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It is the same way in the recess of the Senate. Suppose the President thinks proper to remove the postmaster at Cincinnati. How does he do it? By the appointment of another person to that position, and the man in the position at Cincinnati continues to exercise the duties until his successor is commissioned and qualified, and then the papers are turned over to him. In the case of post offices, the Post Office Department-I think there is a law to that effect; I am not very familiar with the statutes on that subject-have a way of sending out a special agent, sometimes without any appointment at all as postmaster, to take charge of the office; but the mode of creating a vacancy by removal is by the appointment of another person to the office. That is the practice. That is one answer that I have to make to the suggestion of the Senator.
In answer to the suggestion which has been made during all this discussion in reference to this measure, that it should not go on an appropriation bill, but that we should have a general bill on this subject, I beg leave to say that no such bill will ever become a law. That is very clear, and everybody, I think, in the Senate must be fully aware of it. There are differences of opinion upon that subject which I am quite satisfied would prevent the enactment of a law. The Senator from Maine is for such a statute made perfect so that he could vote for it; but when it was perfected and made perfect so that the Senator from Maine could vote for it there would be a great many members of the Senate, I apprehend, who would not vote for it in that shape. I have had some conversation with Senators, and I am quite aware, I think, from the conversations I have had, that no general bill limiting and defining the power of removal from office by the President would receive even the sanction of a majority of the Senate, and if it did of a majority I am quite sure it would not of two thirds, and unless it had two thirds there would be very little probability of its ever becoming a law.
The constitutional question is not involved in the payment of an officer. Every one admits-the Senator from Ohio admits-that we may control the money of the Government; that we may appropriate to the payment of officers what we please, and when we please. I believe the practice of the Government is to pay most of its officers quarterly. I am not sure about that, whether all the salaries are paid quarterly or annually. This provision that is proposed would not prevent the salary from being paid annually. It would prevent the salary from being paid for a short time. As the law now stands I think it will be found that salaries are never paid oftener than quarterly. Perhaps I ought not to say never; but I think the general practice of the Government is to pay salaries quarterly. I may be in error, though, in reference to that. I am not sure what the period is, but if it is quarterly they have to wait three months for it, and the longest recess that ever takes place
Mr. FESSENDEN. Some are paid monthly. Mr. TRUMBULL. Are the judges paid monthly?
Mr. SHERMAN. All revenue officers are paid monthly, and postmasters quarterly. Mr. TRUMBULL. How are foreign ministers paid?
Mr. SUMNER. Quarterly. Mr. TRUMBULL. I understand foreign ministers are paid quarterly and postmasters quarterly. I presumed that was the general law, though I had not referred to it recently with a view of ascertaining how that might be. The longest possible period they would have to wait would be nine months. The average period when Congress is not in session is not over six months; and taking the average, it is possible, if an officer was appointed the day after Con gress adjourned, that he might have to wait three quarters for his salary instead of waiting one quarter. That would be no very great hardship upon any one. As the law now stands, he may have to wait a quarter for his salary;
Mr. TRUMBULL. I will modify it in that form by withdrawing the last clause.
Mr. HENDERSON. The Senator will reach it by striking out the clause or removal for acts done," &c.
Mr. CLARK, (to Mr. TRUMBULL.) Move to strike out and insert your original proposition. Mr. TRUMBULL. Yes, sir; I will move to strike out the amendment as it now stands and insert the original proposition as printed: 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, shall before confirmation by the Senate receive any salary or compensation for his services, unless such person becommissioned 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.
Is the pending amendment now under my control? If it is I withdraw it.
The PRESIDENT pro tempore. It is not, having been amended by the Senate.
Mr. SHERMAN. Before the question is put, I wish to show the precise legal meaning of this amendment. The Senator has read it, and I ask him to say whether in case of removal after the adjournment of the Senate, the amendment would not still prevent payment to the officer who takes the place of the person removed. Undoubtedly it does, and therefore it is subject to all the arguments that were urged against it yesterday. The amendment as it now stands only provides that in case of a vacancy caused by death, resignation, or expiration of term during the session of the Senate, the President shall have the power to fill the vacancy; but if the vacancy happens by a removal made during a recess of the Senate, then the person who is appointed to fill the vacancy, under the amendment as it now stands could receive no compensation until the Senate acts upon his nomination. It is therefore subject to all the objections I have named, and indeed more, because the Senator, in order to obviate some of the objections named endeavored to qualify the amendment by providing for certain cases of removal for cause. But take the case of a defaulter who is removed after the adjournment of the Senate, and some one is appointed to fill his vacancy; that is not a vacancy caused by death, resignation, or expiration of term, but it is a vacancy caused by removal for cause. In such a case as that, the incumbent who is legally appointed to a vacancy caused by a removal would not be able to draw his salary. I therefore trust that the Senator from Illinois will adopt the suggestion of the Senator from Missouri, and withdraw this amendment, and let the subject be referred to the committee of which he is chairman, to frame a law on the subject. There is no difficulty in doing so. This amendment is still subject to all the objections that have been made to it.
