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Mr. HENDERSON. That does not apply to the spans of the bridge. A span of three handred feet can be built on the Mississippi just as well as on the Ohio. There may be some difficulty about getting the elevation. but that has nothing to do with the span the Senator will see. I want to pu. these spans, if they are built in this way, three hundred feet instead of two hundred and fifty.

I suggest further that it ought also be amended so as to have the main span of the bridge, if they are built of continuous spans, immediately over the best or main channel of the river. There is no requirement of that particular in the bill.

Mr. RAMSEY. I have no objection to that at all. I cannot conceive what motive the company would have to build the main passageway over any, other than the main channel. Mr. HENDERSON. I but why presume so; does the Senator require it in the draw-bridges and not in continuous-span bridges? Mr. RAMSEY. I have no objection to that amendment.

Mr.HENDERSON. My amendment goes on: The main span of such bridge shall be made to cover the main channel of said river, and shall be three hundred feet in length, and the next adjoining span not less than two hundred and twenty feet; and the piers of said bridge shall be parallel with the current of the river.

I should like, also, to have a provision of this character:

No span of any such bridge beneath which water flows at low-water mark shall be less than one hundred and seventy-five feet in length.

Mr. TRUMBULL. What is the amendment proposed? Where does it come in?

Mr. HENDERSON. It is where the committee amend the bill, beginning at line seventeen of section two:

Provided, That if any bridge built under the provisions of this act shall be constructed with continuous and unbroken spans, it shall not be less than fifty feet above the high-water mark as understood at the point of its erection, measuring for such elevation from the sin face of the water at such high stage to the bottom chord of the bridge.

Mr. TRUMBULL. That is precisely what it is now except in different words.

Mr. HENDERSON. I wish to amend it; I prefer the different words:

The main span of such bridge shall be made to cover the main channel of said river.

There is no such provision in the bill. Mr. TRUMBULL. There is no objection to that.

Mr. HENDERSON. Then I provide that no main spans shall be less than three hundred feet in length, and also to shorten the next adjoining spans so as to be not less than two hundred and twenty feet in length, "and the piers of said bridge shall be parallel to the current of river." I think the wording of it is much better and it contains an important provision which is left out of the bill as it stands.

Mr. RAMSEY. You are reducing the length of the spans from two hundred and fifty to two hundred and twenty feet.

Mr. HENDERSON. There certainly can be no objection to that.

Mr. RAMSEY. I have no objection to the enlargement of the main span to three hundred feet, but I object to the reduction of the other spans from two hundred and fifty to two hundred and twenty feet.

Mr. HENDERSON. I only ask that the one over the main channel shall be three hundred feet; two hundred and twenty feet is enough for the adjoining span. I do not care for a larger one if you have a three hundred feet span over the main channel of the river; but the Senator may put it at two hundred and fifty feet if he will. I did not know the Senator would be willing to agree to that; but if he is, am perfectly willing that all the spans shall be two hundred and fifty feet except the main span, and let that be three hundred feet. That will cover any water running at low-water mark wherever the water runs at low-water mark.

I

Mr. RAMSEY. While I agree to accept the provision requiring the main span to be three hundred feet, I object to the deduction of the 39TH CONG. 1ST SESS.No. 143.

others from two hundred and fifty to two hundred and twenty.

Mr. TRUMBULL. The Senator from Missouri will allow me to make a suggestion. He has copied out of a statute passed some time ago a little different phraseology from that employed in this bill. I really do not think it is any better than that in the bill which the Senator from Minnesota has reported, and which provides "that if the said bridge shall be made with unbroken or continuous spans"-the Senator proposes to amend by changing the order of the words "unbroken" and "continuous," so as to read that if the said bridge shall be made with continuous and unbroken spans.' I do not think there is much importance, in an amendment of that kind, which adjective comes first. The only point of his amendment, as it seems to me, is that the wide span shall be over the center of the stream, and to that I understand the Senator from Minnesota has no objection; I certainly have none. If the Senator from Missouri will just put his amendment into form, I think we can agree upon it.

Mr. HENDERSON. It is in form now: That if any bridge built under the provisions of this act shall be constructed with continuous and unbroken spans―

Certainly that cannot be different from "unbroken and continuous."

Mr. TRUMBULL. I know; but there is no importance in amending the bill to change the order of those words.

Mr. HENDERSON. It was a mere oversight of mine if I have changed the order in which they come:

It shall not be less than fifty feet above high-water mark as understood at the point of its erection.

Mr. TRUMBULL. IIere it is "as understood at the point of location." There is no importance in that change of language.

Mr. HENDERSON. I suppose not; but my amendment goes on, "measuring for such elevation from the surface of the water at such high stage to the bottom chord of the bridge." Mr. TRUMBULL. Here it is "to the bottom chord of the bridge.'

Mr. HENDERSON. My amendment goes on, "and the main span of such bridge shall be made to cover the main channel of the river."

Mr. TRUMBULL. That is the new matter you propose to put in.

Mr. HENDERSON. Is there any objection to the three hundred feet span?

