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of Columbia, to the State of Virginia," and that the papers accompanying the resolution orable Senator from Maine is not likely to be for other purposes; which was read twice by be also referred to the Committee on Com- here until Thursday: its title, referred to the Committee on the Dis
That order will be made, if there be Mr. CHANDLER. Well, I will say Thurstrict of Columbia, and ordered to be printed. no objection.
day. Mr. WILLEY asked, and by unanimous
MESSAGE FROM THE HOUSE.
Mr. JOHNSON. Say Friday. consent obtained, leave to introduce a bill (S.
Mr. CHANDLER. I am told he will be here No. 281) to authorize the Chesapeake Bay and
A message from the House of Representa
on Wednesday, and therefore I will move to Potomac River Tide Water Canal Company to tives, by Mr. LLOYD, Chief Clerk, announced
make it the special order for Thursday. My enter the District of Columbia ; which was read that the House of Representatives had passed
first motion is that the bill be taken up. twice by its title, and referred to the Committhe bill (S. No. 146) for the relief of Thomas
The motion was agreed to. tee on the District of Columbia.
F. Wilson, late United States consul at Bahia,
Mr. CHANDLER. I now inove that the
bill be postponed until Thursday next at one
ENROLLED BILLS SIGNED. Mr. CONNESS. I offer the following res
o'clock and made the special order for that olution, and ask for its present consideration: Speaker of the House of Representatives had
The message further announced that the
Mr. CLARK. I appeal to the Senator from directed to inquire into the necessity of prohibiting signed the following enrolled bills and joint | Michigan to let it go over a day or two beyond the importation of nitro-glycerinc, its transportation resolution ; which were thereupon signed by that time. I know that the Senator from Maine on American vessels, or by land within the United the President pro tempore : States, and its manufacture in the United States ; and that the committee report by bill or otherwise. A bill (S. No. 89) to issue American regissa pected to be back before this time, but he
has been unexpectedly delayed and may be There being no objection, the Senate pro
ters to the steam vessels Michigan, Despatch, delayed until Thursday or Friday.
and William K. Muir, and for other purposes ; meded to consider the resolution.
Mr. CHANDLER. If he is not present, I Mr. CONNESS. I have received this morn
A bill (S. No. 150) for the relief of Theo- shall consent to a further postponement. ing by the telegraph, from the Chamber of dor G. Eiswald ; and
Mr. CLARK. That will be satisfactory. Commerce of San Francisco, the result of a
A joint resolution (S. R. No. 29) for the Mr. CHANDLER. Let it be made the spespecial meeting called by that body in relation
transfer of funds appropriated for the payment cialorder for Thursday with that understanding.
of salaries in the Post Office Department to to this subject, which I ask to have read at the
The motion was agreed to. desk. It is addressed to Congress. the general salary account of that Department.
POST OFFICE APPROPRIATION BILL. The Secretary read, as follows:
Mr. SHERMAN. I move that we proceed "At a special meeting of San Francisco Chamber Mr. CHANDLER. I move to take up House to the consideration of the Post Office approof Commerce, the following action was taken: "Whereas several fatal accidents have lately taken
bill No. 11, to facilitate commercial, postal, priation bill, with a view to dispose of the place from the terrible explosive properties of nitro- and military communication among the several pending amendment to it. glycerine, a substance whose full powers seem yet im- States.
Mr. HOWE. I suggest to the Senator from perectly understood, even by experienced chemists, wherehy great loss of life and property have resulted :
Mr. JOHNSON. The Senator from Maine Ohio that he let that go over until one o'clock, Therefore, desiring to prevent further calamity, who is not in his seat, [Mr. MORRILL,) and has and let us go on with a few private bills in the
De il resolved, That the president of this chamber been absent on business three or four days, is bo instructed to telegraph Congress requesting immc
mean time. diate legislation for the protection of life and prop
very desirous of being heard on that bill. He The motion of Mr. SHERMAN was agreed to; erty from dangers connected with nitro-glycerine. is a member of the committee before whom the and the Senate resumed the consideration of
Resolved. That this chamber recommend the im- bill has been pending. I submit, therefore, to the bill (H. R. No. 290) making appropriamedinte passage of a law, under a suspension of the rules, constituting the shipment or transportation of
the Senator from Michigan whether he had bet- tions for the service of the Post Office Depart. nitro-glycerine by any public conveyance within the ter not let it lie upon the table until his return. ment during the fiscal year ending June 30, United States or by any vessel of the United States a I understand he will be here to-morrow or next 1867, and for other purposes. felony."
day. A delay of a few days can make but very Mr. SHERMAN. The Senator from WisMr. CONNESS. I also hold in my hand a
little difference, I suppose, in the result of the consin appeals to me to allow this bill to go letter from a prominent gentleman of the city measure one way or the other. I know that
over until one o'clock. I am willing to conof New Yorki, a small portion only of which I
the Senator from Mone is very desirous of lay- sent to have it laid aside informally until that will read in this connection, showing the im
time, as I understand there is no special order portance of as immediate action as can be taken ing before the Senate the views which he wishes to present on the subject.
for one o'clock to-day, but I desire to have on the subject, and I desire to call the atten- Nr. CHANDLER. I should like to go on this bill disposed of to-day. tion of the honorable chairman of the Commit
with the discussion of this bill; I do not know Mr. HOWE. I should like to have the bill tee on Commerce to it, that he may, at the that we shall arrive at a vote to-day. I am earliest moment of time, report upon it. This
laid aside inforınally with a view to proceed to aware that the Senator from Maine proposes to gentleman says:
the consideration of House bill No. 472. discuss the bill; but I desire to arrive at a vote Mr. SHERMAN. I have no objection, as I “The fearful explosion and loss of life in San Francisco, of which w'r have received but brief accounts
as soon as possible. It has now been before said before, to letting the appropriation bill per telegraph, his been preceded by one still more
the Senate for three successive sessions, and lie over informally until one o'clock. dreadful at Aspinwall, of which your morning papers most of those who desire to speak on it have The PRESIDENT pro tempore. The bill willgive you the periculars, both caused by the same spoken; but I understand some, among others will be laid aside by coinmon consent until one powerful and dangerous explosive inaterial, na melv, 'blasting oil,' or nitro-glycerinc. These two feariul the Senator from Maryland, desire to make o'clock. calamities, following cach other in quick succession, speeches on the bill, and I should like to pro- Mr. HENDRICKS. I think the Senator havecaused much alarm here, especially asit is known gress as far as possible to-day, and I shall press from Ohio is mistaken; there is a special order that a considerable quanuty of the article is now in our public warehouses." it to a vote as early as practicable.