Mr. TRUMBULL. I have two answers to the Senator from Ohio. The first is, that there is no such thing as a vacancy in the case that he speaks of. A removal is not made and a vacancy occasioned, and then a person appointed; the President does not remove and then appoint, but he appoints to the office, and until the man is commissioned and qualified, the office is not vacant. That is the way where the removal is made by the appointment of a new man. It is not done by removing an officer and leaving the position vacant. Now, where a nomination is sent to the Senate-and it is occurring here every day-A B is nominated for marshal in one of the districts of Ohio in place of C D removed. The Senator from Ohio is aware that C D goes on exercising the duties of that office, and is not out of the office until A B is confirmed and gets his commission and qualifies; and does not turn over the papers of his office until then. The removal is consequent on the confirmation and acceptance of the office by his successor. If we reject the new, the old marshal continues and is not out of office at all. That is an occurrence which happens here daily. That is not a vacancy contemplated by the Constitution.
so that the proposition, in the form in which it is pending, involves no constitutional question whatever. It is certainly competent for Congress, if it thinks proper, to declare that all salaries shall be paid annually or semi-annually. Would the Senator from Ohio think that a very great hardship? I do not suppose there would be any great controversy if a proposition was made in the Senate to pay salaries every six months or every nine months instead of every three months, if it was found more convenient in the transaction of the business of the Gov
That is all that this proposition amounts to, and the object had in view is simply to obtain the advice and consent of the Senate upon these appointments, which is the spirit of the Constitution. The intention of the framers of the Constitution was that officers should be appointed by the President, by and with the advice and consent of the Senate. Whenever that is not done, it is an exceptional case. There are some exceptional cases. What are they? They are cases where vacancies happen during the recess of the Senate. It is not proposed by this amendment to interfere with those exceptional cases. The framers of the Constitution thought they were the only cases it was necessary to except from the general rule which they prescribed for the appointment of officers, which was by the action of the President and the Senate conjointly. That is all there is to this amendment. I have no sort of feeling about it. As I believe I have once before remarked, I was led to take some part in it in consequence of the amendment first proposed by the Senator from Missouri, and in endeavoring to aid in perfecting that amend ment. It is for the Senate to determine.
Mr. SHERMAN. I certainly will not prolong this debate, because nothing new is elicited by it. I will simply refer to the last point stated by the Senator from Illinois, that this does not operate as a great hardship. It does operate as a great hardship. For instance, suppose the Senate should consider the nomination subsequently, when it is before them, and should reject it, then the man is without his pay entirely, and we have the spectacle of a public officer holding an office, performing the duties of that office, and getting no pay. Take the case of a Cabinet minister. Under this provision, if a man is appointed a Cabinet minister during the recess, he cannot get any pay until we meet at the next session, with a prospect over him of being rejected. A poor man could not hold the office, requiring a large expenditure. It is not the mere delay of payment. If it was certain that he would get the pay when the Senate acted, he might possibly borrow the money and pay his expenses; but this amendment provides that no money shall be paid out of the funds appropriated unless he shall be confirmed by the Senate. That certainly is a great hardship, for a man to hold an office the pay of which is contingent on the action of a political body.
Then again the Senator says that the amendment, as it now stands, does not effect anything more than to prevent the President from unconstitutionally filling a vacancy that occurs during the session of the Senate. That cer tainly is not the meaning of it. It provides that if a vacancy is caused by any other reason than death, resignation, or expiration of term, it shall not be filled until the incumbent is confirmed. Take the common case of a removal. Suppose after this session is closed the Presi dent should see fit, for good cause, to remove an officer. He may remove him. That is one act. He may appoint another. That is an
Mr. TRUMBULL. Is that ever done? Mr. SHERMAN. I cannot say that it is ever done, but the act of removal and the act of appointment are separate and distinct things. It is the usual practice to appoint a new incumbent when you make a vacancy; but the vacancy may be made and then the new appointMr. TRUMBULL. That was the very point
them. I am not willing to postpone a remedy
The general bill which it is proposed to
that I made, that the vacancy is not made until the new incumbent is appointed. Is not that the universal practice? And the vacancy does not occur if the new appointment fails to be confirmed.
Mr. SHERMAN. The Constitution provides very clearly that the President shall have power to fill up vacancies that may happen during the recess of the Senate. The vacancy must first happen, but how? This amendment points out three ways by which it may happen-death, resignation, or expiration of term. All of them must be before the appointment. Now, add to that the other cause of vacancy, a removalMr. TRUMBULL. Is that a vacancy? Mr. SHERMAN. Certainly, it is a vacancy caused by removal; so that it seems to me we ought not to deceive ourselves with the language. Indeed the proposition as it now stands is broader than it was before, when we voted upon it yesterday; that is, it does not provide for the case of a removal for cause. I hope we shall come to a vote upon it and vote it down.
Mr. STEWART. I think I understand the point intended to be made by the Senator from Illinois, but I do not think it is well taken. He says that an appointment to fill the place of an officer removed is not an appointment to fill a vacancy, for the reason that the vacancy does not occur until after the appointment has been confirmed, if I understand him correctly. Now, I submit that the President cannot fill the office unless a vacancy occurs at the same time, because if the incumbent remains in the office the appointee cannot fill that office. Then he is appointed for the purpose of filling a vacancy which shall occur, although it may not be in existence at that particular moment, by reason of removal which is to take place. I do not think it matters whether that vacancy exists in præsenti, or whether it is to be created by a subsequent removal; the practical operation is the same, so far as I can see.