Mr. KIRKWOOD. That is assented to, I understand.

gin. Creswell, Dixon. Edmunds, Harris. Hendricks, Howe, McDougall, Morrill, Nesmith, Norton, Poland, Pomeroy, Riddle, Sprague, Stewart, Williams, and Wright-21.

So the amendment was rejected.

Mr. HENDERSON. I move to amend the second section, by inserting after the word "river," in line twenty-four, the words "and the main span shall be over the main channel of the river." There is no requirement in the bill now that the main span of the bridge shall be built over the channel or anywhere near the chaunel. I hope the Senate will permit this amendment to be made.

Mr. RAMSEY. I have no objection to it. Mr. HENDERSON. I thought perhaps there might be objection.

Mr. RAMSEY. At the same point, if the gentleman wishes to enlarge the main span to three hundred feet, he can propose it, and there will be no objection.

Mr. HENDERSON. That is what I desired to accomplish, but the Senate just voted it down.

Mr. RAMSEY. Not that alone. The Sentor incumbered that provision with a great deal of other matter which we did not want to adopt.

Mr. HENDERSON. There were but two points in my amendment which has just been voted down.

Mr. RAMSEY. The great objection to that amendment was, that it did not elevate the bridge sufficiently. It left out this provision of the section as it stands:

It shall not be of less elevation in any case than fifty feet above extreme high-water mark.

Mr. HENDERSON. That is just what my amendment was; but I cannot go into a discussion of it with the Senator. I really want the best bridge I can get, and I will put the main span at three hundred feet. The amendment I move, therefore, is to insert after the word "river," in the twenty-fourth line of the second section, the words "and the main span shall be over the main channel of the river, and shall be not less than three hundred feet in length."

Mr. RAMSEY. I have no objection to that. The amendment was agreed to.

Mr. HENDERSON. I call the Senator's attention to the word "nearing," in the thirty. fourth line of the second section. It seems to me that it was certainly intended to be "measuring."

The PRESIDENT pro tempore. That is a clerical error which has been corrected, as the Chair is advised.

Mr. HENDERSON. I now offer the fol

Mr. HENDERSON. I suppose that is not a matter of very great consequence, because, of course, all these bridges will now be built lowing amendment as an additional section: with a pivot pier. I suppose no company will build a bridge of this character when they can build one much cheaper with a pivot pier and draw. At any rate I will offer my amendment. I move to strike out all the words between "provided," in the seventeenth line, and "river," in the twenty-fourth line, and in lieu of those words to insert:

That if any bridge built under the provisions of this act shall be constructed with continuous and unbroken spans, it shall not be less than fifty feet above high water-mark as understood at the point of its erection, measuring for such elevation from the surface of the water at such high stage to the bottom chord of the bridge. The main span of such bridge shall be made to cover the main channel of the river, and such span shall not be less than three hundred feet in length, with also one of the next adjoining spans of not less than two hundred and fifty feet in length; and the piers of such bridgeshall be parallel with the current of the river.

The question being put, it was declared that the amendment was rejected.

Mr. HENDERSON. I call for the yeas and nays. I thought the amendment was understood to be agreed to.

The yeas and nays were ordered; and being taken, resulted-yeas 7, nays 21; as follows:

YEAS-Messrs. Anthony, Davis, Henderson, Howard, Lane of Indiana, Saulsbury, and Sherman-7. NAYS-Messrs. Chandler, Clark, Conness, Doolittle, Fessenden, Foster, Grimes, Guthrie, Johnson, Kirkwood, Lane of Kansas. Morgan, Nye, Ramsey. Sumner, Trumbull, Van Winkle, Wade, Willey, Wilson, and Yates-21.

ABSENT-Messrs. Brown, Buckalew, Cowan, Cra

And be it further enacted, That any bridge or bridges erected under and according to the provisions of this act shall be lawful structures, and shall be recognized and known as post routes, upon which also no higher charge shall be made for the trausportation of the mails or troops and munitions of war of the United States than the rate per mile which the company or companies owning the railroads on each side of the river, and using said bridge, charge for the same service; and the officers and crews of all vessels, boats, and rafts navigating said river are required to regulate the width and the height of the sa.ne so as not to interfere with the erection or use of any bridge erected under the provisions of this act.

Mr. KIRKWOOD. Is that in lieu of section three?

Mr. TRUMBULL. I do not know that I understand the amendment. Is it proposed to strike out section three?

Mr. HENDERSON. No, sir; I have not made any such motion. Mr. TRUMBULL. There is a part of this section already in the bill. Mr. IIENDERSON. But there is some other matter in this.

Mr. TRUMBULL. It would be very incongruous to repeat over again provisions already contained in the bill. A portion of this amend ment is precisely what the third section is.

Mr. HENDERSON. That provision, I thought, could be stricken out afterward. I am not particular, however, about the amend ment. If the Senator from Illinois objects to it, of course it will be voted down.

Mr. KIRKWOOD. I suggest to the Senator from Missouri that there is a part of his amendment which would come in at the end of the third section, and perhaps he had better offer it in that form.

Mr. HENDERSON. I prefer the language as I have submitted it; but I do not wish to take up time, for I see that the Senate is impatient. I withdraw the amendment.