for one o'clock; the bill for the relief of conHe then alludes to former legislation regu
Mr. JOHNSON. I was unable to hear the
tractors in the Navy was the special order for lating explosives by Congress, and continues: honorable member.
one o'clock. It was so made the other day, “I am well informed that Austria has such a law.
Mr. CHANDLER. I say I should like to and I supposed it continued as such. The inventor himself is ignorant of many of the
have the discussion go on to-day and arrive at The PRESIDENT pro tempore. It is in the means which cause its explosion. A person is now on a vote as soon as possible. I understand there
Calendar of special orders, but does not stand his way to San Francisco with a package containing are several members prepared to make speeches assigned as a special order for to-day. some twenty-five pounds in his state-room, a quantity suficient to blow the ship to atoms. Other par
now, and I desire to press for a vote at the ear- Mr. IIENDRICKS. It was assigned the ties are known to be traveling with it in their carpot- liest possible moment. It has now been before other day as a special order, and was then bagson our railroads. Will you move in this matter? the Senate, as I observed, for three successive || passed over informally, It is a most important one, in which tho public is decply interested.
sessions, all of the last Congress and the whole Mr. SHERMAN. I believe we can dispose “WILLIAM A. BAYLEY.” of this session, and I presume every member of the Post Office bill in a short time. I desire this paper to be referred to the com- is prepared to vote upon it.
Mr. CLARK. I suggest to the Senator from mittee, with extracts from papers throwing Mr. JOHNSON. I do not know-certainly | Indiana that the bill to which he refers was not some light on the material of nitro-glycerine, that is not my purpose now—that I shall dis- passed over informally, but was superseded by and also a pamphlet issued by the parties who cuss the measure at all; but I know that the
a previous special order, the unfinished busihave undertaken its circulation and introduc- Senator from Maine is very anxious to be ness of the day before, so that it has lost its tion into use in the United States. It appears heard upon the subject before a vote is taken. place as a special order. that there is a stock company being organized I am not aware that there is any other member Mr. HENDRICKS. I ask the Chair if that in New York, with a capital of $1,000,000, of the Senate who proposes to debate it. be the effect. for the purpose of manufacturing in the Uni- Mr. CHANDLER. I then move that it be The PRESIDENT pro tempore. It stands ted States and introducing this terrible ex- made the special order for one o'clock on in the list of special orders but will not come plosive into general use. The pamphlet also Wednesday next, the day after to-morrow- p necessarily at one o'clock to-day. Having contains an extensive dissertation on the arti- that it be postponed until Wednesday at one been superseded by the unfinished business of cle. All these papers I desire to have referred, o'clock and made the special order.
a former day it stands on the Calendar among with the resolution, to the Committee on Com- The PRESIDENT protempore. That motion the special orders but is not to be called up at
is not in order, as the bill is not yet before the one o'clock as a special order, not having been The PRESIDENT pro tempore. The ques. Senate.
assigned for that hour to-day. tion is upon the resolution.
Mr. CHANDLER. I move to take it up for Mr. HOWE. I understand that there is no The resolution was adopted.
objection to letting the Post Office bill be The PRESIDENT pro tempore. It is moved Mr. JOHNSON. I am told that the hon- laid aside.
The PRESIDENT pro tempore. If no objec
Mr. GRIMES. Not at all. It regulates the amendment, ordered to be engrossed for a third tion be made that bill will be laid aside inform- pay department, and merely creates a few more reading, read the third time, and passed. ally. paymasters and makes a new grade of acting
POST OFFICE APPROPRIATION BILL. GEORGE R. FRANK.
assistant paymasters. Mr. HOWE. That being done, I move to pro
Mr. SHERMAN. This, then, is not a bill
Mr. SHERMAN. I now call for the regular
order. ceed to the consideration of House bill No. 472.
to change the pay? The motion was agreed to ; and the bill (H.
Mr. GRIMES. Oh, no.
The Senate resurned the consideration of the R. No. 472) for the relief of George R. Frank,
Mr. SHERMAN. Then I have nothing to
bill (H. R. No. 280) making appropriations for say about it.
the service of the Post O Hice Department during late captain in the thirty-third regiment Wisconsin volunteer infantry, was considered as in
The bill was reported to the Senate as
the fiscal year ending the 30th of June, 1867,
and for other purposes, the pending question Committee of the Whole. It proposes to direct amended, and the amendment was concurred the Paymaster General of the United States
in. It was ordered that the amendment be being on the amendment of Mr. HENDERSON
engrossed and the bill read a third time. The Army to settle and pay out of any inoney appro
to add the following as an additional section: priated, or hereafter to be appropriated for the bill was read the third time and passed.