Mr. SUMNER. There seems to be an abuse that has grown up recently which all have recognized in the course of this debate, and I believe there is no one who is not willing to apply a remedy; I mean the irregular exercise of the appointing power by the President during the recess of the Senate; and there are at least two different classes of cases in which that irregular application of the appointing power appears. The first class is where offices have been left vacant by the Senate at the time of its adjournment, and yet the President after the adjournment has proceeded to fill them up. It is a mild expression to say that the course of the President under such circumstances is irregular. I insist that it is positively wrong, that it is a departure from his duties, and an infringement of the rights of the Senate as a coördinate branch of the Government. All will agree that that class of cases may be treated under the head of abuse. I insist that it is our duty if possible to apply a remedy. I think all who hear me will agree that it is our duty if possible to apply a remedy, Then there is another class of cases, and that is, where the President, to gratify, perhaps, a party spirit, without adequate cause, without any malfeasance or misfeasance, undertakes to create a vacancy. We feel that that course is at least irregular, and that it is an abuse. Now, I take it we are all disposed to apply
a remedy to these two classes of cases, and the question is how we are to reach them. There are two ways proposed. One is by a bill which shall undertake to regulate the whole subject of removals and secure to the Senate its share in that power; in other words, secure to the Senate the same power over removals which it has over appointments, and it is insisted that that is constitutional. Sir, I am disposed to agree with those who insist that the Senate ought to have a share in the power over removals. When Senators, however, go further and say that in endeavoring to apply a remedy for the abuses to which I have referred, we should wait for the passage of that bill, I must be permitted to say that I cannot join 39TH CONG. 1ST SESS.-No. 154.
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.
And, sir, what is the remedy which may be
The PRESIDENT pro tempore.
The amendment to the amendment was
Mr. SHERMAN. Now, on the amendment itself I ask for the yeas and nays.
The PRESIDENT pro tempore. The yeas and nays have already been ordered.
Mr. COWAN. I ask for the reading of the amendment, as amended.
The Secretary read it, as follows:
SEC. And be it further enacted, That no person exercising or performing, or undertaking to exercise or perform, the duties of any offiee which by law is required to be filled by the advice and consent of the Senate, shall, before confirmation by the Senate, receive any salary or compensation for his services, unless such person be commissioned by the President
Mr. CONNESS. I have not spoken on this. subject since it has been before the Senate, and do not desire now to do more than explain the vote I shall give. I have voted consistently for the amendment offered and as perfected by the Senator from Illinois; but in the shape in which it now is I think it is reasonably obnoxious to the objections made by the Senator from Ohio, that great injury, and really a wrong that we have not a right to perpetrate, may result from its adoption, as against persons appointed who would be entitled to the offices to which they were appointed, and to the salaries belonging to those offices. The amendment would be particularly severe as against such persons legitimately and properly appointed on the Pacific coast. The distance between that country and this makes it already a matter of the greatest possible inconvenience, often very serious hardship, in regard to the payment of salaries due. În the shape in which the amendinent stands, I cannot conceive that there is enough to be gained compared to the objections that are properly, as I think, made to it. I should like to still continue and vote for a proposition which should regulate this question; and whether others support such a proposition or not, when properly prepared and brought before the Senate, as we are now promised that it will be, it shall receive my vote and support.
A person going into an office, recognized as a man of capacity and character, representing the sentiments of the community in which he lives, of those who have come into power, will exercise a certain degree of influence; but the putting in of a man against the sentiments of the men who made this Administration, a man who wears simply the collar of the Executive and violates his faith, will have no other influence than to excite the scorn, contempt, and indignation of the people. I tell Senators, and I tell the President, that the American people are in no condition to be bought or sold by Government patronage, and I believe the use of it for any such purpose will weaken whoever undertakes to use it, whether in the executive branch of the Government or in these Halls. I believe that ninety-nine out of every hundred of the men who put this Administration in power agree in principle and in policy, and I believe that any attempt to use the offices of
this Government to control the elections against them will signally and ignominiously fail.
I am, therefore, in favor of going just as far as we can go in maturing and passing a proper measure to correct abuses, and to protect the men who are filling the public offices against the attempt, whether it come from men in this Chamber or out of it, to remove faithful officers who adhere to their opinions, and appoint such men as the postmaster at Hartford, whom we have confirmed this year, and who has turned his back upon us-a man who was lingering around here last year with $40,000 of money in his pocket to influence and control Congress.
I think we have time enough, as was said by the Senator from Maine this morning, to prepare such a bill and act upon it; and if we fail in that we shall have time enough to take up the measure now proposed or some other measure of a similar character, and put it upon some other appropriation bill. We can do that toward the close of the session; we can do it after we have done what was suggested yesterday by the Senator from Nevada, after we have developed a plan that we approve and that will be conducive to the interests of the country.