The PRESIDENT pro tempore. The question now before the Senate is on concurring in the amendment made as in Committee of the Whole to the second section as it has been amended.

The amendment, as amended, was concurred in.

The PRESIDENT pro tempore. There is another amendment made as in Committee of the Whole which was excepted and which will now be read.

The Secretary read the amendment, as follows:

And be it further enacted, That a bridge may be constructed at the town of Hannibal, in the State of Missouri, across the Mississippi river, so as to connect the Hannibal and St. Joseph railroad with the Pike County and Great Western railroads of Illinois, on the same terms and subject to the same restrictions as contained in this act for the construction of the bridge at Quincy, Illinois.

The amendment was concurred in.

The bill was ordered to be engrossed for a third reading, and was read the third time and passed.

Mr. TRUMBULL. I think the title of the bill should be amended. It does not indicate what the bill is. I move to amend the title so as to read, "A bill to authorize the construction of certain bridges, and establishing them as post roads."

The amendment was agreed to.

PACIFIC RAILROAD-EASTERN DIVISION.

Mr. HOWARD. The Committee on the Pacific Railroad, to whom was referred a message of the President of the United States recommending an extension of the time allowed by law for completing the first one hundred miles of the Union Pacific railroad, eastern division, have had the same under consideration, and have directed me to report the message and documents with a joint resolution. I ask for the present consideration of the joint resolution.

Mr. SHERMAN. I object. I have already yielded an hour and a half, and I insist upon the regular order of business.

The joint resolution (S. R. No. 80) extending the time for the completion of the Union Pacific railway, eastern division, was read and passed to the second reading.

USE OF THE HALL.

Mr. WILSON. A day or two ago I offered a resolution to grant the use of this Hall to Mr. Murdoch for a reading for the benefit of the orphans of soldiers and sailors. I desire to take up the resolution and have the question settled whether we shall grant the use of the Hall or not, as the reading is to take place on Thursday, and the parties interested are exceedingly anxious to know whether the use of the Hall is to be granted.

Mr. SHERMAN. I call for the regular order of business. We can just as well decide in the morning the matter referred to by the Senator from Massachusetts as we can now.

The PRESIDENT pro tempore. The special order having been laid aside informally by unanimous consent, must now come up, a call for it being made.

POST OFFICE APPROPRIATION BILL. The Senate resumed the consideration of 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, the pending question being on the following amendment, proposed by Mr. HENDERSON as an additional section:

And be it further enacted, That in all cases in which persons have been or shall be appointed, either during the recess or during the session of the Senate, as assistant postmasters or other civil officers under the

Government, whose appointments require the consent of the Senate, and whose appointments, having been submitted to the Senate, have been rejected or not consented to before the adjournment thereof, no money shall be drawn from the Treasury or used from any fund or appropriation made or created by law to pay the salaries of such persons under such appointments, or under any previous appointment to the same office, for services rendered after said adjournment. And if any such person so rejected by the Senate shall, after such adjournment, be appointed to the same office, no money shall be drawn or used as aforesaid to pay his salary until his appointment succeeding session. shall have been consented to by the Senate at its

Mr. HENDERSON. The Senator from Illinois has submitted an amendment to the bill, the language of which I like better than that, and therefore I withdraw the pending amendment, at least for the time being, until his amendment shall have been acted upon, though if I see fit I may propose it afterward with some change of language; I am not satisfied with it in its present shape.

The PRESIDENT pro tempore. The Senator from Missouri withdraws his amendment. Mr. TRUMBULL. I offer this amendment as an additional section:

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. JOHNSON. I should like to know the reasons why the honorable member from Illinois supposes a provision of that sort is constitutional. There was a period in the beginning of the Government when the President's power to remove was considered somewhat questionable. It was, however, decided by the Senate to be a clear power; and from that time to the present I do not know that the legality of the power has ever been questioned. Mr. Webster, many years ago, when there was a contest between the then President of the United States and the Senate-a contest just as angry or just as excited as the contest which may be supposed to exist now between a majority of the Senate and the President-was disposed to call in question the power of removal; but the Senate will find that, in a letter written by Mr. Madison, in the Papers we have recently published, in reply to Mr. Coles, who had been his former secretary, he enters into an argument on the subject and considers it a question no longer open for controversy. The Senate were very anxious at that time to prevent, if they could do it, the power which President Jackson was from time to time exercising, but they had to abandon it. I think the Supreme Court have more than once, the question being presented, recognized the power to remove, and they have done it even in relation to a judicial officer. The members of the judicial department of the Government provided by the Constitution hold their office during good behavior. But, notwithstanding that, the judges of territorial governments, it was held, were always liable to be removed by the President; and a case was brought into the Supreme Court by a judge who had been removed, claiming his salary on the ground that he could not be removed, not because there existed no power to remove in relation to officers generally, but because of the particular character of his office; and the Supreme Court, as well as I recollect -I do not speak with positive certainty on the subject-decided that a judge in a Territory was not to be considered as a judge within the judicial department of the Government, and was therefore just as liable to be removed as any other officer appointed under the Constitution and laws.

