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Mr. FESSENDEN. Let us get through with this matter.
The PRESIDENT pro tempore. The ques tion is on the motion of the Senator from Maryland to refer the letter read by him to the Committee on Military Affairs.
I withdraw it.
Mr. LANE, of Indiana. I move to amend that motion.
The PRESIDENT pro tempore. The motion is withdrawn.
Mr. Murdoch on Thursday evening next, for
ORDER OF BUSINESS.
Mr. WADE. I now move to postpone all prior orders and take up Senate bill No. 203. Mr. FESSENDEN. That is not morning business.
REPORTS OF COMMITTEES.
Mr. WILLIAMS, from the Committee on Claims, to whom was referred the petition of George P. Remsberg, praying for an appropri ation to provide for the support and education of his son, Charles Remsberg, who lost an arm on the 13th of April, 1865, by a volley fired by the provost guard in a public street of the city of Frederick, Maryland, submitted an adverse report thereon; which was ordered to be printed.
Mr. VAN WINKLE, from the Committee on Post Offices and Post Roads, to whom was referred the petition of John Gordon, praying for additional compensation for services as messenger in the Post Office Department, submitted a report accompanied by a bill (S. No. 294) for the relief of John Gordon. The bill was read and passed to a second reading, and the report was ordered to be printed.
Mr. FESSENDEN, from the Committee on Finance, to whom was referred a bill (H. R. No. 255) making appropriations for the construction, preservation, and repairs of certain fortifications and other works of defense for the year ending June 30, 1867, reported it with an amendment.
He also, from the same committee, to whom was referred a bill (H. R. No. 511) imposing a duty on live animals, reported it without amendment.
Mr. STEWART, from the Committee on Public Lands, to whom was referred a bill (S. No. 99) granting lands to the State of Oregon to aid in the construction of a military road from Albany, Oregon, to the eastern boundary of said State, reported it without amendment.
Mr. RAMSEY, from the Committee on Post Offices and Post Roads, to whom was referred a bill (S. No. 263) to authorize the Winona and St. Peter's Railroad Company to construct a bridge across the Mississippi river and to establish a post route, reported it with an amendment.
Mr. WILLEY asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 295) repealing the thirty-fourth section of the declaration of rights of the State of Maryland, so far as the same has been recognized or adopted in the District of Columbia; which was read twice by its title, and referred to the Committee on the District of Columbia.
Mr. MORRILL asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 296) to incorporate the American Marine Insurance Company of Washington, District of Columbia; which was read twice by its title, and referred to the Committee on the District of Columbia.
NEW YORK AND MONTANA IRON COMPANY. Mr. WILSON. I now ask for the consideration of the resolution that I introduced some days ago, granting the use of the Chamber to
The PRESIDENT pro tempore. If the morning business is disposed of, the motion of the Senator from Ohio [Mr. WADE] takes precedence, in the opinion of the Chair.
Mr. WADE. Then I insist on my motion to take up Senate bill No. 203 for consideration.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 203) to enable the New York and Montana Iron Mining and Manufacturing Company to purchase a certain amount of the public lands not now in market. The bill was reported to the Senate as amended, and the amendments were curred in. The bill was ordered to be engrossed for a third reading, and was read the third time.
cient wood land; and they cannot get the wood land unless they purchase the title to the land itself. They ask Congress to enable them, in advance of the surveys there, to purchase this land at the Government prices, excluding them from all right to any minerals except iron and coal, or for using the grant for any other purpose except what is necessary to enable them to go on with this enterprise.
I believe every one admits that it will be highly beneficial to the people of that Territory and facilitate its settlement and the development of its mineral interests should this be done. Of that I have no doubt, and it seems to me nobody can have any doubt. Whether this will be profitable to those who invest in it is a thing which they must answer for themselves, but the object is certainly laudable. This bill does nothing more than antici pate, perhaps, by two or three years, the surveys of the land in that Territory. It is so remote that it has not been surveyed, though mining interests have sprung up which have carried a number of inhabitants there who would not have got there, probably, in a century had it not been for the mines discovered there. It is necessary, therefore, that these interests should be developed in advance, and every one who has turned his attention to the subject, so far as I have seen, believes that this bill will be beneficial, and I think nearly every one is in favor of it. The bill is guarded at every point. This company can acquire nothing but the title to this land, and they are to pay for it the same price, probably, that would be paid for it at some future period when it shall be surveyed and when anybody can go on and get it at the same price this company now offer. That is all there is about it. I hope the bill will pass.
The bill was passed.