SEC. — And be it further enactel. That in all cases
in which persons haye been appointed, either during payment of the Army, the account of George
the recess or during the session of the Senate, as R. Frank, late a captain in the thirty-third Mr. ANTHONY. I move that the Senate assistant postmasters or other civil officers under the
Government, whose appointments require the conregiment of Wisconsin volunteer infantry, for proceed to the consideration of Senate bill
sent of the Senate, and whose appointments, having his services, and all allowances as captain in No. 231.
been submitted to the Senate, have been rejected or that regiment, in the service of the United The motion was agreed to; and the bill (S.
not consented to before the adjournment thereof, no
money shall be drawn froin the Treasury, or used States, from the date of his last payment to the No. 231) for the relief of William Pierce was
from any fund or appropriation made or created by time of the final muster out and payment of the read a second time, and considered as in Com- law, to pay the salaries of such persons under such regiment, the same as though he had not been mittee of the Whole. It authorizes the Secretary
appointments, or under any previous appointment
to the same office, for services rendered after said mustered out as captain for the purpose of of the Treasury to issue to William Pierce du
adjournment. And if any such person shall, after being mustered in as major or otherwise. plicates of the following-described bonds of the such adjournment, be appointed to the game office, The bill was reported to the Senate without United States of America, Treasury Depart
no money shall be drawn or used as aforesaid to pay
his salary until his appointment shall have been conamendment, ordered to a third reading, read ment, for the Oregon war debt, issued by the sented to by the Senate at its succeeding session. the third time, and passed.
United States under an act of Congress approved Mr. JOHNSON. When the amendment now
before the Senate was offered, I suggested to Mr. GRIMES. I move that the Senate pro1st of July, 1881, at the Treasury of the United
the Senate and to the mover of the amendment ceed to the consideration of House bill No. States, with interest at the rate of six per cent.
that it was perhaps doubtful whether we had 197, to provide for the better organization of per annum, namely: No.679, No. 682, No. 681,
the power to pass a law of that kind. The the pay department of the Navy. and No. 270, with coupons attached; the first
Government have acted under the belief, Mr. SHERMAN. That will take considerathree bonds being for the sum of $100 cach,
founded upon the advice that they have received ble time, I fear. I therefore hope the regular | being signed L. E. Chittenden, Register of the and the last named being for $50, each of them
from the law oflicer of the Govern nient, on sevorder will be proceeded with.
eral occasions, that a commission issued by the Mr. GRIMES. If it does take time, let it | Treasury, and each of the coupons attached
President during a recess of the Senate, when come up again to-morrow in the morning hour. being signed by G. Luff; but before the issue
he has clearly the authority to appoint, conWe can go on with it until one o'clock now. of the new duplicate bonds William Pierce is
tinues to the end of the next succeeding session Mr. SHERMAN. I have no objection to
to execute and deposit with the Secretary of that. the Treasury of the United States, to the full
of Congress or of the Senate, whether or not
the nomination of the particular officer has in The motion was agreed to; and the Senate, acceptance and satisfaction of the Treasurer, as in Committee of the whole, proceeded to such bond of indemnity as is usually required being of opinion-and I certainly am not pre
the mean time been by the Senate rejected, they consider the bill, which provides that hereafter
by the regulations of the Treasury Department | pared to say that they are wrong--that the the active list of the pay corps of the Navy for the issue of duplicate certificates of inscribed
power conferred upon the President is a power stock. shall consist of eighty paymasters, forty passed
which Congress cannot directly take away. assistant paymasters, and thirty assistant pay
The bill was reported to the Senate without
However it might be if the provision was a amendment. masters. Paymasters are to be regularly promoted and commissioned from passed assistant
Mr. TRUMBULL. Is there a report in this
prospective one, yet if the true meaning of
those commissions is, that they continue until paymasters, and passed assistant paymasters
the end of the succeeding session, the party from assistant paymasters, subject to such ex
Mr. ANTHONY. Yes sir. The bonds were
who may be in office under the commission is aminations as are required by law, and such
lost by the burning of the steamer Golden as may be established by the Secretary of the Gate. The proof of the loss is as complete as
entitled to be paid ; and the fact, therefore, of
the adoption of this amendment, if that is the Navy. Passed assistant paymasters are to give it can be, and the petitioner is to give the bond
condition of the officer, if he has the right to bonds for the faithful performance oftheir duties
of indemnity that is usually required by the in the sum of $15,000, and their annual pay is regulations of the Treasury Department for
his salary which the appointment gives him, to be, at sea, $1,500; on other duty, $1,400; the issue of duplicate certificates of inscribed
will be, virtually, to repudiate an obligation
which the Government has contructed. From stock. on leave or waiting orders, $1,200. The Committee on Naval Affairs proposed
Mr. HOWARD. What was the amount of
the reading of the amendment at the desk, I the bonds lost?
suppose it goes to that extent. I submit, to amend the bill by inserting after the words
therefore, to the honorable member from Mis- assistant paymasters,'' in line eight of section
Mr. ANTHONY. Three hundred and fifty
souri whether he had not better modify it, if dollars. one, the following words:
Mr. CLARK. The case is well proved.
it is to pass at all, so as to clear it of all conAnd all passed assistant paymasters authorized by this act to be appointed who have not heretofore been
Mr. TRUMBULL. Is this like the case we
stitutional difliculty, and above all to clear it
from a result which would seem to me to be appointed and commissioned as assistant paymasters, acted upon the other day? and all assistant paymasters bereby authorized to be Mr. ÅNTHONY. We lrave passed a num
apparent, that the Senate are sanctioning a appointed, shall be selected from those wbo havo served as acting assistant paymasters for the term of ber of cases on the same specifications.
repudiation of obligations properly contracted two years, and who were eligible to appointment in Mr. CLARK. The bonds are fully identi
by the Government through the President. that grade when they were appointed acting assistant fied and the loss well proved.
The honorable member suggests to me that paymasters as aforesaid.