Now, I am not sure that I exactly understand the amendment proposed by my friend from Illinois. He does not mean, I suppose, to deny that the President has a right to remove, but he provides that if he does remove, and if the officer whom he appoints to take the place of the officer removed goes into office, he shall receive no compensation until his appointment

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shall have been confirmed by the Senate. I suppose that the time when the President of the United States is.to send in his nomina tions is a matter for himself to decide, as it is for the Senate to decide at what time they will act upon the nominations when they shall come in. If he has a right to remove and he has right to appoint, and no officer is to get his pay until the Senate have acted upon the nomination, when it shall act, what is to become of the interests of the country in the interval that may pass between the period of the removal of the original incumbent and the confirmation of the nomination of his successor? Are the wheels of the Government, as far as they depend upon the filling of that office, to be arrested, to be stopped? And if they are not, is it proper to pass such an amendment as this, as the amendment will necessarily lead to that result? It cannot be supposed that a man will go into office and remain there subject to the contingency that he may be rejected by the Senate, that no matter how long he remains during a long session he is to get nothing unless the Senate shall confirm him. I should like to hear from my friend from Illinois upon what grounds he supposes that the power in the first place exists; and secondly, if the power exists, upon what grounds he supposes it to be advisa ble to exercise the power.

Mr. TRUMBULL. Mr. President, I do not think that the question of the power of the President to remove from office an incumbent

and appoint another in his place during the recess is necessarily involved in the amendment which I have offered. That is a controverted point and has been from the foundation of the Government. The practice, I am aware, has been for the President to exercise the power to remove from office by making new appointments; and this has generally been acquiesced in.

The laws upon this subject have not, however, been uniform. In 1863 there was created an officer called the Comptroller of the Currency, and in the law establishing the Currency Bureau it was provided that "there shall be appointed a chief officer to be styled the Comptroller of the Currency, who shall be under the general direction of the Secretary of the Treasury." The law further provided that he shall be appointed by the President, on the nomination of the Secretary of the Treasury, by and with the advice and consent of the Senate, and shall hold his office for the term of five years unless sooner removed by the President by and with the advice and consent of the Senate.'

That law, passed in 1863, provided that the Comptroller of the Currency should be removed from office by and with the advice and consent of the Senate alone, and according to that statute it is not competent for the Presi dent of the United States to remove the Comptroller of the Currency. except by the advice and consent of the Senate. The legislative construction which was put upon the President's power in 1863 by this act was that it was competent for Congress to provide that persons could be removed from office only by the advice and consent of the Senate when they were appointed by that advice and con

sent.

Mr. JOHNSON. What is the date of that act?

Mr. TRUMBULL. It was approved by the President of the United States at that time, Mr. Lincoln, and I believe I have not looked into the Journals-it was voted for, my impres sion is it was voted for by the present Presi dent of the United States.

Mr. JOHNSON. What is the date of its approval?

Mr. TRUMBULL. The approval was on the 15th of February, 1863.

Mr. SHERMAN. I think the present Presi dent was not a member of the Senate then.

Mr. TRUMBULL. I am not quite sure whether the present President of the United States was in this body at that time and voted for the law. My recollection, however, is that

he was, but I would not affirm that to be a fact without reference to the Journal; but whether that be so or not, that was the legislative construction of Congress on this power of the President, and the law received the approval of President Lincoln.

But, sir, the amendment which I have proposed does not involve that question. According to my understanding, the President has no authority to fill a vacancy which exists in an office, by himself, without the advice and consent of the Senate, unless that vacancy occurs while the Senate is not in session; and one object of this amendment is to prevent appointments of that character. I deny that if a vacancy exists in an office while the Senate is here, the President has any power to fill up that vacancy without the advice and consent of the Senate. It takes the President and the Senate both to make an officer; but he may make a new appointment in case that officer dies during the recess of the Senate, or resigns his office, or in case the term for which he was appointed expires during the recess of the Senate so that a vacancy occurs, though I am not quite sure that he would have authority to appoint in the case of an expiration of the term, because that may not be the happening of a vacancy, inasmuch as the term expires at a fixed period, there is no uncertainty about it, and it is competent for the President to anticipate that period by sending the nomination of an officer to the Senate while it is in session for its confirmation. I am by no means clear that he has authority to appoint in that case, for then it becomes an appointment to an original office when the term has expired. However, it is provided in this amendment that in either of these cases the President may make an appointment or may fill up the vacancy, and the party will receive his salary. He has the constitutional authority to do this.

But, Mr. President, the control of the reve nues of the country and of the money of the country is not in the hands of the President without the authority of Congress; he has no control over one dollar; he cannot draw his own salary except by authority of law; and the Senator from Maryland will observe that this provision does not go to the appointing power at all; it is merely a provision in regard to the salaries of officers or the compensation they are to receive. It is entirely competent for Congress to provide just as much compensation as it pleases, or no compensation. It may authorize an appointment of an officer without attaching any salary or any fees to the discharge of the duties of the office. I think there is a bill now pending, reported by the Senator from Massachusetts, the chairman of the Committee on Foreign Relations, that provides for the appointment of certain commis sioners without any salary whatever. It is entirely competent for Congress to make such provision. There is, therefore, no constitutional question involved in this amendment which I have offered.