For this reason I do not think there is any haste in this matter or any occasion for pressing this amendment now; and I am very much surprised at the earnestness with which it is pressed. I think it of far more importance that whatever measure we agree upon shall receive the careful and deliberate judgment of our friends, and that they shall act together, rather than that we shall press this amendment by a divided vote, with some of the ablest and most trusted members of the Senate opposed to putting it upon this bill.
It is said that if this bill does not become law because of the putting of this amendment upon-it, somebody else will be held responsible for its failure. I do not agree to that doctrine. If we pass a bill and it does not become a law, the country will judge upon its merits as between us and any other branch of the Government. If we put it upon an appropriation bill, and the appropriation bill fails, the people will judge not of the proposition itself, but of the propriety of putting it upon an appropriation bill. That is my judgment on this bill; and so feeling, though it is with a great deal of reluctance that I differ from friends in whom I have the greatest confidence, and whose wishes I always like to comply with if possible, I shall vote against putting this amendment upon the bill now pending.
Mr. TRUMBULL. Mr. President, I am not a little surprised at the character of the speech of the Senator from Massachusetts, [Mr. WILSON.] I will endeavor to notice his objections to this amendment, each of them, but his main one I will notice a little more at length. His first objection, as I understood him, was that the member of the Finance Committee having charge of this bill [Mr. SHERMAN] objected to this amendment, and therefore he was not inclined to put it upon this bill. The Senator from Massachusetts knows that the member of the Finance Committee having charge of an appropriation bill objects to any amendments proposed to be put upon it always. He considers it his duty, having charge of the bill, to object to extraneous matter being put on it; but I think there is no member of the Senate who has oftener put such measures upon such bills than the Senator from Massachusetts himself.
Mr. WILSON. My amendments were always right. [Laughter.]
Mr. TRUMBULL. Of course they were excellent amendments when the Senator from Massachusetts offered them; he never offers any other. [Laughter.] There is no doubt of that. In that respect I am not equally fortunate. I am aware that the chairman of the committee, whether it be the Senator from Maine or the Senator from Ohio who has charge of an appropriation bill, is always averse to amendments, and the moment he sees any member of the Senate rise with a view of offering an
amendment, no matter what it is, he is generally against it. I say generally; I believe it is almost universally true, and I do not know anybody, unless it is the good-natured Senator from Massachusetts, that can ever get an amendment so perfectly right that they will agree to it.
But, sir, the Senator tells us that he is opposed to putting on this measure here by a divided vote among his friends. That is the extraordinary part of the Senator's speech. Sir, I am reminded of the juryman who had been shut up with eleven obstinate men." "Divided friends!" Who divides them? How is this amendment defeated? Has the Senator from Massachusetts looked around the Senate and seen who is voting with him? He prefers to go with his enemies rather than his friends, does he? What chance was there to carry the proposition of the Senator from Vermont [Mr. POLAND] here except by Democratic allies? What chance to reconsider this proposition by your friends?
"Call you that backing your friends," to unite with your enemies to beat them, and then come into the Senate here and boast that you are opposed to dividing your friends? It is a curious way indeed of backing one's friends, to unite with the enemy. Does not the Senator know that three fourths of the "friends" that he acts with are in favor of this measure? And he talks about "dividing" them. He is the twelfth juryman, and the other eleven divide from him, and he is opposed to having any divided jury! Why do not the eleven men come and act with him? The Senator from Massachusetts asks, I think eighteen Senators, all his friends, to go to him and a few others who are voting with the Opposition in this body
Mr. WILSON. Ten others.
Mr. TRUMBULL. Himself and ten others voting with the Opposition in this body. One third vote against two thirds of his friends, and then he complains of a division of his friends, and he divides off and goes with the enemy in a political point of view. Sir, that is the most extraordinary argument that I have ever heard in the Senate, and is only to be illustrated, as I have said, by the eleven obstinate jurors who would not agree with the twelfth man.
He is for a general bill. How many of your allies that are voting down this proposition will vote for a general bill? How do you expect to carry your general bill? Here are eighteen of your friends who are for this measure. Do you expect to carry your general bill without them? How many votes do you get for it? Ten. The Senator tells me ten. He will not find the Senator from Kentucky and the Senator from Delaware voting with him for his general bill. When he brings that in, he will find that he cannot carry it, that his allies will not stand by him.
Sir, I am making these remarks not by way of imputing anything to Senators who differ with me in reference to this measure. They doubtless think it is not best to put it on here; but I am making these remarks in reply to the charge that we are dividing our friends. The Senator from Massachusetts has brought it here and charges upon me and those with whom I act, two thirds of our friends, that we are dividing them, and it is in reply to that that I say the responsibility is on his own head, that he has deserted his friends in this respect when he deserts a majority of them and goes with his enemies; and I tell him that his general bill stands no chance at all to be carried by the forces with whom he is now acting.