Mr. ANTHONY. The report is very short,
I have not properly apprehended the extent of Mr. GRIMES. I move to amend the amend
his amendment. What I have said was said ment by striking out the words “ two years''
if Senators desire to have it read, but I think
on what I supposed it to be as it was read from and inserting one year.'' it is unnecessary to read it.
the desk. I have the amendment now in my The amendment to the amendment was
The bill was ordered to be engrossed for a
hand, and I will read it for the purpose of asceragreed to.
third reading, was read the third time, and
taining whether I have properly apprehended Mr. GRIMES. In order to make it more passed
it. It is:
MRS. JERUSHA WITTER. specific I propose, at the end of the amend
SEC. - And be it further enacted. That in all cascs ment, to strike out that's before "grade," Mr. KIRKWOOD. I ask the Senate to take in which persons have been appointed, either during and insert “the;' and after“ grade" to insert up for consideration Senate bill No. 276.
the recess or during the session of the Senate, as as
sistant postmasters or other civil officers under the " of assistant paymasters;" so that the clause The motion was agreed to; and the bill (S. Government, whose appointments require the conwill read:
No. 276) for the relief of Mrs. Jerusha Witter, sent of the Senato, and whose appointments, having All assistant paymasters hereby authorized to be was read a second time and considered as in
been submitted to the Senate, have been rejected or
not conscnted to before the adjournment thereof, no appointed shall be selected from those who have Committee of the Whole. It directs the Sec
money shall be drawn from the Treasury, or used fron served as acting assistant paymasters for the term of one year, and who were eligible to appointment in
retary of the Interior to place the name of Mrs. any fund or appropriation made or created by law, to the grade of nssistant paymasters when they were
Jerusha Witter, widow of Dr. Amos Witter,
pay the salaries of such persons under such appoint
ments, or under any previous appointment to the appointed acting assistant paymasters as aforesaid. late surgeon of the seventh regiment Iowa in- same office, for services rendered after said adjourn
The amendment to the amendment was fantry volunteers, on the pension-roll. at the ment. And if any such person shall, after such adagreed to. rate of twenty-five dollars per month, to com
journment, be appointed to the same ofiice, no money
shall be drawn or used as aforesaid to pay his salary The amendment, as amended, was agreed to. mence from the date of her application for a until his appointment shall have been consented to
Mr. SHERMAN. This bill, I believe, changes pension, and to continue during her widow- by the Senate at its succeeding session. the pay of all the officers of the Navy. I have hood.
The latter part of the amendment was not not had time to look into it.
The bill was reported to the Senate without in the section as originally proposed. I think
that has been added at the suggestion of my concurrent action of the President and Senate; Mr. JOHNSON. Mr. Wirt's, and the same friend from Illinois, the chairman of the Judi- but the Senate not being always in session, and opinion has been given by several others. He ciary Committee.
vacancies liable to occur at any time, it was comes to this conclusion: Mr. HENDERSON. No, sir. He suggested necessary to provide some means by which the "The construction which I prefer is perfortly innosomething of the sort. offices might be fiiled; hence this other clause cent. It cannot possibly produce inischief without
imputing to the Presidenta degree of turpitude enMr. JOHNSON. He suggested it and you was inserted to allow the President, when a
tirely inconsistent with tho character which his offico adopted it. So far as the latter part of the vacancy happened in the recess of the Senate, implies, as well as with the high responsibility and amendment is concerned, it goes to this extent, to fill it by a temporary appointment or com
short tenure annexed to that office, while at the same
time it insures to the public the accomplishment of that the President has no authority to appoint | mission. It is not called an appointment at
the object to which the Constitution so sedulously to the same office any one whose nomination all, it is called the granting of a commission looks-that the offices connected with their peace and has been rejected by the Senate. That has for a person to exercise the duties of that office safety be regularly filled." been done from time immemorial, and nobody until the end of the next session of the Senate, That is to say, filled at all times. The hon. has ever questioned the authority to appoint. so as to afford an opportunity for the President orable member from Illinois, therefore, perThere is nothing in the Constitution which and the Senate together to fill the office in the haps, (certainly, if this construction given to limits the power of the President to appoint proper mode contemplated by the general pro- the clause by Mr. Wirt is the correct one,) is in whoever he pleases. You may by law, pervision of the Constitution.
error in supposing that a vacancy which exists haps, provide by way of punishment in certain Now, I suppose in speaking of this amend- during the recess of the Senate may not be cases that no one shall be appointed to office; ment immediately before the Senate, it is filled by the President during the subsequent but in the absence of any particular law exclud entirely competent to provide that no person recess of the body. But if the honorable meming any particular man from the right to hold shall be paid who is commissioned to discharge ber is right, the amendment which he proposes an office if he is appointed, the President's
the duties of an office during the recess in case to this bill, and which the member from Misauthority is just as absolute to appoint in a case
of a vacancy which has not happered during souri has adopted, would still be liable to obwhere his nomination of the same man has the recess. I beg pardon for saying so much jection. The uniform decision of the office been rejected as it is in the first instance to in interruption of the Senator from Maryland. has been that appointments made by the Presappoint him originally. I do not think I can I really forgot that I was speaking on an inter- ident during the recess, as to the authority to be mistaken as to this. Whether the President ruption,
make which there of course can be no doubt, should appoint is quite another matter; whether
Mr. JOHNSON. I am very much obliged for it is communicated to him in express words, he should not show that respect to the Senate to the honorable member; he requires no apol
are to continue until the termination of the next of not acting in relation to an appointment of
ogy; and I have an answer to each of the ques. succeeding session of the Senate. The comthis description which the Senate have refused
tions which his remarks suggest. The first is mission which is given to an officer appointed to advise is an entirely different inquiry.