We propose to provide that no man placed in an office or undertaking to exercise or perform the duties of an office without the consent of the Senate shall receive any compensation whatever, unless his appointment is to fill up a vacancy which happens by death, resignation, or expiration of the term of service. The intention of this amendment is to prevent any person being turned out of office and another put in his place during the recess of the Senate so as to receive his pay. If the Presideat thinks proper to undertake to remove officers, the successor will receive no pay, if this provision becomes a law, until that successor is confirmed by the Senate. That certainly involves no constitutional question, for it is entirely competent for Congress to pay what salaries it pleases to the officers of the Government,

or no salaries at all. The chief object, however, of the amendment was to check the practice of filling up offices in the vacation of the Senate when there was an opportunity to have filled them by and with the

advice and consent of the Senate when it was in session.

Mr. JOHNSON. Mr. President, I am aware that the money of the Government is placed under the control of Congress; and in one sense, therefore, Congress has the right to refuse to pay salaries. They may refuse to pay the President his salary, now fixed by law. They may refuse to appropriate at all for the payment of the compensation which the laws give, or which the laws ought to give, to the officers who may be appointed from time to time by the appointing power. But the honorable member, I am sure, will see that the ground upon which he places the constitutionality of this legislation, as far as that particular ground is concerned, is one which will not bear examination. If the President has the power to appoint, and the appointee has the right to go to office under the Constitution, although Congress may have the power to say that they will not pay, have they the moral right to say that they will not pay? And if there is no moral right to deny payment in such a case, are they not warring against the spirit of the Constitution, though not against its letter, by refusing to pay?

The Senate of the United States, or both branches of Congress, may become so dissatisfied with the President of the United States as to be exceedingly anxious to get rid of him. His remaining in office may interfere with some favorite policy of Congress; Congress may look to political measures upon which, as they suppose, the welfare of the country depends, and find that they cannot accomplish their purpose in having such measures adopted as long as the incumbent of the presidential office is in his seat. There are two ways to get rid of him. One is to impeach him. That re

quires, to be successful, a vote in the body of two thirds. Another is to starve him out, and that may be accomplished by refusing to pay his salary; and the honorable member's argument would be just as solid in a case of that description in support of legislation such as I have supposed, as it is in relation to the case before the Senate, provided the President has the authority to remove and to appoint.

Mr. President, in all good temper, I caution my friends, or rather the member who offers this amendment, against what may be the consequences of this precedent in the future. It may answer the temporary purpose for which he avows it now to be designed; but it may be relied upon hereafter to answer a temporary purpose which the honorable member from Illinois would be the last man to wish to sec accomplished. The precedent may return to plague the inventor. The dominant party now in each House of Congress may, in the course of time, become a minority. They may have elected their President, and he may be an offcer who is willing to carry out their particular policy. These seats, however, and the seats in the other House may be filled by a majority of members who think that the policy which the minority and the President for the time being may desire to carry out, is dangerous to the country, and then they may propose just what the honorable member proposes now, to take away the power of appointment, as he says, but to refuse to appropriate; not to declare that he shall not appoint, but to declare that if he does appoint his appointment will be futile; and they may go further and say following the principle for which this may be cited as a precedent, that the President, for the time being stands in the way of the true interest and honor of the country, or stands in the way of some party aspiration; but as he cannot be gotten rid of by impeachment they strike at his appointing power, and if they cannot get rid of him by taking from him, practically, the benefit of his appointing power, they accomplish the same thing by providing that no money shall go out of the Treasury to compensate his appointees.

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shall be able to find the letter to which I adverted when I first rose, from Mr. Madison, upon this subject, written when his intellect was as bright as it ever was, written at a period when (if there is any war between Congress and the existing President) there was a war even more bitter than may be supposed to be existing now, between the then Congress and the then President of the United States.

Mr. CLARK. Is there a war now?

Mr. JOHNSON. I say supposing there may be. I only put it as a supposition. I am sure there is no war now, because the amendment proposed by the honorable member from Illinois shows that there is entire confidence in the President; no doubt about that. [Laughter.] Of course I have no right, except by way of supposition, to conjecture that there is.

a war.

Mr. SUMNER. A mere hypothesis.

Mr. JOHNSON. It is a mere hypothesis. I am sure there is no member of the Senate less likely to occasion a war with the President than the honorable member from Illinois; but this has a little squinting that way; and, unfortunately, perhaps, he does not see it. [Laughter.] If the Senate will indulge me until I find the letter to which I have adverted, I will read it as bearing more persuasively upon the question which I think is involved than I am sure would be the effect of anything I could say, While my friend behind me, [Mr. HENDERSON,] to whom I have turned over the book, is searching for the letter, let me say a word on the question what will be done by the proposed amendment.

