the advice and consent of the Senate, of all deputy postmasters whose annual emoluments exceed a prescribed limit."
That was done afterward. I will now read an extract from the remarks of Mr. Clay on olutions, Mr. Clay said: the subject. Upon the introduction of his res
"The three first resolutions assumed that the Constitution gave no power of removal from office by the President of the United States at his pleasure. He was fully aware that this power was conceded to the President by the first Congress which sat under the Constitution."
Alluding, of course, to the proceedings to which I have referred.
"But since that period, except in an incidental discussion here four or five years ago, it has never been discussed in Congress."
Alluding to the discussion upon the report of Mr. Benton in 1827.
"He had carefully looked into the Constitution, as it related to the power of removal in the President, and the result was that the power was not reposed in the President in the instance indicated in the resolutions. He believed the assertion of the power by the First Congress was improvident, and not the least reason for this opinion was the confidence which that Congress reposed in the wisdom, the prudence, and the patriotism of the first President, the Father of his Country."
Mr. JOHNSON. Mr. Clay had no such confidence in General Jackson.
Mr. HENDERSON. I am aware that the Senator will find some excuse for the opinions of Mr. Clay; but Mr. Clay was not alone at that period of time. Mr. Benton, himself, at the time these resolutions were offered, although he claimed to be the champion of the Administration of General Jackson, did not undertake to answer the report which he himself had made in 1827, which I have just read to the Senate. The Senator from Maryland will of course answer me that Mr. Adams was at that time President; but it was not disputed in 1834 that the report made by the leaders of the Democratic party in 1827 was not the true doctrine. I will refer the Senator to the opinions of Mr. Calhoun, in a speech delivered in February, 1835, which he will find in the second volume of Mr. Calhoun's Works. However much he may say that Mr. Calhoun was opposed to the Administration, and that his constitutional argument may have proceeded from a dislike of General Jackson, and whatever may be the Senator's feelings toward Mr. Johnson, the present President, and his desire to sustain him in this matter, yet I apprehend, when I read a short extract from this constitutional view taken by Mr. Calhoun, he will find it much more difficult to answer Mr. Calhoun's arguments than he does to say something in favor of Mr. Johnson. I call the attention of the Senator from Maryland to this argument of Mr. Calhoun. It is put much better than I could possibly put it. I will read a short extract from it. It seems to me it is perfectly conclusive:
"If the powerto dismiss is possessed by the Executive, he must hold it in one of two modes: either by an express grant of the power in the Constitution, or as a power necessary and proper to execute some power expressly granted by that instrument. All the powers under the Constitution may be classed under one or the other of these heads; there is no intermediate class. The first question then is, has the President the power in question by any express
grant in the Constitution? He who affirms he has, is bound to show it. That instrument is in the hands of every member; the portion containing the delegation of power to the President is saort. It is compriscd in a few sentences. I ask Senators to open the Constitution, to examine it, and to find, if tucy can, any authority of the President to dismiss any public oficer. None such can be found; the Constitution has been carefully examined, and no one pretends to have found such a grant. Well, then, as there is none such, if it exists at all, it must exist as a power necessary and proper to execute some granted power; but if it exists in that cuaracter, it belongs to Congress and not to the Executive. I venture not this assertion hastily: I speak on the authority of the Constitution itsel-an express and unequivocal authority which cannot be denied nor contradicted. licar what tuat sacred iastrument says: Congress shall have power to Lake all laws which shall be necessary and proper for carrying into execution the foregoing powers (those granted to Congress itself.) and all other powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.' Mark the fullness of the expression. Congress shall have power to make all laws, not only to carry into effect the powers expressly delegated to it, but those delegated to the Government, or any Department or officer thereof; comprehending, or course, the power to pass laws .necessary and proper to carry into effect the powers expressly granted to the executive department. It follows that, to whatever express grant of power to the Executive the power of dismissal may be besupposed to attach: whether to that of seeing the laws faithfully executed, or to the still inore comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and neces"sary to carry it into efect, transfers it by tue provisions of the Constitution cited from the Executive to Congress, and places it under its control, to be regulated in the manner which it may judge best."