that the construction of the clause of the Con. during the recess is a commission which by its Mr. TRUMBULL. The Senator from Mary- | stitution to which he has referred, has been terms is not to expire until the termination of land will allow me to suggest that that is not
before the executive branch of the Government the next succeeding session of the Senate; and the point which I made. I do not doubt that, frequently, and that construction from the first it has been held that it does continue until the as a question of power, the President may con- period when it was presented has, as I think, termination of the next session of the Senate, tinue to send in the nomination of the same
been uniform. The law officers of the Govern- although the nomination of the same man has person after he has been rejected. As to the ment have considered the word “happen'' as
been submitted to the Senate and has been propriety of doing so, that is another thing; 1 used in the part of the Constitution adverted rejected by the Senate. That has been the but as a mere question of power, as the Senator to by my friend from Illinois, as meaning
uniform construction of the Government, never, from Maryland well says, he may select whom “existing,'' independent of the cause of the as I believe, questioned. Then what is the he pleases where he has the power to make the vacancy. The object is to keep the Govern- result? appointment. But the point which I made was ment in operation, to keep in existence all Mr. TRUMBULL. I do not know that the that where a vacancy existed while the Senate
officers whom the Constitution deems neces- Senator from Maryland was on the Judiciary was in session, it was not competent for the sary to carry on the Government; and if, there- Committee at the time; but this subject was President to make any appointment after the fore, from any cause, no matter what, a va- brought before that committee at a previous Senate adjourned. The Constitution author: cancy in them exists at any time when the Sen- session, and very elaborately considered. All izes the President to appoint men to office by ate is not in session, the Executive has the these opinions of the Attorneys General which and with the advice and consent of the Senate, | authority to fill it. I have by me one of the have been given in favor of executive prerog. and a subsequent clause of the Constitution several opinions upon that subject. The one ative were examined and reviewed ; and the authorizes the President to commission officers that I have before me was given by Mr. Wirt committee unanimously reported on this branch to fill vacancies which may occur during the
when he was Attorney General, as far back as of the subject, that the vacancy must begin to recess of the Senate, whose commissions shall 1823. In it he says:
exist during the recess of the Senate to authorize expire at the end of the next session of the “I find that General Swartwout's commission as
the President to fill it. It is no new question. Senate. Now, it does seem to me very clear | Navy agent at New York, expired during the Inst Mr. JOHNSON. The honorable member
session of the Senate. Your nomination of another under this provision of the Constitution as an
did not hear me. . That does not affect the person to fill that vacancy was not confirmed by the original question, that the vacancy must happen | Senate, and the vacaney still exists."
question I am now considering. I answer, during the recess of the Senate to authorize What was to be done? Could the office be whatever may have been the opinion of the the President to fill it at all. This is the exact filled, the Senate having adjourned and the Judiciary Committee, by saying that Mr. Wirt, provision:
vacancy having existed during the session of in 1823, gave the opinion which I have just "The President shall have power to fill up all the Senate? He goes on to say:
read, and that other Attorneys General since, vacancies that may happen during the recess of the “It is the case, then, of a vacancy which arose
to whom the question has been submitted, have Senate, by granting cominissions which shall expire
during the session of the Senate, but which, from given the same opinion. But what I said just at the end of their next session."
the circumstance that has been mentioned, continues now, when I was interrupted by the honorable When can the President fill up a vacancy by
to exist in the recess. The question on which you
member, was, that the particular construction granting a commission which shall expire at the tion, you can fill the vacancy by a commission to
to which I was then adverting had never been end of the then next session of the Senate ? expire at the end of the next session ?'
called in question, and had never been before Clearly when a vacancy happens during a recess.
The provisions of the Constitution on this subNow, can it be said that a vacancy happens
the Judiciary Committee; and it presents the ject are-
"1. That the President shall nominate, and, by question, how long does a commission issued during a recess which existed when the Senate and with the advice and consent of the Senate, shall to a party appointed by the President during was in session ? By way of illustration, there appoint, all oflicers, &c.
2. That the President shall have power to fill up
the recess, when there is no doubt of his authoris a vacancy upon the supreme bench, which
all vacancies that may happen during the recess of ity to appoint, continue? It continues, accord. occurred, I think, since the last adjournment the Senate, by granting commissions which shall ing to the uniform construction of the execuof the Senate. Suppose the President of the expire at the end of their next session.' United States had omitted to fill that vacancy,
tive, and, so far as I am advised, never quesHad this vacancy first occurred during the recess
of the Senate, no doubt would have arisen as to the tioned by any department of the Government, to send in a nomination to the Senate until the President's power to fill it. The doubt arises from until the last day of the succeeding session of Senate closed its present session, would it be the circumstance of its having first occurred during
the Senate. contended that the President after the Senate by the Constitution is happen;" all vacancies that the session of the Senate. But the expression used
Mr. HOWARD. That is the exact language had adjourned could commission a man as a may happen during the recess of the Senate.' The of the Constitution. justice of the Supreme Court, to hold his com
most natural sense of this term is 'to chance-to fall
Mr. JOHNSON. That is the language of mission until the end of the next session of the
seems not perfectly clear. It may mean happen to the Constitution. That being the case, those Senate afterward? Would that be a vacancy take place; that is, to originate; under which sense
postmasters who were appointed during the which happened during the recess?
the President would not have the power to fill the
recess hold commissions that run to the termiThe intention of the framers of the Consti
the sense. 'happen to exist :' under which sense the nation of the present session of the Senate. tution was that all officers, saving some minor President would have the right to fill it by his tem- That is clear. If they do, then the vacancy appointments which might be made by the
porary commission. Which of these two senses is to heads of Departments in pursuance of laws bo preferred? The first seems to me most accordant
that occurs is a vacancy occurring during recess, with the letter of the Constitution; the second most because as long as there is a man in office which should be passed, should be made by accordant with its reason and spirit.”
under a commission the office is filled, and the nomination of the President with the advice lle goes into a long argument to show that there is no vacancy. The vacancy, therefore, and consent of the Senate. The framers of that is under all the circumstances the proper | begins to exist only at the termination of the the Constitution intended that all the officers of construction.
next succeeding session of the Senate. Now, this Government should be appointed by the Mr. SUMNER. Whose opinion is that? I can see and I saw it when I was a member -so as
plain practically to do away with what was the gen- spirit of the Constitution. The President ought ment, and after we have rejected his appointeral practice of the Constitution; but the framers not to appoint a person who has been once ment leaves the appointee to hold the office, I of the Constitution, in words, authorized the rejected by the Senate, unless for clear and say he can legally hold it no longer than the President to appoint and to commission parties manifest reasons, and if those reasons are so last day of the session, and when that day who were to hold their oflices to the very last clear and manifest they should be submitted to arrives it is clearly within the power of Conmoment of the session. The object of that was the Senate and the Senate would no doubt over- gress to say that that man, by virtue of that to insure the offices being filled. It seemed, rule its previous rejection of the nominee, and appointment, or by virtue of any succeeding no doubt, it went upon the hypothesis that the the incumbent ought to hold his oflice subject || appointment, shall receive no pay. President would nominate during the session to that power of the Senate to reject the nomi- The Senator from Maryland, perhaps, is susof the Senate, and in all probability if his nom: nation.