The honorable member from Illinois tells the Senate that it raises no such constitutional question as I have suggested. If it does not, there is certainly no necessity for the amendthat which the law now accomplishes, there is If what it proposes to accomplish is

ment.

no occasion for the amendment. If it leaves the appointing power precisely as free as it is now, there is no occasion for the amendment. But as the amendment is offered upon the hypothesis that the law as it now stands will not accomplish what the amendment proposes to accomplish, the question is whether it does not seek to accomplish something which interferes with the appointing power of the President. Now, does it not? Since it was settled in 1789 nobody has ever seriously questioned that the President has the right to remove. Mr. Webster and Mr. Clay during the exciting periods to which I have adverted, while President Jackson was at the head of the Administration, suggested that there was a serious doubt whether the original decision was a correct one; but as well as I remember, both of them, and particularly Mr. Webster, admitted that it was too late to question the constitutionality of that decision.

What Congress did in the act to which my friend from Illinois adverts was done under the clause of the Constitution which gives the authority to provide for the mode in which officers whose appointments are not provided for in the Constitution may be appointed. That is all; but this goes a stone's throw beyond that. I understand the honorable member from Illinois now as avowing that his purpose is to deny to the President the power to appoint during the recess of the Senate, but that he does not mean to deny his power to remove. What is the benefit of the power to remove unless there exists in connection with it the power to appoint? What is the effect of the removal? Is it to get rid of the incumbent? The grant upon which the power was originally claimed, and was established, was important to the interests of the Government that there should be a right to remove. To give the President the power to remove, and to deny him the power to appoint, is to leave the Government unrepresented in its several administrative departments, to leave offices unfilled. Is the Senate prepared to do that? What is the I have now the book before me, and if the President to do? I have no more knowledge Senate will indulge me for a few moments Ill of the purpose of the President than any mem

ber of the Senate; it is not my good fortune to see him except very seldom, and that upon mere matters of business; but what is he to do? If he be the man that his friends suppose him to be, and that his whole life proves him to be, he is a man of firmness-moral as well as physical firmness. Suppose he is of opinion that it is the purpose of Congress to war upon him, by taking from him the power to remove, not by taking it from him directly, but by denying to those whom he shall appoint in place of those that he removes, compensation, what will he do? He will remove and not appoint. Then, what are you to do? Impeach him? If you do, what will be his defense?" My power to remove has been settled from the organization of the Government down to the time of your attempted indirect interference with it. You do not deny my power to remove directly; what you propose to do is, to deny payment to any officer whom I may appoint. You claim that right. So far as power is concerned, you have the power, because no money can be drawn from the Treasury without an appropriation, and you have the power to deny the appropriation. What then? I remove notwithstanding; I will not let a dishonest officer be in; I will not let an. incompetent officer be in; I will not let a man who reviles me be in ;" and no President from the beginning of the Government to this time, ever has. "I remove such a man; I try to fill his office, but I can get nobody to take his place because you say you will not pay whoever may take his place, and what is the result? The wheels of Government are stopped, and I make an issue with Congress before the people. Whose fault is it? Is it mine, or is it the fault of Congress?"

But, independent of all, Mr. President, I submit to my friends who are in favor of this measure, if any are in favor of it, except the mover of the amendment, what possible good is there to be accomplished? I speak it in no party spirit, for if I know myself I am not under the influence of party spirit, and in the present condition of the country I cannot be made to feel under the influence of party spirit. I ask, in the present condition of the country, what good is to be accomplished by carrying on an apparent war with the President, doing what has never been done in relation to any of his predecessors? What is the condition of the country? The war against rebellion over; the Union still practically dissolved; and what are the signs of the times? The Secretary of State has told us that he has instructed our minister at Vienna to ask for his passports if any Austrian troops are sent to the aid of the tottering empire of Maximilian. No doubt they will be sent. Then I suppose the Austrian minister here will ask for his passports. What are we to do?

Mr. CRESWELL, and others. Let him go. Mr. JOHNSON. Certainly we cannot prevent his going; but what may follow from his going. If we attempt to carry out the threat which is involved in the instructions to our minister at Austria to leave that court, warwar with Austria. Where can we strike her? We may strike the few soldiers she sends into Mexico, but that will do her little if any harm; but where can she not strike us? Fill the seas with privateers, and for aught that we know engage Napoleon as an ally.

of fifteen shall be adopted by Congress. Surely, this is not a time to exhibit before the world divided councils.

Our wishes individually are as nothing; our party hopes, whatever they may be, in my estimation, are as nothing; party ascendency by either of the parties which are supposed now to divide the country is as nothing compared with the restoration of the Union, and standing, not divided, but standing as one and a united people all under the protection of the Constitution that our fathers framed for us and adopted for us, and entitled to all its rights. I have now the letter to which I alluded some time ago. It is a letter from Mr. Madison to Edward Coles, who had been his former secretary, dated October 15, 1834. It is quite a long letter; but there are only one or two portions of it that bear on the particular question. In a former letter he had told Mr. Coles that in his opinion the Senate of the United States were inculcating what he termed innovating doctrines; and Coles asked him to specify what he considered to be innovating; and in answer to that request Mr. Madison says:

"You are at a loss for the innovating doctrines of the Senate to which I alluded. Permit me to specify the following:

The claim, on constitutional ground, to a share in the removal as well as appointment of officers is in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation would not only vary, essentially, the existing balance of power, but expose the Executive, occasionally, to a total inaction, and at all times to delays fatal to the due execution of the laws.