Again, Mr. Calhoun in this argument says: "Such are the arguments by which I have been forced to conclude, that the power of dismissing is not lodged in the President, but is subject to be controlled and regulated by Congress. I say forced, because I have been compelled to the conclusion in spite of my previous impressions. Relying upon the early decision of the question, and the long acquiescence in that decision"
Referring to the argument in Congress in 1789
"I had concluded, without examination, that it had not been disturbed, because it rested upon principles too clear and strong to admit of doubt. I remained passively under this impression, until it became necessary, during the last session, to examine the question, when I took up the discussion on it in 1789, with the expectation of having my previous impression confirmed. The result was different. I was struck, on reading the debate, with the force of the arguments of those who contended that the power was not vested by the Constitution in the Executive. To me they appeared to be far more statesmanlike than the opposite arguments, and to partake much more of the spirit of the Constitution. After reading this debate, I turned to the Constitution, which I read with care in reference to the subject discussed, when, for the first time, I was struck with the full force of the clause which I have quoted, and which, in my opinion, forever settles the controversy.'
Mr. President, no man can read the debate of 1789, as I have done within the last two or three days, without coming to the same conclusion. Mr. Madison and those who contended with him, it seems to me, were in favor of leaving this power in the hands of the President by their legislation simply because they had entire confidence in the Father of his Country. I have looked at this question of removal, and I find that during the whole eight years of the administration of General Washington, after this debate in Congress, and after the admission that the power rested in the Executive to make removals without cause, there were but nine removals made. I do not say that they were made without cause, but I mean there were but nine removals made by the Executive. Mr. Adams succeeded General Washington, and there were but ten removals during his term of four years. Jefferson was in the presidency for eight years, and he removed but forty-two men. The whole eight years of the administration of Mr. Madison show but three removals. Mr. Madison claimed the power to exist, I admit, as fully as the Senator from Maryland; but how did Mr. Madison exercise that power when he had the control of it himself? In the whole eight years of his administration he saw fit to make but three removals. Mr. Monroe was in the Presidency for eight years, and he made but nine removals. John Quincy Adams, during his four years of administration, made but two removals. Forty years of the Government
show but seventy-five removals, not two a year. But when General Jackson came in, the first year showed some two hundred and thirty, and after that, I believe, some four or five thousand; and from that day to this it has been the continual practice of the Executives to seize upon the offices of this country for the purpose of increasing their power and patronage. When we come to examine the Constitution we clearly come to the conclusion that the President has no power to remove an officer. Why should he have the power? He may nominate, and by and with the advice and consent of the Senate may appoint an officer, but where does he get the power, as was very properly said by Mr. Calhoun, to remove an officer after he has once been placed in office.
I know that a great many inconveniences may be conjured up. I know that in a great many cases it would be very inconvenient indeed to deny the existence of the power. The Senator from Ohio may very properly say that if this proposition should be adopted many inconveniences will arise in some districts in regard to the collection of the revenue. But let us look at it in another point of view. Suppose that the President is a corrupt man, what then? I would that I had time to read from the reports made in 1827 and 1835 upon this subject, wherein they expressed so much distrust, wherein they expressed so much apprehension of danger in the future arising from this extraordinary power in the hands of the President. We must recollect that now there is a change in affairs; that where there was one office then, there are ten now. Look at the vast machinery for the collection of,the internal revenue of the country. Has the President the power when we adjourn, to lay his hands upon every collector and every assessor in this broad land and turn him out? If so, I apprehend that Congress expressing a difference with the Executive will avail nothing. However this Congress may differ from the President in political desires for the future; whatever may be the conflict between us, that conflict will not last long; it will last but a very short time. Can the President, as soon as this Senate shall adjourn, lay his hands upon every officer in this land, upon the consuls and ministers abroad, and upon the assessors and collectors and all the vast machinery for the collection of the internal revenue? Can he seize upon all the post offices in the land? I do not say that he will do so; but I apprehend that if I were the President of the United States, and differed as materially from Congress as he seems to differ from us, and I believed I possessed this power, I would do so. I do not suppose that the President is a better man than I am; I do not say that he is a worse man than I am; I apprehend that we are all actuated by the same feelings and by the same motives. I do the President the credit to suppose that he acts conscientiously in his political opinions; and if he does, why should he not undertake to carry out what he terms "my policy?" If he lays the heavy hand upon all the public offices in this country, what avails it that the people may speak against him, or Congress may speak against him?