tained by the opinions of the Attorneys Genination of the particular officer was rejected, Mr. JOHNSON. Suppose he is rejected eral upon one point, and that is, that a vacancy that he would nominate somebody else, but on the last day of the session ?
exists at the adjournment of Congress. Mr. that until he nominated somebody else, and Mr. SHERMAN. Very well, then, if he | Taney says, otherwise the Government would that other party was confirmed by the Senate, is reappointed his salary ought to be sus- cease; and, contrary to the expressed opinion bis first appointment remained ; or otherwise pended until the Senate have an opportunity of the Senator from Illinois, it has been held, the office would go unfilled.
to reconsider its rejection. The rejection of notwithstanding the intervening session of the I admit with the honorable member from the Senate ought at least to have suflicient Senate, that alter an appointment has been Illinois that I think the President would war effect to prevent that person from holding made, and the Senate has failed to act upon it, as against the spirit of the Constitution, or, office or drawing pay for such services in that at the close of that session there is a vacancy rather, would be guilty of an abuse of power, office. That seems to me to be very plain. | again, and the President may appoint. There if he designedly kept in office a man whom the If, as the Senator from Missouri seems to is no such constitutional provision. This is Senate had thought proper to reject for reasons think, there is danger that the President will, | merely the construction given by the respective -which he had no ground to believe would after- against the rejection of the Senate, appoint Attorneys General; that is, that a vacancy again ward cease to influence the Senate ; but it very
the same man to that office, I say that person occurs, and the Senator from Maryland says often happens, or may happen to the Senate- ought not to receive money from the Treasury || that, according to the opinions heretofore given, it has happened—that they reject to-day, and until the reappointment is submitted to the if a vacancy exists immediately after the adfind that they have made a mistake, and are Senate and approved by it. With that view, || journment of the Senate, the President can willing to confirm to-morrow. The President, I think, the amendment is carefully worded || appoint whom he pleases. Very good; I will therefore, may have reason to believe that and will accomplish the purpose.
not take issue with the Senator on that subject; an appointee of his, rejected by the Senate, Mr. HENDERSON. I thank the Senator the President may appoint whom he pleases; Í would still
, if renominated, not be objectiona- from Ohio for his defense of this proposition, nly ask the Senate to say that if he does apble to the body; but whether so or not, whether | which I think is perfectly clear, and I have point the same individual, that individual shall it be an abuse of power or not, is not the ques- but little to add to what he has said. The not be paid ; that we will appropriate no money tion which this amendment suggests. The ques- proposition seems to me to be perfectly plain. whatever, and give him fair notice of that fact, tion is, has he the power? And if he has the || I examined all these opinions of the Attor- for the payment of his salary. That seems to power, and he has exercised the power by neys General, and I found, in addition to the me to be but just. appointing a particular man to office, that man opinion referred to by the Senator from Mary- The Senator says the President may appoint is entitled to his pay under the Constitution. land, quite an able opinion given by Mr. | whom he pleases, and if we undertake to interWe have no right to interfere with the power || Taney, when he was Attorney General, upon fere with that right, we are trespassing on the of the President indirectly. We cannot say the same subject, and sustaining in its posi- || constitutional right of the executive departthat he shall not appoint. If that would be tion the views taken by Mr. Wirt. It is an ment. That is the position. Suppose that mugatory, it is equally improper, I submit to opinion given in 1832 upon the appointment war exists, and Congress refuses to grant the Senate, to attempt to accomplish the same of a land officer in Mississippi, where the appropriations to carry it on; suppose we object indirectly, by providing that although he opinion is again given by that Department of declare that a certain individual is not a citappoints the appointee shall not be paid. If the Government, that where the President | izen of the United States by an act of Conthe Constitution gives to the appointee a right || appoints, the appointment holds until the last || gress, and the President appoints such an to hold his commission, then the honor of the day of the session; and if the session of the individual, are we bound to pay him? It is United States is involved; he ought to be paid; Senate shall be adjourned without acting upon very true that the President may appoint; but and yet this amendment says that he shall not the nomination there is a vacancy again. It | suppose that the President appoints to a civil be paid.
is contrary to my views of the subject, and office in my State a man who has been conMr. SHERMAN. I am generally indisposed yet I find that these opinions have been inva- victed of treason, if you please. Under the to legislate on general topics on an appropria- riably given as stated by the Senator from act which we passed in 1862, he is disqualified tion bill; but this amendment of the Senator Maryland. He is correct in stating that such from bolding office. Let me ask the Senator from Missouri contains two propositions which, has been the opinion, I believe, of every Attor- from Maryland, if the President appoints such I think, are simply declaratory of the existing || ney General who has been called upon for an an individual, are we bound to appropriate law; and, to avoid all doubt, they may as well opinion on the subject; but I differ with the money to pay him ? be inserted here. The first proposition declares | Senator from Maryland in the opinion that he Mr. JOHNSON. No. He has no right to that if a person who has been appointed dur- has expressed, that this amendment conflicts | appoint him. ing the recess of the Senate, or during the ses- with that view of the subject. I do not think Mr. HENDERSON. Why has he no right sion of the Senate, shall continue to hold his it has anything to do with it. I have so drawn to appoint him? Simply by virtue of the operoffice after the adjournment of the Senate, when the amendment as not to run counter to any ations of an act of Congress. Then cannot he has been rejected by the Senate, he shall | opinion given by any Attorney General on the we legitimately pass an act of Congress withnot draw any pay therefor. That is a propo- | subject.