Mr. POLAND. We expect you to vote for it. Mr. TRUMBULL. The Senator from Vermont quietly says that he expects me to vote for that. By what right? Why do you expect me to vote with ten of you? Why expect the eleven jurymen to go over to the one man? Mr. POLAND. Because it is right. Mr. TRUMBULL. Because it is right! Well,
that is the same reason that the Senator from Massachusetts gave a moment ago, that when he offered an amendment to an appropriation
bill it was always right. The Senator from Vermont says it is right. The Senator from Vermont on one side of me, and the Senator from Massachusetts on the other, two righteous men, never make a mistake, and they expect everybody to go with them Sir, I think they should have some allowance for their brother Senators and suppose that it is very possible that they may be right, that it is barely possible that a majority of their friends may be right and they may be wrong, that it is barely possible that they ought not to be so very strong in their convictions that they know what is right and exactly how it ought to be done.
Now, sir, I am not disposed to go over the grounds of this measure again. As it now stands before the Senate, it is simply a proposition not to pay men put in office, as I think every Senator on the floor will admit, in violation of the Constitution; for if the Constitution means anything, it means that the Presi dent can only fill up offices in case of vacancies which happened during the recess of the Senate; and if the vacancy has not happened during the recess of the Senate he has no authority under the Constitution to fill it. In reference to the power of removal and appointment to offices, which are one act, the incumbent holding until his successor is appointed and qualified, there no vacancy exists. That was the opinion of Mr. Hamilton. That was not the case of the happening of a vacancy, because, as I said when up before, the vacancy is contingent on the appointment and qualification of the successor, and there is no point of time when the office is vacant; and if the successor fails to qualify after he is appointed, the incumbent holds on except in cases where the officer is suspended and the office is put in charge of a special officer of some of the Departments.
Mr. DOOLITTLE. Will the Senator from Illinois allow me to ask him a question right on that point? I will put this case: suppose that in vacation the collector of customs in the city of New York is found by the President to be actually squandering the public moneys, can the President remove him from the office?
Mr. TRUMBULL. That is a question not involved in this matter at all. This has nothing to do with it. The proposition before the Senate has nothing to do with such a case. It is contended that the power has been exercised by the President as a general thing, in vacation, of removing a man and putting another in his place.
Mr. DOOLITTLE. The question is whether the President cannot remove a man and create a vacancy. Suppose he finds a collector of customs stealing the money, can he not put him out of office? Must he allow him to stay in office until some other man is appointed and confirmed by the Senate to take his place?
Mr. TRUMBULL, I am not aware of his ever dismissing a man under such circum
Mr. DOOLITTLE. I should like the Senator to answer the question whether he believes the President has power to do that or not.
Mr. TRUMBULL. The Senator wishes to ask me a question not involved in this matter at all. I am not on the question of removals; I have not argued to any extent the question
of removals from office.
Mr. DOOLITTLE. I understood the Senator from Illinois to say that it was impossible that there could be a vacancy created by the President in making a removal; that when a man was in office, the only way to put him out was to push him out by pushing another man into the office. That I understood to be his argument.
Mr. TRUMBULL. My understanding is
that the President never did remove a man except by pushing another in his place. There are cases where he has put a special officer in charge of an office for the time being. There are grades in all these offices; the Postmaster General has special agents authorized by law to travel all over the United States and author
me if I do not admit that when a man dies there is a vacancy, [laughter,] and then wants to ask some other question, why, sir, it is trifling.
Mr. DOOLITTLE rose.
Mr. TRUMBULL. I shall be through in a moment. I will not yield any further. I decline to yield any further to that class of questions. [Laughter.]
I have said, sir, I believe, all that I designed to say in rising, which was chiefly to reply to the extraordinary speech of the Senator from Massachusetts, who charged upon those of us supporting this measure an attempt to divide the party; and having replied to that I am willing to yield the floor to him or the Senator from Wisconsin or anybody else that wants it.
Mr. WILSON. Mr. President, I followed the Senator from Illinois and voted for his measure. I saw, on looking around the Senate, that some of our ablest and most trusted Senators felt it to be their duty to vote against it. I did not then believe, I do not now believe, that any principle is involved in putting upon this bill this measure. I thought the Congress of the United States would be in session for sixty or seventy days to come; that we should have abundant time to mature carefully and act upon a proper measure, one not sprung upon us here in the Senate as an amendment to another measure, one not dragged in here by a few of our friends, without consultation with others, but a measure brought into the Senate by a committee, carefully framed and taken up and examined, and deliberately acted upon.
It is well known that this question of executive power has been discussed in Congress on several occasious by the most eminent men of our country. The power of the President to remove was carried in the Senate, originally, by the casting vote of Vice President Adams: and a majority of the men in the Senate at that time, who had been members of the Convention that framed the Constitution, voted against this power of the President. This same question of executive power came up on other occasions, especially in the debate on Foot's resolution, when it was discussed with great ability by Robbins, of Rhode Island, Clayton, of Delaware, Barton, of Missouri, and other Senators, in perhaps the ablest debate the Senate of the United States ever knew. In 1835, on Mr. Calhoun's report on executive power and influence, the question was again elaborately debated. It is a question on which the most eminent minds of the country have divided. Mr. Hamilton said that
ized under certain circumstances to take possession of the mails and take possession of a post office. That is done sometimes; but if the President ever dismissed an officer except in pursuance of a law that was passed authorizing it to be done, as is the case in some instances in the military service-if he ever undertook to dismiss an officer and to leave the office vacant without designating somebody temporarily, ad inferim, to take charge of it, I am not aware of it. It has happened here with Cabinet ministers that sometimes a person has been designated to perform the duties ad interim of a Cabinet minister; but I have yet to learn of an instance where an officer has been removed and nobody put in charge. It seems to me such a case never would occur; or if it did occur it would be, as is suggested to me, safe to submit the matter to the consideration of the Senate whether we would not give compensation.