Mr. SHERMAN. He would lose more votes by the exercise of a power of that kind, ten thousand times, than he would gain. I do not believe that the power of appointment would affect political opinion in this country one iota. That is my deliberate opinion as to the power of appointment.
Mr. TRUMBULL. The public service might suffer.
Mr. SHERMAN. Yes; but it would not affect the mass of the people in the slightest degree.
Mr. HENDERSON. Suppose it would not alter the opinions of a single individual; I submit to the Senator from Ohio that where men by bending the supple hinges of the knee that thrift may follow fawning, can get that thrift to follow, would not men of the very worst character be apt to get into office? Then, I say, as was said by the Senator from
Illinois, the public service will suffer. I differ with the Senator from Ohio. I say that public patronage, as great as the Executive can have if he can turn out every officeria the land, will tend, and does inevitably tend, to sustain the President in his public policy.
Mr. JOHNSON. It weakens him.
Mr. HENDERSON. If it weakens him, then let the Senate thus strengthen the Presi dent. If that be so, I am in favor of strengthening the President. The Senator insists that by leaving this power in the hands of the President we weaken him. Then I will change my course of policy, and I will attempt to strengthen the President. I will at least say that the Senate of the United States ought to have some con. trol over these offices. I have no prejudice against the President of the United States. I differ with him in policy. After an examination of this question, and I think I have come to the conclusion conscientiously, I believe that the Senate has a right to say when a man is to be removed from a public office. I believe that the Senate is a part of the appointing power, and that it is also a part of the removing power. There is no power in the Executive to remove any man when once in office unless he gets the consent of the Senate thereto.
Mr. Webster was supposed to be almost as good a constitutional lawyer as Mr. Madison. Mr. Webster made a speech in this same discussion in 1835, an extract from which I will read, and to which I call the attention of the Senator from Maryland. He asked me to show it to him. I have it in my hand:
"After considering the question again and again within the last six years I am willing to say that, in my deliberate judgment, the original decision was wrong."
That was the decision of 1789, from which I have read:
"I cannot but think that those who denied the power in 1.89 had the best of the argument: it appears to me, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution, in this respect, by the decision of the First Congress."
It is unnecessary to read from other portions of this speech. It is certainly a very able argument, and one which I think as clearly sustains the position which I assume as the argument of Mr. Calhoun. They were cer tainly both able, as also the report of Mr. Calhoun made in 1835.
The amendment of the Senator from Illinois is in these words:
SEC.. And be it further enacted. That no person exercising or performing or undertaking to exercise or perform the duties of any office which by law is required to be filled by the advice and consent of the Senate, shull, betore confirmation by the Senate, receive any salary or compensation for his services unless such person be commissioned by the President to fill up a vacancy which has happened by death, resignation, or expiration of term during the recess of the Senate and since its last adjournment.
The Senator evidently intends to refuse pay ment to the successors of those men who shall be removed without cause by the President. That is the meaning of it. It can have no other meaning. Now, as I suggested to the Senator this morning-aud in much that the Senator from Ohio said I agree-I think that in arranging a law of this character we ought to cover the whole question, and we ought to provide for a temporary suspension by the President. We ought to provide for the filling up of those offices, notice of vacancies in which will not reach us before the adjournment. Otherwise much inconvenience may arise. A man may die in Oregon, and we may have no notice of the vacancy before our adjournment. The President ought to have the power, in a case of that sort, to fill that vacancy before the next session; and even if we do not agree to give our advice and consent to the nomination, that man having discharged the duties of the office ought to be paid. There are many incon veniences that will arise under this provision. The Senator from Ohio has pointed out some of them. I can conceive of many, but if it is insisted upon, if we must have a vote, I would rather adopt this provision and take those inconveniences than to adopt the inconvenience
to arise after our adjournment, of the removal of every man unless he will become a fawner to the Administration, a supple tool of the Administration, and unless he will promise his support to it. I say that is corrupting.
If it is known in this country that no man, when once in office, can be removed except by impeachment in this body, or by a vote of this body, then there will be a sense of independence and security that will enable each and every man in this broad land to feel that he is not dependent on the one-man power. We shall have better officers in consequence of it. We shall have men who feel that they can discharge their duties free and independent of the of the Executive to remove them withpower out consultation with any other branch of the Government.