Mr. GRIMES. I do not rise to discuss the merits of this bill, or to express an opinion as to whether it is wise or unwise for the Senate to pass it, but merely to place myself upon the record as being utterly opposed to the recognition of any such principle as is embraced in the bill. Senators who have read the bill have discovered that it completely overturns the whole land system of the United States. It proposes that a corporation created under the general laws of the State of New York, where a corporation can be created by any three, five, ten, or any other number of persons, for any purpose they please, may go into the Territory of Montana and there select twenty sections of land, make the surveys themselves, without any regard to whether they conform to the meridian lines or the base lines or the township lines of the United States surveys, and shall have a preemption right for two years, at the end of which time they shall be permitted to pay the Government price for the land. I find that there is no provision in the bill, so far as I can see, that will prevent the timber on the land from being utterly destroyed and used up for the purposes of the furnaces which it is proposed to establish there. I do not recognize the propriety of allowing a little corporation in an outside State to go into any of the new States or into any of the Territories and occupy land in the way in which this bill proposes.
PROTECTION OF UNITED STATES OFFICERS.
Mr. CLARK, from the committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate to the bill (H. R. No. 238) to amend an act entitled "An act relating to habeas corpus and regulating judicial proceedings in certain cases," approved March 3, 1863, submitted the following report:
The committee of conference on the disagreeing votes of the two Houses of Congress on the amendments of the Senate to the bill (H. R. No. 238) to amend an act entitled "An act relating to habeas corpus and regulating judicial proceedings in certain cases,' approved March 3, 1863, having met, after full and free conference to and do recommend, to their respective Houses as follows:
That the House of Representatives concur in the first, second, third, fourth, fifth, and seventh amendments of the Senate,
I have only said this in order that I may not
Mr. WADE. I do not wish to take up the
That the House of Representatives concur in the
sixth amendment of the Senate, with an amendment,
as follows: strike out all after the word "act" in the fourth line of said amendment.
DANIEL CLARK, LYMAN TRUMBULL, Managers on the part of the Senate. BURTON C. COOK, SAMUEL MCKEE, Managers on the part of the House.
The report was concurred in.
MESSAGE FROM THE HOUSE.
A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House of Representatives had passed the following bills, in which it requested the concurrence of the Senate :
A bill (H. R. No. 481) to amend an act entitled "An act to encourage immigration," approved July 4, 1864, and an act entitled "An act to regulate the carriage of passengers in steamships and other vessels," approved March 3, 1855, and for other purposes;
A bill (H. R. No. 492) making appropriations for the repair, preservation, and completion of certain public works heretofore commenced under the authority of law, and for other purposes; and
A bill (H. R. No. 545) making appropriations for the uses of the Bureau of Refugees, Freedmen, and Abandoned Lands, for the fiscal
The message further announced that the
Senator from Massachusetts who leads in these matters will pour in upon us here, as the representative of the lecturers of both sexes in the country, requests for the use of the Chamber.
House of Representatives had passed, without amendment, the following joint resolutions:
A joint resolution (S. R. No. 34) expressive of the gratitude of the nation to the officers. soldiers, and seamen of the United States; and A joint resolution (S. R. No. 75) making appropriations for the expenses of collecting the revenue from customs.
The message also announced that the House of Representatives had concurred in the amendment of the Senate to the bill (H. R. No. 197) to provide for the better organization of the pay department of the Navy.
USE OF THE HALL.
Mr. WILSON. I now ask that the resolution be taken up allowing the use of the Hall to Mr. Murdoch.
The motion was agreed to; and the Senate proceeded to consider the following resolution, submitted by Mr. WILSON on the 27th of April: Resolved, That the use of the Senate Chamber be granted to James E. Murdoch, Esq., on Thursday evening, May 3, for the purpose of giving a reading for the benefit of the fair to be held in this city for the National Home for the Orphans of Soldiers and Sailors.
Mr. RIDDLE. When this resolution was offered by the Senator from Massachusetts last week I objected to its reception. The reasons which induced me to object then actuate me now in opposing its adoption. I admit the talent and the ability of this great dramatist, but I am unwilling, by my vote at least, that this Hall, dedicated to legislation, shall be converted into a theater. There are plenty of halls in the city of Washington, and if this gentleman will get a hall for rent I pledge myself to take several tickets and to donate that money for the purpose which he is so anxious to assist, but never with my consent shall this Hall be converted into a theater or for any such purpose. You employ messengers and doorkeepers here, and you pay them a limited salary, and yet A, B, C, and D may come in here and get the privilege of the Hall, and you keep these messengers and doorkeepers here until midnight; you abuse your furniture; you wear out your carpets; and all this for nothing. Let Mr. Murdoch go elsewhere. I hope the Senate will not pass the resolution of the Senator from Massachusetts, and will not grant the use of this Hall to James E. Murdoch or anybody else.