Mr. STEWART. I should like to ask the Senator a question. I do not know whether I understand him correctly. Does he contend that appointing a person to an office without in form removing the incumbent, that adopting the usual course of putting one out and putting the other in, is not appointing a man to fill a vacancy?
Mr. TRUMBULL. I understand the Senator's question, and I say it is not appointing a man to fill a vacancy; there is no vacancy in that case. It has occurred here within two weeks, it is a matter now of public notoriety, that there was a person nominated to the Senate as collector of internal revenue in the district of St. Louis in place of another man removed. That is the way the communication to the Senate reads. The Senate rejected the nominee. Now, is not the previous incumbent there? Has he been removed? If we had confirmed the nominee, would it have been a confirmation to the vacancy? It would have been a confirmation to take the place of the man removed, and there never would be an instant of time when there would have been a vacancy.
Mr. STEWART. But must there not be a vacancy necessarily before he can enter upon the office? Does the Senator contend that both can be in office at the same time, and that there is not necessarily a vacancy happening at some time, and that the appointment is not for the purpose of putting a man in that vacancy whenever it does occur? No matter how short a time there is, one must go out and the other come in. They cannot both be in the office at the same time.
Mr. TRUMBULL. I suppose the Senator from Nevada wants to demonstrate the mathematical proposition that two bodies cannot be in the same place at the same time. I suppose it is possible for the Senator from Nevada to go out of his seat and somebody else to come into it, and that there never is an instant of time when the office is vacant, no more than there is a time when the office of the President of the United States is vacant. It is not a vacancy. That is not the vacancy contemplated by the Constitution of the United States.
Mr. DOOLITTLE. I will ask the Senator one question.
Mr. TRUMBULL. I am willing to be catechised.
Mr. DOOLITTLE. In vacation cannot an officer resign his office and his resignation be accepted, and will there not then be a vacancy? Mr. TRUMBULL. Have I not been arguing for an hour that that was the very vacancy which the Constitution authorized to be filled, that that was a vacancy, and that such cases were the only cases of vacancy, and that a removal is not the vacancy contemplated by the Constitution. When the Senator from Wisconsin, after I have repeated over the words of the Constitution, and argued to show as well as I could that the vacancy which the President was authorized to fill up by a commission was a vacancy occasioned by a resignation, death, or otherwise, as is provided here in the amend ment, rises, and with a look of wisdom asks
Sir, I did not call the Senator from Illinois to account and charge him with dividing our friends; I made no charges whatever. I uttered a few modest words in explanation of my own action, and the Senator assumes that I charged him with an attempt to divide our friends in the Senate. I expressed my regret to see this amendment pressed upon us when some of the most eminent men of the Senate were opposed to putting it upon this bill, and expressed their readiness to vote for a bill carefully and properly prepared and brought in as an independent measure. Until we have tried that, why press this? If we adopt this as an amendment to the present bill by a bare majority, what will be its influence in the other House? I will say nothing about its influence in the executive depart
ment of the Government, for I do not think it is proper here to consider that question. What will be its influence among the people of the country? The Senator from Vermont [Mr. POLAND] told us yesterday that the people were not anxious about executive power and patronage over them; they were more fearful of its influence over us; and I believe that he uttered a great truth when he made that declaration. The Senator from Illinois chides me for acting with gentlemen on the other side of the Chamber. Well, sir, it so happened, not long ago, that that Senator was found acting with gentlemen on the other side of the Chamber, and for one I did not reproach him with so acting.
Mr. TRUMBULL. But I did not accuse anybody of desiring to divide our friends.
Mr. WILSON. I have not accused the Senator of a desire to divide the party. I merely referred to the fact that there was a division of opinion in regard to the propriety of putting this amendment on this bill-not a division in regard to the amendment itself, but as to the policy of putting it upon this bill. That is a matter of policy and not of principle. Others of our friends divided upon the resolution which, it will be remembered, was passed by the House of Representatives early in the ses sion, proposing to amend the Constitution in regard to the basis of representation. I then regarded and every day of my life since I have regarded that division, resulting in the defeat of the resolution, as a deplorable calamity. Nineteen Union State Legislatures were then in session, and if it had been adopted they would at once have ratified it; and then, according to the theory held by eminent Senators and Representatives, it would to-day be a part of the Constitution of the country. But now, whatever amendment we pass, other Legislatures must be elected to act upon it; and the peril of carrying all these elections everybody can see.