"Another innovation brought forward in the Senate claims for the Legislature a discretionary regulation of the tenure of offices. This, also, would vary the relation of the departments to each other, and leave a wide field for legislative abuses. The power of removal, like that of appointment, ought to be fixed by the Constitution, and both, like the right of suffrage and appointment of Representatives, to be not dependent on the legislative will. In republican Governments the organization of the executive department will always be found the most difficult and delicate, particularly in regard to the appointment, and, most of all, to the removal of officers. It may well deserve consideration how far the present modification of these powers can be constitutionally improved."

*

Another innovation of great practical importance

espoused by the Senate relates to the power of the Executive to make diplomatic and consular appointments in the recess of the Senate. Hitherto it has been the practice to make such appointments to places calling for them, whether the places had or had not before received them. Under no Administration was the distinction more disregarded than under that of Mr. Jefferson, particularly in consular appointments, which rest on the same text of the Constitution with that of public ministers. It is now assumed that the appointments can only be made for occurring vacancies, that is, places which had been previously filled. The error lies in confounding foreign missions under the law of nations with municipal officers under the local law. If they were officers in the constitutional sense, a legislative creation of them being expressly required, they could not be created by the President and Senate. If, indeed, it could be admitted that as offices they would ipso facto be created by the appointment from the President and Senate, the office would expire with the appointment, and the next appointment would create a new office, not fill a vacant one. By regarding those missions not as offices, but as stations or agencies, always existing under the law of nations for Governments agreeing, the one to send the other to receive the proper functionaries, the case, though not perhaps altogether free from difficulty, is better provided for than by any other construction. The doctrine of the Senate would be as injurious in practice as it is unfounded in authority."

The first extract which I read is that which bears more immediately; and I will read it again. The italics are in the work, no doubt by Mr. Madison himself.

ident of the power to remove, not directly, but by taking from the appointees whom he may appoint the compensation which the law would otherwise give.

Now, I submit in all frankness, and, to repeat, without the slightest wish to effect any party purpose, without the most remote idea that my judgment upon this question is influenced at all by any party consideration, that it is all-important to the peace, quiet, prosperity, and honor of the country that we should get along with the President, however he may be, without trenching at all upon the powers which from time to time have been held from the beginning of the Government to belong to that department.

Mr. SUMNER. Mr. President, I should like to simplify the question before the Senate, which, it seems to me, the learned Senator from Maryland has done more to perplex than to explain. I say that, of course, with great respect to the learned Senator. It is said that the fox, when pursued, cunningly contrives to throw his pursuers off the scent, and it did seem to me as I was listening to the Senator, that he was imitating that sagacious animal. He was trying to throw the Senate off the scent, and now, sir, my simple purpose will be to bring the Senate back upon the scent.

The Senator very ingeniously reminded you of our relations particularly with Austria, and he opened before us prospects which under his powerful description were calculated certainly to awaken the attention and the interest of the Senate. I share, sir, the solicitude of that Senator with reference to the question to which he has referred, but I beg to remind the Senate that it surely can have nothing to do with this question. Whatever may be our relations with Austria, or with any European Power, I know not how those can affect our decision on the simple question now before us.

Then, again, sir, there is another question of great importance, which the Senator has introduced, and which is, to a certain extent, I admit, germane to this question. I mean that question so much discussed in the early history of our country, and which has never been entirely out of mind, to what extent the Senate may share with the President the power of removal. The Senator opens that question on this occasion, as if that was in issue in the amendment proposed. Permit me to remind the Senate that however associated it may be historically, perhaps, with the amendment now before the Senate, in point of fact it has nothing to do with it. You may have one opinion or another opinion on the question which the Senator has raised, and it will not affect your conclusion on the proposition upon which you are to vote. Whether Senators agree with the learned Senator from Maryland, that the Senate cannot share with the President the power of removal, or whether they disagree with him, what has that to do with the question that is now before us?

Therefore, sir, let me say, the Senator did not advance one jot in his argument when he adduced the authority of Mr. Madison, for Madison did not address himself to the ques tion on which you are to vote. He wrote on entirely a different question, the power of removal. When the power of removal is in discussion, I, for one, shall be ready to enter into that debate, and of course I shall give all due weight to the authority of Mr. Madison, and also the other names which are associated The innovation being a claim of participa- Senator, though he is not ignorant of it, that with that question. I may remind the learned tion in the power of removal

"The claim, on constitutional ground, to a share in the removal as well as appointment of officers is in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation"

"would not only vary essentially the existing balance of the power but expose the Executive, occasionally, to a total inaction, and at all times to delays fatal to the due execution of the laws."