Why, Mr. President, this power has become alarming in this country. It is high time that Senators should consider it. I do not allude to it simply because I differ with the President now, for that difference has not carried me, I think, beyond prudence or discretion. I do differ with the President. I would that that difference did not exist. I have not carried that difference beyond this Senate Chamber. I have said nothing against his course of conduct, though I think much may be said against it. If this power is to be left in the hands, not only of the present Executive, but for all time to come, in the hands of other Executives, when there are such a large number of offices to be filled, and such a large number of officers now holding positions under the Government, and it is known that the Executive can control them free of any let or hinderance on the part of any other department of the Government, I say it confers upon him a power that is dangerous to the liberties of this country.
I do not apprehend that anything of the sort would be undertaken, but I see that the newspapers throughout this country now are advis ing the President of the United States to expel this body from their places, to act the Croinwell and drive us out.
Mr. HOWARD. You mean the rebel newspapers.
Mr. HENDERSON. I took up a western paper the other day I will not name the paper -in which the advice was given boldly and freely to the President, and the people were called upon to sustain the President, to march into this body and drive us out. It has been suggested in various other quarters. I think my friend from Kentucky [Mr. DAVIS] Suggested, even upon the floor of this body, that the President might control this Congress if he chose so to do; that he could recognize the southern Senators who are waiting for admission, and call upon the minority of this body to join with them, and then send his communications to the new Senate.
Mr. DAVIS. If the honorable Senator will permit me I will state what I did say, and what I now believe.
Mr. HENDERSON. Certainly. Mr. DAVIS. It is made the duty of the President by the Constitution to communicate to Congress and from time to time recommend for its consideration such measures as he shall deem proper. The position I assumed was. that before the President could exercise that office he would have to ascertain what bodies of men constituted the Congress; that if there were four bodies of men-that was the case which I put-two of them contending they were the Senate and the other two bodies contending they were the House of Representa
ves, the President must necessarily decide which body constituted the House and which body constituted the Senate; that it was a necessity, and that it was his plain, constitutional prerogative and right to determine,. under such a state of things as that, which was the true Senate and which was the true House. I furthermore stated that if the southern members were to get together with a number of the other members of the two Houses, and they in the aggregate constituted a majority
of the two Houses, the President had the constitutional function and right to decide whether they did or not, and if he chose to recognize them as the two Houses of Congress that constituted a regular, legal, and constitutional Congress. That is still my opinion.
Mr. HOWARD. Then the Congress depends on the will of the President.
Mr. DAVIS. I furthermore stated that it was the province of the two Houses of Congress to judge exclusively each for itself as to the elections, qualifications, and returns of its members; that over those questions the President had no jurisdiction or control; but at the same time, if members contending for seats were to get together in such numbers as to constitute a majority of the two Houses, the President had the right to recognize them as the Congress. I say so still. That is my opinion, my belief.
Mr. HOWARD. Will the Senator from Kentucky allow me to ask him a question? Mr. DAVIS. Certainly.
Mr. HOWARD. In what part of the Constitution does he derive this power which he claims for the President of deciding which is the true Congress and which the contrary?
Mr. DAVIS. I have just stated from whence I derive the power. I will read it. Here is the section:
"He shall from time to time give to Congress"
Mr. HENDERSON. I was waiting on the Senator from Kentucky to state his views in regard to this double Congress, and if he is through with that I propose going on.
Mr. HOWARD. If the Senator from Missouri will allow me one moment, it is owing, perhaps, to my fault that the Senator from Kentucky is occupying his time at this moment. I asked him for the warrant which he finds in the Constitution for the President of the United States to recognize the right Congress and reject the wrong Congress. I was very anxious to see the grant of power to the President of the United States to draw such a distinction.
Mr. HENDERSON. Certainly; I ask pardon for interfering.
The PRESIDING OFFICER, (Mr. CLARK in the chair.) Does the Senator yield further? Mr. HENDERSON. Certainly.
Mr. DAVIS. I had lost sight of the Senator from Missouri in replying to the interrogatory of the Senator from Michigan. This was the authority upon which I relied as to the duties of the President:
"He shall, from time to time, give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient."