Mr. WILSON. I will simply say that during the war Mr. Murdoch devoted most of his time to the cause of the country and of the soldiers, and gave one of his own sons, who fell in the war. Twice during the war he gave readings in this Hall; and I remember that on both occasions President Lincoln was present, and also Mr. Chase, and many of the most eminent men of the country. The Chamber was crowded by most excellent people; perfect order was preserved; no harm came of it, and I apprehend no harm will come of it now. It is a contribution to the cause of an asylum for the orphan children of soldiers and sailors who fell in the war. I hope we shall grant this privilege. If hereafter it is the intention or the purpose of the Senate to exclude all exhibitions of this kind, or of any other, from the Hall, let us settle the point, but I hope we shall not begin on this occasion.
Mr. CONNESS. I hope we will settle it now. Mr. RIDDLE. I wish to ask the Senator from Massachusetts whether the House of Representatives have not passed a rule prohibiting the use of their Hall to any person except for legislative purposes.
Mr. WILSON. I understand they have done so at this session.
Mr. CONNESS. I move to amend the resolution by striking out all after the word "resolved," and inserting the following:
That the Senate will not grant the use of the Senate Chamber for lectures or readings or other such purposes.
I am willing to contribute to the extent of my means for the purpose, but it is clear to my mind that this Chamber should not be granted for this purpose, and that until a rule on the subject shall be adopted the warm-hearted
Mr. SHERMAN. I know Mr. Murdoch, and I know that he deserves this compliment on the part of the Senate; still I would not grant it to him if it was a mere personal favor; but the cause for which he will read on Thursday next is one that appeals to us so keenly and so warmly that I cannot refuse the request. The ladies of this city, and, indeed, many ladies throughout the country, are very much interested in establishing an orphans' asylum for the children of soldiers and sailors who have been killed in the service. They are now making great efforts in that direction. They are holding their fairs. They are giving public concerts. I attended one the other night that yielded them from six hundred to a thousand dollars, and the performers were all ladies and gentlemen of the city who gave their services gratuitously, and the hall was given gratuitously. It seems to me, the Senate of the United States cannot deny this small privilege when the object is to educate the orphan children of the soldiers and sailors who gave their lives in our service. It is the cheapest mode in which we can aid these beneficiaries, and I am perfectly willing to grant the use of this Chamber for any such purpose. If it was to inure to the benefit of Mr. Murdoch, I would not do it; but I know his generosity, and I know the feeling that has actuated him during the whole war. He gave assistance to the soldiers and sailors. He went into the camp. He read for them and cheered them. Indeed, he devoted four years of active life almost to their service, and gave a son to the cause of the country. No one could appeal to us more strongly than he; but I would not grant the use of this Chamber even to him if it were to inure to his benefit. But in consideration of the cause for which he is to give this reading, I certainly am willing to devote the Hall for such a purpose at any time. I do not think the damage will be very material if the Hall is taken care of.
Mr. POMEROY. I do not think we should put up the bars so that we shall not be able to grant the use of this Hall for any purpose, even if we do not let Mr. Murdoch have it. I think the Senate can consider each case when it is presented; and if they choose to grant the Hall for a particular purpose, I think we had better allow them to do it. I do not believe in passing an amendment to this resolution by which we shall deprive ourselves of the power of granting the use of the Hall to anybody we choose. I take it, the Senate will always have the good sense and judgment to be discreet in the matter, and will grant the use of the Hall to such persons as they may choose.
Mr. HOWE. I shall be very sorry if the Senate shall adopt this amendment; I shall be very sorry if the Senate shall decline to adopt the resolution offered by the Senator from Massachusetts; and upon precisely the grounds suggested by the Senator from Ohio. I have no idea that this Senate Chamber ought to take the place of a concert hall or an assemblyroom; but, on the contrary, I have no idea that this or any other place is so sacred as that you cannot allow, properly, the cause of humanity to be served in it. When you find any such erection in the United States, whether it be the Senate Chamber or a synagogue, I am for taking it down. Mr. Murdoch proposes to read somewhere one evening in the cause of humanity. The Senate Chamber of the United States should be the first, if it is the most convenient hall, whose doors should be opened
to such a call.
Mr. CONNESS. It appears to be evident, at least to my mind, that the bars must not be erected, and that humanity has many advocates here. I am very glad that that is the case. I propose to be humane, as I believe it a duty to be, in another way. But my purpose was merely to develop the judgment of the Senate
The PRESIDENT pro tempore. The reso lution has passed from the desk. It will be returned in a few moments.