out a conviction of the individual, declaring sition so plain that I think there can be no con- My idea in presenting the amendmentis, that | that if such and such a person shall be renomtroversy about it. If a person is appointed dur- if the President shall nominate an officer to the inated he shall not be paid? I cannot think ing the recess of the Sena .e his office certainly | Senate, and the Senate shall act upon it and for a moment that such a power is not lodged terminates at the adjourninent of the Senate. specifically, reject the appointment, and the in Congress. I cannot realize the fact for a Is there any doubt about that?
moment that a valid objection can be presented Mr. JOHNSON. No.
office after the adjournment of the Senate, he to the amendment. I have given careful Mr. SHERMAN. Then should he receive shall have no salary. I differ with the Senator attention to all the opinions that have been any pay for services rendered after the adjourn. || from Maryland in supposing that if Congress delivered on this subject, and I do not think ment of the Senate? That is the question. I shall not vote to the executive department that the amendment conflicts in any degree say he should not; and the first proposition || money, the executive department can continue whatever with these opinions. contained in this amendment simply provides its operations. I apprehend that Congress, by I desire, while I am up, to amend the amendthat if he continues to discharge the duties of refusing togrant appropriations in the midst of ment in the second line by inserting after the the office after the adjournment of the Senate a most important war, can stop the wheels of
word “ been," the words or shall be,” so as he shall not be paid for that work and labor Government in that behalf. We can abso- | to make it apply to the future as well as the done by him. That is a very clear proposition, || lutely refuse to grant the means to carry on a past. It was a mere oversight of mine that that after his office terminates he should not war, and it will necessarily cease, provided we those words were omitted. discharge the duties of the office, and especi- || should do so. Now, the President makes an Mr. JOHNSON. How will it read thep? ally should not draw a salary from the Treasury. || appointment. We have to advise and consent Mr. HENDERSON. In this way: The second proposition is almost as clear, in to that appointment, or else it is no appoint
That in all cases in which persons have been or my mind, that where the Senate has rejected a ment after the adjournment of the Senate. I shall be appointed during the recess or session of the particular appointment and the President un- grant that the appointment made lasts until Senate, &c. dertakes to appoint that same person again to the last day of the session; but the Attorneys It will make it apply in its provisions to the the same office, in the face of the rejection by General say that the President himself, by | future as well as to the past. I desire also to add the Senate, that person shall not draw his pay, making another appointment and submitting it several words in the twelfth line of the amend. from any appropriation from the Treasury, to the Senate, destroys the force of the first ment, so as to obviate an objection that may until the nomination has been again submitted appointment.' I have, therefore, drawn this be presented. I believe no such objection has to the Senate, and has been approved and rati- || amendment in reference to that point also. If been presented, but I can see very well that if
the appointment shall be made at the very last reappoint would apply only to those whose Mr. TRUMBULL. I am quite aware of days of the session of the Senate, and the Sen- nominations have not been acted upon, deny. || these opinions of the Attorneys General, comate adjourn without acting upon it, as suggested ing the power to appoint those whose nomina- mencing back some thirty or forty years ago. to me by the Senator from Illinois, some very tions hare been rejected. I suppose that will The Attorneys General are the appointees of serious difficulties may arise from the fact that answer the purpose the honorable member has the President, and we know that they hold notice has not been communicated to the offi- in view.
their offices at his will, and we know that when He may hold on for a month before he Mr. HENDERSON. I do not know that I
some persons have filled the presidential office really knows that the Senate bas rejected his have any serious objection to the modification they have not allowed persons to hold Cabinet appointment; hence some specific term should suggested by the Senator, provided he will offices who did not agree with them in opinion. be stated within which the salary may continue make the amendment at the end of line twelve I do not mean to derogate from the high charto be paid after the adjournment of the Sen- instead of the seventh line. I will insert the acter of the gentlemen who have filled the ate, and beyond that time it ought not to be words “ so rejected by the Senate," at the end office of Attorney General this country. paid. I will therefore modify my amendment of the twelfth line, so that it will read: They have been very able men, distinguished by inserting after the word "rendered" in the
And if any such person so rejected by the Senate men, and they have given opinions upon the twelfth line, the words “after the expiration shall after sueh adjournment be appointed to the clause of the Constitution which I have read, of thirty days.' That will give ample time for same oflice, no money shall be drawn, &c.
but I really think those opinions will not bear notice to be sent to any part of the United The PRESIDENT pro tempore. That mod- the test of examination. If you bring those States that the Senate has rejected a nomina- ification will be made as suggested by the opinions to the language of the Constitution, tion, and we shall pay him no salary from the Senator.
I think you will see that they cannot be sus. expiration of thirty days from the adjournment. Mr. GUTHRIE. I feel very much indis- tained. A mistake has arisen in the Senate
Mr. JOHNSON. Are those the only mod. || posed to vote for this amendment in any shape | in supposing that the President can appoint to ifications that you propose to the amendment? in which it has been put or is likely to be put. office at any time. The President cannot apMr. HENDERSON. Yes, sir.