Now, before the President can recommend to Congress such measures as he may judge necessary and expedient, it results as a matter of necessity that he must ascertain what body of men coustitute the Congress. The case I put was this: suppose a portion of the present Senate were to get together, and they were to receive the Senators claiming to be elected from the southern States, and they should organize as a Senate, and the Republican members of the Senate should make a separate organization, there would then be two orgauized bodies of men, each claiming to be the Senate of the United States. I said the President would have the constitutional power to say which he would recognize as the Senate; and that was the whole of my proposition. I admitted, however, at the same time, that the President would have no power whatever in deciding the question as to the elections, returns, or qualifications of any member of either body; that those questions would have to be decided by each branch of Congress for itself and not by a committee of fifteen.
Mr. ANTHONY. I wish to ask my friend from Kentucky a question, if he will allow me to do so.
Mr. DAVIS. Certainly.
Mr. ANTHONY. I listened, as we all did, with a good deal of attention and surprise to the speech which he is now explaining, and
Mr. DAVIS. It is my fault, but it will be printed in due time.
Mr. ANTHONY. I think that the practice of making speeches and then suppressing them in the Globe, thereby making those who reply to them appear very ridiculous, and their remarks very inconsequential, ought to be stopped in some way or other. I do not understand what right the proprietors of the Congressional Globe, or the reporters of the Congressional Globe, have to omit any speech that has been made. I am told-perhaps I am mistakenthat speeches have been made here in previous sessions which have never been printed and never gone into the Globe at all. I do not know that there is any law or any rule against the practice, but I think there ought to be one. I think the reporters of the Congressional Globe are bound to print what is said here, and to print it within a reasonable time; and I give notice that unless that is done, I shall feel justified in opposing the appropriation for the payment of the Congressional Globe. They agree to publish those speeches; they do not do it; and if it is their fault, then I think they ought not to be paid. If it is not their fault, then I think the reporters ought to be protected in such a way as that they shall have no discretion in the matter. Of course, if a Senator comes and desires to have his remarks suppressed, it is hardly possible for the reporters to refuse, but I think they should be protected from the exercise of any discretion in the
Mr. DOOLITTLE. I desire, as we have got entirely from the question at issue, to move an adjournment; and I make that motion. Mr. HOWARD. I hope not.
Mr. DAVIS. Will the honorable Senator permit me to say a word of explanation upon the suggestions of the Senator from Rhode Island?
I hope we shall not
The PRESIDING OFFICER. It is moved that the Senate do now adjourn; and that motion is not debatable. Mr. ANTHONY. adjourn. The PRESIDING OFFICER put the question, and declared that the noes appeared to have it.
Mr. DOOLITTLE. I ask for a division. Mr. DAVIS. I should like to say a single word. The PRESIDING OFFICER. The Senate is dividing.
Mr. ANTHONY. It is very unfair to adjourn when a Senator desires to make a personal explanation.
Mr. JOHNSON. That is your opinion. Mr. ANTHONY. Yes, sir; that is my opinion.
The Senate refused to adjourn, there being, on a division-ayes six, noes not counted.
Mr. DOOLITTLE. I beg to say to the Senator. from Kentucky that I did not desire to show any discourtesy to him in making the motion to adjourn.
Mr. DAVIS. I am fully aware of that.
Mr. DOOLITTLE. But we are entirely away from the question, and it is now almost five o'clock.
Mr. DAVIS. Mr. President
Mr. HOWARD. Perhaps the Senator from Kentucky will yield to me for half a minute.
Mr. DAVIS. I want to make my personal explanation in reply to the Senator from Rhode
Mr. HOWARD. What I wanted to do, if the Senator from Kentucky will permit me, is to send to the Chair
The PRESIDING OFFICER. Does the Senator from Kentucky yield the floor? Mr. DAVIS. I do not.
The PRESIDING OFFICER. The Senator from Kentucky is entitled to the floor.
Mr. HOWARD. I only wish to send to the Chair a portion of the speech of the Senator from Kentucky as reported by the official reporter in order that the Senator may know exactly what he did say on that occasion.
Mr. CONNESS. I hope that will be read. Mr. DAVIS. I was about to say a word in relation to the practice of publishing speeches some time after they are delivered. I understand that the whole Appendix of the Globe is made up of speeches that are published some considerable time, more or less, after the time of their delivery. I have met with speeches that were published weeks and months after the day of their delivery, in the Appendix to the Globe. It was only in conformity to that practice that I was acting. The report of my speech was sent to me and I answered in reply that at my leisure I would revise it and would have it published in the Appendix to the Globe. That is all I have to say in relation to the practice of other members of the Senate and in relation to what I did as to that particular speech.