Sir, it seems to me that the Senator from Illinois has no right to rise here and reproach any of us who doubt the expediency of attaching this measure to this bill, and he has no right to charge us with dividing the party because a portion of us feel it to be our duty to object to that course. I will vote for a measure to correct this abuse as an independent measure; and if toward the close of the session such a measure shall fail, not through any fault of the Senate or of the House of Representatives, I will vote with the Senator from Illinois to place it upon any other bill upon which it can be placed, and let it take its chances and share its fate. But at this time I do not fear that anything is lost by keeping this amendment off this bill. The discussion will do good; it has called our attention to the subject; and I believe in the light of this debate a measure may be framed which shall bring together those of us who stood together in passing the most popular measure that was ever enacted by the Congress of the United States and one that has the deepest hold upon the heart and conscience of the country-the civil rights bill. I believe that we can pass such a measure in such a shape that it will receive, as it ought to receive, the confidence and support of the whole country. But, sir, I do not complain of the active Senator from Illinois; I know his pertinacity and his determination, and how he always clings to any proposition that he makes. I sometimes think it would be a great deal easier for him to carry through important measures by a little more of the spirit of deference to others and of conciliation.
Mr. DOOLITTLE. Mr. President, the word "vacancy" I shall not discuss at length. I will state only two or three cases where, in my judgment, vacancies happen. If the officer dies there is of course a vacancy. If he should remove out of the country there would be a vacancy in the office. The Senator from Illinois would not doubt that. If he should resign there would be a vacancy, provided the resig nation were accepted. The vacancy by resig nation does not happen till the President or
the head of a Department acting under him accepts the resignation; and the question I put to the Senator from Illinois about resignation requires an act of the President or the head of a Department under him to make the vacancy. The President takes part in making the vacancy; the man cannot make it alone by mere resignation.
Mr. TRUMBULL. Does the Senator mean to say that a judge of the Supreme Court of the United States cannot resign without the
from time to time that to the returned and disabled soldiers who have served in the war for the Union, other things being equal, the public offices should be given. The Senator from Massachusetts has advocated that. Our State Legislatures have resolved to do the same thing. Our own party Union conventions throughout the country resolved to do it. Occasionally perhaps the President may have removed an incumbent for the purpose of placing, in accordance with the spirit of the times and the demands both of the resolutions of Congress and of the various Legislatures, a soldier of this description in his place. There may be other cases, and they are exceedingly rare-Senators can point out but very few-where persons have been removed not for opinion's sake, but sometimes for that personal invective and abuse upon the Administration which no Administration can tolerate with any respect for itself. I can assure the honorable Senator from Massachusetts that from all that I have seen, my judgment has come to the conclusion that there never has been a more tolerant chief executive magistrate within my recollection than the one who is now occupying the presidential chair.
consent of the President?
Mr. DOOLITTLE. A judge of the Supreme Court of the United States is not an officer under the President.
Mr. TRUMBULL. Nor is any officer an officer under the President; he is an officer of the Government,
Mr. DOOLITTLE. Executive officers are under the President, and responsible to the President in the execution of the law. The President is responsible for the execution of the laws and responsible that every executive officer under him shall execute the laws. He is sworn to see that they do execute the laws; he is the chief of the executive power, upon whom the responsibility, by the Constitution, is placed, and therefore these officers are responsible to him.
But, Mr. President, the Senator from Illinois, with all his ingenuity to get around the question, did not answer the question I put to him. Suppose that the collector of customs in the city of New York, immediately after the adjournment of Congress, or at any time during the vacation, is found to be embezzling the public money, is it true, as the Senator maintains, that the President cannot create a vacancy, but that he is still in office and must remain in office until his successor is appointed and confirmed by the Senate? The proposition is monstrous. Put another case. Suppose he should become insane; suppose that the insanity of the late collector of the city of New York, our esteemed friend, who, in a fit of insanity, threw himself into the Hudson river, had shown itself during the vacation, would it not be possible that the President of the United States should remove him from the office and make a vacancy? The Senator contends that the President cannot make a vacancy in an office as long as the man is living and does not resign or leave the country, without thrusting another man in to push him out of office. That is a great fallacy.
The truth is, the power exists, and the Supreme Court have so decided, and such has been the practice of the Government for seventy years; and I think that all who have preceded us, although there was some difference of opinion at the time, are entitled to some consideration, and the practice of the Government for sixty or seventy years is entitled to some consideration. The practice has been, that while the President could make a removal, he could not fill an office without the consent of the Senate, except in the vacation; he could not do it while the Senate was in session, so that the officer would not be entitled to take possession of the office or commence acting; but during the vacation, and until the Senate does meet, he has that power.
I do not mean to go into any argument of this matter at length; I will simply state another fact. My friend from Massachusetts, it seems to me, and some other gentlemen appear to assume that there is a great abuse of executive patronage. What do they mean? Do they refer to an abuse of executive power by the present Executive? There is no just ground for any such complaint. I say to the Senator from Massachusetts, and he knows it well-it is a matter spoken of in the papers-that it is understood that even in his own Cabinet the President tolerates differences of opinion; that men are in the Cabinet, one or more, who sympathize with the Senator from Massachusetts in his peculiar views on reconstruction, and the President does not even remove a member of his Cabinet for opinion's sake.