Mr. WADE. I suppose it will come in presently. We all know what the resolution is. It is to grant this Hall to this lady to deliver a lecture pertaining to national affairs. It was offered here some time ago and was discussed at some length. She wishes to have the use of the Hall on Monday evening, the 7th instant, and I will state now, while the Clerks are hunting for the resolution, that I shall move to amend it in that particular, changing the time. The day fixed in the resolution originally I believe has passed. I had nothing to do with the introduction of the resolution, but since it has been introduced I have seen the recommendations of this lady, and they are from such respectable sources that I have no doubt of her character and no doubt that it is good and commendable. I understand that she lectured before the Legislature of Ohio, in the Hall of Rep resentatives there, to the great acceptation of the members and the people who were present. I am informed that the papers spoke very highly of her lecture. I know nothing about it in any other way. I move to take up the resolution because it has been pending for a good while, and it appears to me that, under the circumstances, we ought to grant this request, even if we grant no other. It seems to me we shall not be dealing entirely right with this question unless we do so. We all understand the circumstances under which that resolution was reconsidered. Mr. SHERMAN. I will ask my colleague if the proceeds, or the money charged at the door, is to go to the benefit of this lady,
Mr. WADE. I do not know that she charges anything. I have no knowledge on that point. I do not know but that it is a gratuitous lecture.
Mr. WILLIAMS. It is a free lecture. Mr. WADE. Her lectures are said to be very interesting, and she is said to be very able. I am told that it is a gratuitous lecture. I hope that the use of the Hall will be granted under the circumstances; and then if it should please the Senate to pass a resolution that the Hall shall never be used for this purpose again, I have no objection. I think, under the cir cumstances in which this resolution has placed this lady, that in justice to ourselves and to her, we ought to give her the use of the Hall. The Hall has been used before. It was said in the debate on a previous day, that this Hall had never been used for a purpose of this sort before; but that is not so. I am told that Miss Grace Greenwood-I believe that is not her proper name, which I have forgottenhas lectured here in this Hall. I do not remember it, but I have no doubt it is so. I hope we shall grant the privilege under the
Mr. SHERMAN. As there is no hurry
Mr. SHERMAN. If it will not excite discussion-and I do not believe it will, as I know something about it-I have no objection to that resolution being taken up.
Mr. HOWARD. Then I move to take up Senate joint resolution No. 80.
The PRESIDENT pro tempore. The special order can be laid aside by common consent informally. No objection being made, it is laid aside temporarily by common consent, and the question is on the motion of the Senator from Michigan.
Mr. SHERMAN. I doubt whether it is worth while to read that communication. Mr. HOWARD. Very well.
Mr. POMEROY. There is no objection to the resolution at all.
The joint resolution was reported to the Senate without amendment, ordered to be engrossed for a third reading, read the third time, and passed.
The motion was agreed to; and the joint resolution (S. R. No. 80) extending the time for the completion of the Union Pacific railway, eastern division, was read the second time, and considered as in Committee of the Whole. It proposes to extend the time for the completion of the first one hundred miles of railroad and telegraph line by the Leavenworth, Pawnee, and Western Railroad Company, (since called the Union Pacific Railway Company, eastern division,) mentioned in the tenth section of the charter of the Union Pacific Railroad Company, of July 1, 1862, and in the fifth section of the amendment thereof, of July 2, 1864, until the 27th of June, 1866; and the time for completing each succeeding section of one hundred miles is to be reckoned from the 27th of June, 1866.
Mr. HOWARD. I will state, very briefly, that this measure is introduced on the recommendation of the President of the United States, founded upon a communication made to him by the Secretary of the Interior, in which it appears that the company in question have acted in good faith and have proceeded to com plete nearly one hundred miles of the road already, but they will not be able probably to finish it entirely according to the terms of the original charter by the day fixed by the charter. The Committee on the Pacific Railroad had the subject under consideration, and they were unanimous in recommending the passage of this resolution granting further time to the company, until the 27th of June, 1866, and 39TH CONG. 1ST SESS.-No. 145.
HOUSE BILLS REFERRED.
The following bills from the House of Representatives were severally read twice by their titles, and referred as indicated below:
A bill (H. R. No. 481) to amend an act entitled "An act to encourage immigration,' approved July 4, 1864, and an act entitled “An act to regulate the carriage of passengers in steamships and other vessels," approved March 3, 1855, and for other purposes-to the Com
mittee on Commerce.
A bill (H. R. No. 492) making appropriations for the repair, preservation, and completion of certain public works heretofore commenced under the authority of law, and for other purposes-to the Committee on Com
A bill (H. R. No. 545) making appropriations for the uses of the Bureau of Refugees, Freedmen, and Abandoned Lands for the fiscal year commencing January 1, 1866-to the Committee on Finance.
POST OFFICE APPROPRIATION BILL.
The PRESIDENT pro tempore. The special order of the day, being the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending June 30, 1867, and for other purposes, is now before the Senate, the pending question being on the following amendment TRUMBULL:] offered by the Senator from Illinois, [Mr.
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 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.
Mr. TRUMBULL. Before proceeding with that, I desire to change the amendment which I have offered, slightly. I withdraw that amendment and offer the one which I send to the Chair as a substitute. It is the same with the
exception of an addition at the close of it.
The PRESIDING OFFICER, (Mr. POMEROY in the chair.) The Senator from Illinois proposes as a substitute for his amendment
Mr. TRUMBULL. The amendment being under my control, I suppose I can withdraw it and offer this. The PRESIDING OFFICER. The Senator can modify his amendment. The amendment as now modified will be read.