Mr. ANTHONY. There have been some speeches-I do not mean to say speeches of the Senator from Kentucky-but there have been speeches delivered here that have never been printed in the Globe at all; that have been suppressed entirely. That is a practice to which I wish to call the attention of the Senate.
Mr. HOWARD. I now send to the Clerk to be read a portion of the speech made by the honorable Senator from Kentucky on the occasion to which he has referred. I wish that it may go into the report of our proceedings.
The PRESIDING OFFICER. It will be read if there be no objection.
Mr. DOOLITTLE. Now that we have got through with the personal explanation, I renew the motion to adjourn.
Several SENATORS. Oh, no; let us have that read.
Mr. DOOLITTLE. Very well; but I give notice that I shall renew the motion after the paper has been read.
The PRESIDING OFFICER. The report will be read, if there be no objection. The Chair hears no objection.
The Secretary read as follows:
"Here, sir, is a provision in the Constitution which requires the President to communicate to the two Houses of Congress information as to the state of the Union, and to recommend to them such measures as he shall deem proper and expedient. What does this require him to do? He has to ascertain who compose the two Houses of Congress. It is his right, it is his constitutional function to ascertain who constitute the two Houses of Congress. The members of the Senate who are in favor of the admission of the southern Senators could get into a conclave with those southern Senators any day, and they would constitute a majority of the Senate. The President of the United States has the constitutional option, it is his function, it is his power, it is his right, and I would advise him to exercise it at any day, to ascertain, where there are different bodies, membe.s of the Senate contending, which is the true Senate. If the southern members and those who are for admitting them to their seats, constitute a majority of the whole Senate, the President has a right-and by the Eternal he ought to exercise that right-forthwith, to-morrow, or any day, to recognize the Opposition here and the southern members of the Senate as a majority of the whole body."
Mr. DAVIS. That is my principle still. I maintain that that is the true principle of the Constitution.
Mr. HOWARD. The honorable Senator from Kentucky says that that is his principle still. I confess I regret very much to hear him make such an announcement. I pronounce that principle to be revolutionary, unconstitutional, and treasonable. I now move that we adjourn.
Mr. DAVIS. I wholly dissent from the position of the honorable Senator. It is neither revolutionary, nor unconstitutional, nor treasonable.
The PRESIDING OFFICER. It is moved that the Senate do now adjourn.
The motion was agreed to; and the Senate adjourned.
HOUSE OF REPRESENTATIVES.
MONDAY, April 30, 1866.
The House met at twelve o'clock m. Prayer by the Chaplain, Rev. C. B. BOYNTON. The Journal of Saturday was read and approved.
The SPEAKER stated as the first business in order the calling of the States and Territories for bills and joint resolutions on leave, to be referred to the appropriate committees and not to be brought back on a motion to reconsider, commencing with the State of Maine.
STATE AND NATIONAL BANKS.
Mr. RICE, of Maine, introduced a bill granting further time and facilities for the conversion of State banks into national banks; which was read a first and second time, and referred to the Committee on Banking and Currency. SKAMANIA COUNTY, WASHINGTON TERRITORY. Mr. RICE, of Maine, also introduced a bill to disapprove of the act of the Legislative Assembly of the Territory of Washington, entitled "An act in relation to Skamania county," approved January 14, 1865; which was read a first and second time, and referred to the Committee on Territories.
HORACE I. HODGES.
Mr. DAWES introduced a bill for the relief of the heirs of Horace I. Hodges; which was read a first and second time, and referred to the Committee of Claims.
Mr. COFFROTH introduced a bill granting a pension to William Jones; which was read a first and second time, and referred to the Committee on Invalid Pensions.
RAILROAD CONNECTIONS WITH WASHINGTON. Mr. GARFIELD introduced a bill to promote the construction of a line of railroads between the city of Washington and the Northwest for national purposes; which was read a first and second time, referred to the select committee on a military and postal railroad from Washington to New York, and ordered to be printed.
BRIDGE ACROSS THE CUYAHOGA.