The Constitution, which invests the nomina- point an officer either in the recess of the SenThe PRESIDENT pro tempore. The mod- tion and the appointment in the President, has ate or during the session of the Senate. The ifications named by the Senator from Missouri | provided for vacancies which may occur during Constitution of the United States has not put to his amendment will be made, the amend
The framers of the Constitution the appointing power in the President's hands, ment being under his own control as yet. knew that this Government in all its branches but it has put it in the hands of the President
Mr. JOHNSON. I do not propose to argue would require officers necessarily in the differ- ** hy and with the advice and consent of the the question again; but I submit to the hon- ent localities to carry it out, and they knew Scnate ;'' and he can no more appoint an orable member from Missouri, and to the mem- that vacancies would occur when Congress was officer without the advice and consent of the ber from Ohio, the acting chairman of the Fi- not in session and when the advice of the Sen- Senate than he can make a treaty without the nance Committee, whether if this provision is ate could not be taken, and they provided that || advice and consent of the Senate. He can do to pass at all it ought not to be still further those vacancies should be filled, and they neither. The language of the Constitution is modified. The latter part of the amendinent || allowed no restriction•upon the President in peculiar. This is the language: says that if any such person, that is, if any the selection of the individuals to do it. Now, I “He shall have power, by and with the advice and person whose nomination has been rejected or think in order that the Government may be car- consent of the Senate, to make treaties, provided upon whose nomination the Senate have not ried on and the laws faithfully executed, this pro
two thirds of the Senators present coucur; and ho
shall nominate, and by and with the advice and acted, is again appointed to the same office by vision for appointments during the recess of the consent of the Senate shall appoint, embassadors, the President, he is not to be paid. That applies || Senate was a wise provision and should receive other public ministers and consuls, judges of the to the two cases of a nomination rejected, and a liberal and fair construction, so that we shall
Supreme Court, and all other officers of the United
States, whose appointments are not herein otherwise a nomination not acted on. Suppose a nomi- not fail in having officers. In the best light in provided for, and which shall be established by law.” nation comes in a day or two before or the very which this proposition can be put, it is only
Then follows an exception authorizing Conday the Senate adjourns, or suppose the Senate | restricting the President in the appointment of without any good reason, for want of time, fails particular individuals. I can understand why
gress by law to vest the appointment of inferior
officers either in the President alone or in the to act, or is unwilling to act, it would rather the gentleman wants to keep a man who has the matter should go over, as has frequently been rejected by the Senate from receiving pay;
courts of law or in the heads of Departments.
That is not material to the question we are been done, is it necessary, in order to guard but I cannot understand why he should wish to
now discussing. against any possible mischief which could re- deny pay to the man on whose nomination the
Ilere, then, is the appointing power given to sult from leaving the President the power to Senate have not had time to act, or whom they appoint, to attempt to take from him indirectly were not willing to take the responsibility of
the President, by and with the advice and conthe power to appoint by providing that the rejecting, and thus allowed it to go over. It
sent of the Senate; and that is all the appointappointee shall not receive his salary? The is proposed to restrict the President from
ing power that is given in the Constitution of
the United States. The men who framed this vacancy may occur the day before, or the very | appointing him, and to declare that he shall day the Senate is about to adjourn, and he
Constitution saw that the Senate might not depend upon the will of the Senate at the next nominates; you cannot act upon it; you ad- session of Congress. I am satisfied there is no
always be in session; there might be a diffijourn; is the office to remain vacant during just reason for depriving any individual who
culty in consequence of vacancies occurring by the whole time that may intervene between has been nominated to the Senate for an office,
death or resignation while the Senate was not the time of the adjournment and the time of and they have not acted upon the nomination,
in session, and it would be impossible to fill the meeting of the next session? and he has filled the oflice and discharged the
that vacancy or to have the duties of the office Mr. DOOLITTLE. I beg to suggest to the duty, of his pay.
discharged unless a power was vested in someSenator from Maryland another case. Sup- Mr. SHERMAN. I will state to the Sena
body temporarily to detail a person to perpose a person in office should die on the day tor that that has been modified so as to confine
form those duties; and hence they added this
clause: the Senate adjourns, and no information is it only to cases where the officer has been actu
“The President shall have power to fill up all received by the President or by Congress, and ally rejected by the Senate.
vacancies that may happen during the recess of the therefore there could be no action, either by Mr. GUTHRIE. When I read the amend- Senato by granting commissions which shall expire the President or Congress, it is still a vacancy ment it was the other way.
at the end of their next session." during the session of the Senate, but the Pres- Mr. HENDERSON. I have modified it in Now, what shall the President have power ident cannot fill the vacancy, that respect.
to do? To " appoint” persons? Not at all; Mr. HENDERSON. This amendment only Mr. GUTHRIE. It was liable to the objec- but he shall have power to "fill up vacancies applies to the appointment of the same person tion, and the whole proposition is distasteful by granting commissions which shall expire at who has once been rejected.
to me, because it strikes at individuals instead the end of the next session." Mr. JOHNSON. I am speaking now, not of striking at principles. The individuals who exists all the time; and if the President deof your amendment, but of the doctrine held are appointed are not to be paid, though they sires to have that person to whom he has by the Senator from Illinois. Now, the par- fill the offices and it is within the power of the granted a commission to fill up the vacancy ticular inconvenience, and it seems to me, the President, and he is bound to see that these continued in the office, he nominates him to gross injustice, of a provision of that sort would offices are filled, so that the public service may the Senate and he is confirmed-not on this be avoided by striking out, if the amendment be discharged by competent individuals. It is commission that was granted ; that is not the is to be passed at all, in the seventh line the his duty to do so, and yet by this provision practice. If a postmaster in the city of Balwords or not consented to before the adjourn- you attempt to restrain him in the discharge timore had died in September last, and the ment thereof." It would then read :
of that duty by selecting certain persons and President had designated A B to discharge And whose appointments having been submitted saying if they are appointed they shall not be the duties of postmaster at Baltimore on tho to the Senate have been rejected, no money shall be paid for discharging the duty of the offices. I 1st of October by granting him a commission drawn from the Treasury, &c.
think we have no right to curtail his power in to expire at the end of the present session of I agree with the Senator from Ohio that he the premises, and I think we ought not to set the Senate, and he thinks proper to appoint has no right, under the original appointment the example of thus encroaching upon the that same person to the office of postmaster in of the P.resident, to continue in office after the President's prerogative of appointment. It Baltimore, this designation that he has made adjournment, because his commission expires | looks to me as if we were beginning to make by giving the commission is not what comes with the adjournment; but the next clause of a little war on his appointments before they before us at all; but he sends his name in to the amendment deprives the President of the are made. I do not think that is becoming the us, and asks the Senate to advise and consent authority to reappoint him. If the words which Senate. I shall therefore vote against the that he may appoint this man (whom he deI have just read be stricken out, the power to amendment in all its shapes.
tailed by giving him a commission to act there