The Secretary read it, as follows:
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 be commissioned by the President to fill up a vacancy which has happened during the recess of the Senate and since its last adjournment, by death, resignation, expiration of term, or removal for acts done or omitted in violation of the duties of his office; the cause, in case of removal, to be reported to the Senate at its next session.
time that I was interrupted by the remarks interjected by the Senator from Kentucky, [Mr. Davis,] I had about closed the examination of the question in a political point of view; that is, I had examined the opinions of our distinguished men of various political par ties since the organization of the Government down to the present time. I was just about to enter upon an examination of the question in a legal point of view, in order to show that the courts of the country have sustained the position which I took yesterday. I do not desire to take up much time of the Senate, and there; fore shall hurry on with what little I have to say on the subject. I think that the view I take, and which I desire to see enforced after this long period of time
Mr. HENDERSON. When the Senate adjourned yesterday evening, I was examining the power of Congress to pass the amendment proposed by the Senator from Illinois. At the
The PRESIDING OFFICER. There is too much noise in the Senate. Senators will resume their seats.
Mr. HENDERSON. I cannot talk when
there is so much confusion.
The PRESIDING OFFICER. Order must be preserved. The Senator from Missouri will proceed.
Mr. HENDERSON. It is very difficult to proceed when I cannot hear myself. I do not propose to occupy much of the time of the Senate, but this is an important question. I am perfectly aware that it is a proposition to change the entire policy of the Government on this subject, and some Senators who act with me politically have already expressed an opinion against the proposed amendment, doubting whether we have the constitutional power to adopt it. I am aware that the power claimed by the Executive to remove all officers in this Government has been exercised from the origin of the Government down to the present time. It is true, however, that during the first forty years of the Government, as I showed yesterday, but few removals were made; and indeed, looking back to that period, I find, as I shall attempt to show in a moment, that Mr. Madison, although he is the authority for this long-continued abuse, as I consider it, of the power of removal, declared at the time of the discussion to which I referred yesterday that if the President undertook to make removals without cause the exercise of that power on his part would be a just cause for impeachment, going to show most clearly that Mr. Madison never contemplated at the time the abuse of the position which he in the first debate on this subject took.
Before I proceed to examine the question legally-and I shall occupy but a short time in that examination-I propose to show the inducements held out to the American people for the adoption of the Constitution. It is a notorious fact that after the Constitution had been adopted by the Convention and placed before the people of the States an objection was urged on the part of many of the people against adopting it on account of the vast power of the Executive. That objection was answered in No. 77 of the Federalist.. These papers were written and spread before the people for the purpose of inducing them to adopt the Constitution of the United States. In the seventyseventh number, written by Mr. Hamilton, it
"The consent of that body [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, could not occasion so violent or so general a revolution in the officers of the Government as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it a new President would be restrained from attempting a change in favor of a person more agrecable to him by the apprehension that a discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the Government.'
Thus it will be seen that one of the inducements held out to the people of the United States to adopt this instrument was that the President would have no power of removal
In regard to inferior officers we can give the appointing power entirely to the President; but if we do not, if we reserve the right to give our advice and consent before the appointment shall be made, then he is clearly of the opinion, as are the courts that have adjudicated upon the subject, that the Senate has a voice in saying whether the officer shall be removed
except in conjunction with the Senate of the United States. As I stated yesterday, this wholesale removal of officers commenced, I believe, with General Jackson. It was continued by the Administration of Mr. Van Buren. Afterward, when General Harrison became President of the United States, it is a notorious fact to all the members of the Senate that the officers of the country were again changed. The officers who had been selected by the Democratic party during the twelve years of the Administrations preceding were turned out and Whigs were put in their places. Again, after Mr. Polk was elected in 1844, a wholesale removal was again carried on. In 1848, when General Taylor was elected, and under Mr. Fillmore's Administration, it is a notorious fact another wholesale removal of officers took place; and it has been continued from that day down to the present time; and I dare say it all proceeds from the idea advanced by Mr. Madison in the debate of 1789. It will be recollected, however, that in that debate Mr. Madison gave his opinion simply on the appointment of the chief executive officers who stand in a confidential relation to the President. It was in a debate on establishing the office of Secretary of Foreign Affairs, our present Secretary of State. There was some good reason for giving the power of removal to the President in cases of that sort. Objections were taken that the President should not have the power to remove even those officers, standing in so near and so confidential a relation to himself; and then Mr. Madison interposed his opinion, and becoming involved in the debate he afterward took the ground that the position was equally applicable to all officers; and therein consists the error, in my judgment, of this whole false theory that has grown up in the administration of the Government.