Mr. SPALDING introduced a joint resolution for the construction of a railroad bridge across the Cuyahoga river over and upon the Government piers at Cleveland, Ohio; which was read a first and second time, and referred to the Committee on Commerce.
Mr. GRIDER introduced a bill for the benefit of William Watkins; which was read a first and second time, and referred to the Committee on Revolutionary Claims.
Mr. NEWELL introduced a bill for the relief of John Munn; which was read a first and second time, and referred to the Committee of Claims.
WAGON ROAD IN MONTANA.
Mr. SMITH introduced a bill to aid in the construction of a wagon road in the Territory of Montana; which was read a first and second time, and referred to the Committee on Territories.
resolution declaring the constitutional relaMr. KUYKENDALL introduced a joint
tions of the State of Tennessee restored to practical relations with the United States; which was read a first and second time, and referred to the Committee on the Judiciary.
JOHN A. WHITALL.
Mr. BEAMAN introduced a bill for the relief of the legal representatives of Major John A. Whitall, late paymaster in the United States Army, on account of loss of stolen vouchers; which was read a first and second time, and referred to the Committee of Claims.
RAILROAD IN IOWA.
Mr. HUBBARD, of Iowa, introduced a bill to amend an act entitled "An act for a grant of lands to the State of Iowa, in alternate sections, to aid in the construction of a railroad in said State," approved May 12, 1864; which was read a first and second time, and referred to the Committee on Public Lands.
REV. F. A. CONWELL.
Mr. WINDOM introduced a bill for the relief of Rev. F. A. Conwell, of Minnesota; which was read a first and second time, and referred to the Committee of Claims.
SIOUX RESERVATION, MINNESOTA. Mr. WNDOM also introduced a joint reso lution for the relief of certain settlers on the Sioux reservation, in the State of Minnesota; which was read a first and second time, and referred to the Committee on Indian Affairs.
Mr. HENDERSON introduced a bill for the relief of Samuel Donnica; which was read a first and seeond time, and referred to the Committee on Invalid Pensions.
KANSAS AND NEOSHO VALLEY RAILROAD.
Mr. CLARKE, of Kansas, introduced a bill granting lands to the State of Kansas to aid in the construction of the Kansas and Neosho Valley railroad and its extension to the Red river; which was read a first and second time, referred to the Committee on Public Lands, and ordered to be printed.
Mr. ANCONA introduced a bill to amend an act entitled "An act to provide internal revenue to support the Government, to pay interest on the public debt, and for other purposes," approved June 30, 1864, and the act amendatory thereof, approved March 3, 1865; which was read a first and second time, and referred to the Committee of Ways and Means.
RAILROAD FROM PITTSBURG TO CLEVELAND.
Mr. GARFIELD introduced a bill to promote the construction of a line of railroad from Pittsburg, Pennsylvania, to Cleveland, Ohio; which was read a first and second time, referred to the select committee on a military and postal railroad, and ordered to be printed.
TRIAL OF JEFFERSON DAVIS.
The SPEAKER. The next business in order is the call of States and Territories for resolu tions, and under this call the first question is upon a resolution of the gentleman from Indiana, [Mr. JULIAN.] On last Monday morning the House refused to second the demand for the previous question, and debate arising, the resolution went over until to-day. The resolution is now debatable under the rules. The resolution was read, as follows:
Resolved, As the deliberate judgment of this House, that the speedy trial of Jefferson Davis, either by a civil or military tribunal, for the crime of treason or the other crimes of which he stands charged, and his prompt execution, if found guilty, are imperatively demanded by the people of the United States in order that treason may be adequately branded by the nation, traitors made infamous, and the repetition of their crimes, as far as possible, be prevented.
Mr. WILSON, of Iowa. I hope that the gentleman from Indiana will consent to have this resolution referred to the Committee on the Judiciary, as the committee now have this subject under consideration.
Mr. JULIAN. I desire an opportunity to discuss briefly the question presented by the resolution. I will agree to make the motion for reference at the conclusion of my remarks. Mr. WILSON, of Iowa. Very well; I yield to the gentleman for that purpose.
Mr. JULIAN. Mr. Speaker, in demanding the punishment of the chief rebel conspirators, I beg not to be misunderstood. I do not ask for vengeance. I feel sure there is no man in the country, however intense his loyalty, who would inflict the slightest unnecessary suffer Iling, or any form of cruelty, upon even the most