It is true Congress has passed resolutions
Mr. HOWE. Will my colleague allow me to call his attention to a paragraph in the papers? Mr. DOOLITTLE. I do not read the newspapers much, and I pay very little attention to what the newspapers say. Latterly, sir, and for the last five or six months in relation to the course which has been pursued by me, I have been the subject of so much misrepresentation and abuse that I cease to have very much respect for the newspapers in these times.
Mr. HOWE. I supposed this was a clause which my colleague had overlooked; it has not reference to his own course at all, but to the point which he is just now discussing. I would like to call his attention to it.
Mr. DOOLITTLE. I shall be through in a few moments, and if my colleague wishes then to read from newspapers, I shall not object. Mr. HOWE. I shall not insist.
the President for the last four months to strike down the men who elected him and to reward men who would desert the principles, the ideas, the policy, and the measures of those who pul this Administration in power. Faithful, true, tried, and honest men have been removed from office to make way for men who had no claims upon office and who have simply shouted hosannas to the President for the purpose of obtaining patronage and power. Was not a soldier removed in Philadelphia and a man who had not the public confidence of our friends there appointed in his place?
Mr. FESSENDEN. His name.
Mr. DOOLITTLE. I was simply saying, Mr. President, that I believe the Senator from Massachusetts is taking counsel of his fears, and not of his judgment; and I believe another thing, that this unexampled proposition, never heard of before in the seventy-seven years of the existence of the Government, is not such a proposition as the Senate ought to entertain.
Mr. WILSON. The Senator from Wisconsin asks me if I referred to the present Executive in what I said of executive removals and abuses. I answer frankly that I did.
Sir, I wish simply to say this: during the last summer and autumn we were assured that the President was making an experiment in organizing the rebellious States; we were told that if it did not succeed, the remedy was in the hands of Congress. We were told, also, that differences of opinion among friends in regard to these modes of reconstruction were to be freely tolerated. The President went on in the course he had marked out for himself. The rebel States were reorganized; and every one of those States reorganized since the 4th of March, 1865, is to-day as completely in the hands of the rebels as it was the day Jeff. Davis was captured. Nearly every one of these States has elected rebels to Congress, three loyal men in Virginia to the House, none from North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana, one in Mississippi; none yet elected in Texas, where the election is yet to come; Hamilton is fighting for principle and for the cause, but he is to be overborne by the influence and power of traitors. I fear he receives no aid from this Administration.
This was the condition of the country when Congress met. Congress, as in duty bound, cast about to see what was to be done, to see that these States should come in here, as I have once before said, loyal end foremost, and not rebel end foremost. The advocates of bringing these States into the Government of the country, rebel end foremost, through the public press and in other ways, have been calling on
Mr. WILSON. Sloanaker. Are there not other cases? Here is a man appointed marshal in western Pennsylvania who was tried by court-martial, convicted, and dismissed the service, and I am told he would have gone to prison if it had not been for the influence of friends.
Mr. COWAN. Who were the "friends?" Mr. WILSON. I know that there are men in this Capitol to-day who for the last three or four months have been urging and pressing the Executive to use the corrupt and corrupting influences of public patronage for the purpose of building up and constructing an independ ent party-a party that has died before it was born; and I know that there are men in this city-I mean the Blairs-who have been on voyages of discovery, hunting up and picking out a public man here and there, and offering them the kingdoms of this world if they would betray us.
I know that these things are so, and I know that a committee of this new party was got up, five of the members of which, I believe, have already declined because they do not belong to the concern and were captured without their consent. Its object was to organize a party to be built up by public patronage. Sir, you remember Scovel, of New Jersey; some of us remember him, how he came down here and blustered about, and declared that he was going to elect a Senator from New Jersey against the President's policy. Now, what would you think of a letter written by a public officer to another public officer in New Jersey saying, "The Secretary of the Treasury directs me by the order of the President to say to you that you must remove a certain man in your em ployment, and in filling his place consult Mr. Scovel?" It is well known and understood that Mr. Scovel struts over New Jersey claiming to control the public patronage in that State, and we have nominations before the Senate now of his dictation.
When a public officer dies or resigns, or his term of office expires, and the President of the United States in casting about among the men who elected him selects to fill that place a man he thinks agrees more nearly with him than with Congress, I make no complaint. I object to his raising this issue among ourselves, and I object to our raising it, and I do not raise it upon him. But when a competent, faithful, and honest public officer is discharged for no other reason than that he believes in the principles, the policy, the aims, and the purposes of the party of Union and liberty, the party that saved this country and made it a free country, when such a man is struck down to reward another man for mere partisan purposes or to get up a little rebellion against this great organization that to-day holds twenty-three of the twenty-five loyal States, I for one object to it. I object to it as an attempt to use the vast patronage and power of the Government of the United States for the purpose of corrupting a pure and true people, a people that have given nearly three million soldiers and $3,000,000,000 to their country to carry it through the late rebellion.
I will say to-day what I believe to be true, and in saying it I make no assault upon the President of the United States. I say that I believe the policy the President has felt it his duty to pursue, which he has pursued, and which he seems to insist on pursuing, without consulting the views of Congress, this uncer