I have shown, I think, that it has been the opinion of the leading men of all the political parties of this country that this power of removal was one not granted to the President by the Constitution of the United States. It is notorious that Elbridge Gerry was opposed to it, and said that no such understanding ever existed in the Convention. Roger Sherman took the same ground. I will state another fact, while it is now before me, that the Judiciary Committee of the Senate in 1789, composed of nine members, decided against the view of Mr. Madison, and a majority of them voted against the passage of the measure carried by John Adams's casting vote. Of the members of the Judiciary Committee at that day, composed of nine as able men as then lived, five voted against giving this power to the President. The Judiciary Committee of the body that adopted the provision by one vote only decided against the existence of the power to remove on the part of the President.
But I do not rest alone upon the opinions of individuals. I might refer to the very able opinion given by Mr. Hamilton in 1799, years after the decision of Congress so much relied on, in a letter written to a friend of his. After he himself had been in office as the head of one of the Executive Departments of the Government, he gave an opinion from experience that his first views of the Constitution were correct. I refer next to Judge Story, in his work upon the Constitution. He, referring to this original
"That the final decision of the question so made was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision;, and it constitutes, perhaps, the most extraordinary case in the history of the Government of a power, conferred by implication on the Executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of State rights seem to have slumbered over this vast reach of authority, and have left it untouched, as the neutral ground of controversy, in which they desire to reap no harvest, and from which they retired without leaving any protestations of title or contest."Story's Commentaries on the Constitution, vol. 2, sec. 1513.
Judge Story declares it as his opinion that the appointing power has the power of removal.
I know that the Senator from Maryland [Mr. JOHNSON] insisted yesterday that Mr. Madison ought to know, perhaps, better about this subject than anybody else. If Mr. Madison made no mistake on the question of constitutional power, he clearly made a very great blunder in regard to the future policy of this Government on the subject. He made predictions in regard to it which have not been fulfilled. For instance, Mr. Madison on the occasion of that debate said-I refer to Gales & Seaton's Debates, first volume, page 517-in answer to an objection which was urged by Mr. Gerry:
"The danger, then, consists merely in this, that the
President can displace from office a man whose merits require that he should be continued in it. What will be the motive which the President can feel for such abuse of his power and the restraints that operate to prevent it? In the first place, he will be impeachable by the House for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust."
Just think of it, Mr. President. Those gentlemen who laid the foundation of this great abuse of power in subsequent years of the Government took the ground that if the President did thus abuse the power thus put into his hands, he himself ought to be impeached! That was not the view alone of Mr. Madison; but Mr. Vining also, on page 531 of the same volume, remarked that
"If the President removes a valuable officer, which seems to be the great danger the gentleman from South Carolina [Mr. Smith] apprehends, it would be an act of tyranny which the good sense of the nation would never forget.'
Just think of it! Mr. Vining, who supported the power of the President, says it would be an act of tyranny on the part of the President to remove a valuable officer. Thousands and thousands have been removed under different Administrations, and removed without any cause whatever except that they disagreed politically with the power appointing them. If this idea of Mr. Madison and of Mr. Vining
and of others in this debate which laid this unfortunate precedent in the administration of the affairs of this Government had prevailed, various Presidents would have been impeached and turned out of their offices. Mr. Baldwin also in that Congress said "that such an act would be an abuse of power." The mere removal of an officer for opinion's sake and without cause other than opinion's sake would be an abuse of power which, in the language of Mr. Madison, would subject the President himself to impeachment.
I think that, considering the fact that in every opinion that has ever been given by a leading statesman of this country from that day to the present, this debate in the First Congress is alluded to as authority, and considering the additional fact that in every judgment of a court from that day down to the present in which this question came under review, this debate has been alluded to for authority and the only authority on the question, we ought to examine the debate carefully, and if it turns out that the views entertained by distinguished men on the occasion have proven in the administration of the Government to be false and ruinous to the best interests of the Government, Congress ought now to resume the power with which it is clearly invested.
ernment, and supposing that it was utterly impossible that without good reasons the Government should have fallen into this practice, I was disposed at first to agree with him, but examination has led me to an opposite conclusion. The decision to which I now refer is that in the case of Marbury vs. Madison. Of course the question did not arise directly in that case, but a question akin to it did, and in one point of view perhaps the question itself arose; but it was avoided in the decision of the court, because it passed off on the power of the Supreme Court, in the exercise of its original jurisdiction, to issue the writ of manda mus to compel Mr. Madison to give the commission to Mr. Marbury. It seems that on the day before Mr. Adams went out of office, on the 3d of March, 1801, before the inauguration of Mr. Jefferson, he had appointed five justices of the peace in the District of Columbia, under a law which provided that they were to hold their offices for five years. The commissions were made out by Mr. Adams for those parties, signed by him, and sealed by the Secretary of State, but they remained in the office of the Secretary of State. The commissions were not delivered to the parties, and after Mr. Jefferson came into oflice, Mr. Marbury applied for a writ of mandamus to the Supreme Court of the United States, to compel the delivery of the commissions. The writ was to go against Mr. Madison, who was Secretary of State, to compel him to deliver the commissions to the parties to act as justices of the peace for five years. There is a concise statement of the case in the second volume of Story's Commentaries on the Constititution, page 406, section 1546, where it is stated thus:
"This subject was very elaborately discussed in the celebrated case of Marbury vs. Madison. Marbury had been appointed a justice of the peace of the District of Columbia for five years, according to an act of Congress, by President Adams, by and with the consent of the Senate. His commission had been signed by the President, and was sealed and deposited in the Department of State at the time of Mr. Jefferson's accession to the Presidency, and was afterward withheld from him by the direction of the latter. An act of Congress had directed the Secretary of State to keep the seal of the United States, and to make out and record and affix the seal to all civil commissions to officers of the United States, to be appointed by the President, after he should have signed the same. Upon the fullest deliberation, the court were of opinion that, when a commission had been signed by the President, the appointment is final and complete. The officer appointed has then conferred on him legal rights which cannot be re
sumed. Until that the discretion of the President may be exercised by him as to the appointment; but from that moment it is irrevocable. His power over the office is then terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Neither a delivery of the commission, nor an actual acceptance of the office, is indispensable to make the appointment perfect."
Now I will read a few passages from the opinion of the Supreme Court in that case-it was the unanimous opinion of the court, pronounced by Chief Justice Marshall-to show most clearly that no idea ever entered the brain of a single judge that the President himself had the right of removal in cases where the law reserved to the Senate the power of consenting to the nomination before it was com plete. The Senator from Maryland takes the ground-and I admit that he has the authority of the first decision by Congress, in 1789, but he has no other authority, because that decis ion is everywhere alluded to by the judges in their opinions, and they rely upon that alonethat the President has the right to remove an officer. I admit that that was the opinion given by Mr. Madison, but I desire to read from the opinion of the Supreme Court, to which I have called the attention of the Senate, as bearing on that point. The question arose whether
Without detaining the Senate I will allude to the first judicial opinion that I find upon this subject. It is reported in 1 Cranch, and I desire to call to this decision the attention of the Senator from Maryland, who expresses very confident views on this subject, and with whom I was disposed to agree when I commenced the examination of the subject. Rely
under the circumstances I have stated the President had the right to withhold the commission. It was perfectly clear that the appointment had been made and confirmed by the Senate, but Mr. Madison, the Secretary of State, refused to deliver the commission, which was tantamount to a removal of the officer after his
appointment, and it was notorious that Mr.
ing entirely on the long practice of the Gov-Jefferson, the President, had so ordered it to
be done. The Supreme Court say-I read from 1 Cranch, page 156
to be, then, entirely perfect and complete; and the absurdity of the opinion of the court is found in their own reasoning, because they say it is not necessary that the officer shall have the commission in his pocket in order to disWhat do the court mean by an officer not charge the duties of his office; that an appointremovable at the President's will?
ment may be complete without the delivery of the commission; that it is not the same as the delivery of a deed in order to make a grant of land complete, but that a man may properly be in the discharge of the duties of an office before the actual delivery of the commission. But read further from this opinion. On page 166 the court say:
"Some point of time must be taken when the power of the Executive over an officer not removable at his will must cease."
"That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission."
Again, in this opinion the court say-I read from page 162
"It is, therefore, decidedly the opinion of the court that when a commission has been signed by the President the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. "Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the Executive, the appointment is not revocable and cannot be annulled. It has conferred legal rights which cannot be resumed."
They decided afterward in this case that this appointment was complete and perfect of itself, that it vested a right, and that the President could not in the particular case withhold the commission.
Mr. DIXON. Was that the case of a judge? Mr. HENDERSON. No; a justice of the peace in the District of Columbia. They only refused to issue the writ of mandamus, because they decided that in that case under the Constitution, the Supreme Court had not original jurisdiction to issue the writ of mandamus; that it had only an appellate jurisdiction. It is true that the judiciary act of 1789 had attempted to give the Supreme Court the power to issue a writ of mandamus, but the court decided that the law in that respect was unconstitutional, because the Constitution only gave original jurisdiction in certain cases, and to issue a writ of mandamus was not one of those cases; and that view has been taken in some fifteen or twenty decisions between that time and this. But I read further:
"The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it."
I am aware that the court decided in this case-and I think wrongly, if I may be permitted to differ from so able a court-that the President. after the confirmation by the Senate, has the right to withhold the commission, that the appointing power is not complete until the President signs the commission. The court seems to have fallen into this error from the
fact that the two clauses-the one granting the appointing power, and the other providing that the President shall commission all officers thus appointed-occur in different portions of the Constitution, a circumstance which amounts to nothing, in my view of the Constitution. The granting of a commission by the President is a ministerial duty which he is compelled to do when he makes an appointment to the Senate and the Senate confirms it. It is, in my judg ment, the absolute duty of the President under the Constitution of the United States to issue the commission in such a case, though I am aware the court in this case took a contrary view, and said it was necessary that the Presi dent shall have signed the commission and that it shall have been sealed in order to make it complete. Mr. Jefferson, in order to carry out this power of removal, continually resisted the idea that a writ of mandamus could go against any of the executive officers from any judicial tribunal whatever, which laid another foundation for error on this subject, in my judg ment. When the President makes an appointment to an office, and the Senate confirm that appointment, it seems to me that the writ should go against the President to compel him to deliver the commission. The right seems to me
"If by law the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other
It will be observed that the court decided in this case that a justice of the peace in the District of Columbia appointed for five years, an office created by Congress, had a right to his office, after confirmation by the Senate, and a right against the President, and that the President could not defeat his right in consequence of a refusal to deliver the commission. If that be so, by analogy of reasoning why is it that the President of the United States has the
power after the commission has been delivered and before the expiration of the term of office to remove? Is there any such right? Surely this opinion of the court has no meaning in it if such be the correct view.
The question has been adjudicated several times, and I refer next to the opinion of the Supreme Court reported in 13 Peters, page 230. This is a case in which the same question came up, and I think the opinion of the court is perfectly clear. It was an application by Mr. Hennen for a rule upon the judge of the district court of the United States for the eastern district of Louisiana to show cause why a mandamus should not be issued against him requiring him to restore Mr. Hennen to the office of clerk of the district court. It seems that from 1834 to 1837 Judge Harper had been judge of that district court, and having the appointment of the clerk of the court, he had exercised that right and had appointed Mr. Hennen clerk. Afterward Hon. P. K. Lawrence was appointed judge, and immediately upon his appointment he removed Mr. Hennen and appointed Mr. Winthrop clerk. Mr. Hennen resisted the right to remove him, and asked for this rule. The Supreme Court decided, of course, as they had done in the previous case, that they had not authority to issue the writ; that it could not go; and they decided also that the district judge had a perfect right to remove the former clerk and to appoint a new one; but now I wish to read from the opinion of the court to show that in their view the appointing power is the only power that can remove; and if that be true wherever Congress reserves to the Senate the right of giving its advice and consent to a nomination, the officer so appointed cannot be removed without the consent of the Senate. I read from the opinion at page 259 of 13 Peters:
"It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment."
the subject, have the power to remove. Again, on the same page, the court say:
The President cannot appoint in some cases without the concurrence of the Senate. Where ever the concurrence of the Senate is necessary the Senate is a part of the appointing power, and if a part of the appointing power, the court say that the same power that appoints must necessarily, in the absence of any law on
"In all these Departments power is given to the Secretary to appoint all necessary clerks (1 Story, 48;) and although no power to remove is expressly given, yet there can be no doubt that these clerks hold their office at the will and discretion of the head of the Department. It would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow unless the incumbent was removable at the discretion of the head of the Department; the President has certainly no power to remove."
Why? Because he did not appoint; and he did not appoint because the law puts the appointing power elsewhere, and having put it elsewhere, if the officer is to be removed he must be removed by the power that appoints. The court say expressly that the power does not exist in the President to remove a clerk in one of the Departments; and yet it has been claimed on the floor of the Senate, and will be again claimed, that the power exists in the President to remove the head of a Department and to put somebody there who will remove the clerks. I deny that proposition. I say it is defeating entirely the Constitution; it is defeating distinguished founders of our Government, leavthe opinions of all, or a large majority, of the ing out Mr. Madison, and he surely, I admit, was as distinguished as any of them, and I give full weight to his opinions. It will be defeating the construction given by the courts in later days to the appointing power; and in the case from which I was quoting the court continue to say:
I am aware that in the opinion of the court, in this case, they refer to the decision of Congress in 1789, but they clearly give their dissent from the construction then sanctioned by Congress. There is another opinion of the Supreme Court in 19 Howard, to which I will not refer; it is unnecessary to do so, because it establishes the same doctrine to which I have referred in the other two decisions. On this same question Judge Story, at page 400 of the second volume of his Commentaries, section 1538,
"The language of the Constitution is, that the President shall nominate, and by and with the advice and consent of the Senate, appoint,' &c. The power to nominate does not naturally or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the Executive and the Senate. In short, under such circumstances the removal takes place in virtue of the new appointment by mere operation of law. It results, and is not separable, from the appointment itself."
It will be observed that Judge Story takes the ground that if the President can remove at all, it is by virtue only of a new appointment, and inasmuch as that new appointment has to come before the Senate for confirmation, if it is an office of that character which requires the confirmation of the Senate, of course no removal can take place until the Senate has confirmed the new appointment; that is to say,