I mention such contingencies as this not for the purpose of saying that if they occur they are not to be met in a manly and a patriotic spirit, but for the purpose of invoking my friends in this body to avoid, if it is possible to avoid, any dissension among ourselves. I should fear that while as I think no practical good of any appreciable extent, except perhaps in a party sense, will be accomplished by such an amendment as my friend from Illinois proposes, infinite mischief may be the consequence of our holding in the presence of the world divided councils. Eleven States of the Union are now that time led them to abandon the contest. not represented, and as far as Congress and Now we are about to renew it. My friend the presidential election are concerned, not to from Illinois says that that is not the purpose be represented until after the next presidential of the amendment, and yet he cannot help sayelection if the report made from the committeeing that his very object is to deprive the Pres

And the more mature reflection of the great and patriotic men who adorned this body at

when that question was originally decided in this Chamber, it was under the Administration of George Washington, and by the casting vote of the Vice President of that day, John Adams; and there is reason to believe that when the Senate at that time abdicated its power to interfere in removals, it was governed as much by its great deference for George Washington as it was by any constitutional opinion that it had not the power.

However, I merely refer to these matters in

order to put them out of the discussion; they have nothing to do with it; and this brings me to the precise proposition before the Senate. In order that I may make no mistake in stating it, I will read its precise language:

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.

The proposition is very simple; it needs no commentary or no explanation. All familiar with public offices know that there are unquestionably abuses that have occurred in the executive department from the habit, after the adjournment of the Senate, of filling vacancies which had existed during the session of the Senate but which the Senate had chosen not to fill. Is Congress wrong if it undertakes to provide by legislation that in such cases the party nominated shall not be entitled to any salary or compensation until he is afterward confirmed by the Senate? It may be, as the Senator from Maryland suggests, that we may not interfere with the power of removal; but there is one power which Congress has-and the Senate is a part of Congress-and that is the power over the purse strings; and all that this proposition undertakes to do is to exercise power over the purse strings in certain cases, so as to impose a check, a constitutional check, which recent events show ought to be imposed upon the Executive. The proposition is so simple that it hardly justifies argument, and I will not take any further time about it."

Mr. TRUMBULL. The Senator from Maryland is mistaken in supposing that this is a measure hostile to the Executive of the United States. It is an amendment intended to carry out what I conceive to be clearly the constitational authority of Congress and to prevent a practice which has grown up of making appointments to office without consulting the Senate. The Senator from Maryland remarked the other day, very properly, that if the practice were to prevail that the President should fill up vacancies during the recess to continue until the end of the next session of the Senate, and then, without nominating anybody to the Senate during its session who could obtain a confirmation, were again after the adjournment of the Senate to make a new appointment to continue to the end of the then next session, he could in this way continue to exercise the appointing power without consulting the Senate at all. The Senator admitted that this would be a violation of the spirit of the Constitution. This is no new idea in this body, nor is it aimed at the present Executive of the United States. Congress had occasion more than three years ago to pass an act upon this very subject. At that time persons were being appointed to office in this same way, without consulting the Senate. What did Congress do? It passed an act providing

"That no money shall be paid from the Treasury of the United States to any person acting or assuming to act as an officer, civil, military, or naval, as salary in any office which office is not authorized by some previously existing law, unless where such office shall be subsequently sanctioned by law; nor shall any money be paid out of the Treasury as salary to any person appointed during the recess of the Senate to fill a vacancy in any existing office which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate until such appointee shall have been confirmed by the Senate."

We provided more than three years ago, on the 9th of February, 1863, that in all cases where a vacancy existed which might have been filled by and with the advice and consent of the Senate while it was in session, if the President afterward undertook to fill that vacancy, the appointee should receive no salary until he was confirmed by the Senate. That is one case which is covered by the pending amendment. This amendment, however, goes a little further than the law of 1863, but not very much further. What is there in it? A practice has grown up, not under the present Executive

more than under other Executives, of filling offices, as I think, in violation of the spirit of the Constitution, he doing it himself without consulting the Senate when it is practicable to consult the Senate. We tried to check this in 1863. Now, the provision that is offered is simply that if a person is placed in office under circumstances where it would have been practicable to have the advice and consent of the Senate without their advice and consent, then that person shall not be paid until the Senate consents to his appointment. When the Senate does consent he receives pay from the beginning. If the Senate of the United States were to adjourn on the 1st day of May, tomorrow, and a person were appointed by the President to an office which is vacant to-day, he could not under this provision receive any salary until the Senate met again next December and confirmed him; and why? Because the President ought, under the Constitution, to have sent us the name of the person to fill that office while we were here and to have had our advice and consent to his appointment. If he will not do that, the appointee must wait until the Senate convenes and gives its sanction to the appointment, and then he will receive his pay. There is no violation of any constitutional provision in doing this. But it is said that an officer may misbehave and the President ought to have authority to remove him. He may in using the public money during the recess of the Senate be guilty of some malfeasance, and he ought to be turned out. This provision does not interfere with that. Let the Presi dent suspend him and turn him out; let him also, if you please, designate some other person to fill the office until the Senate meets; and all there is of it is that until that other person is confirmed he will not be paid; but when he is confirmed he will be paid from the beginning. Is there any hardship in it? It has been suggested by some that the amendment might be amended in that respect so as to provide that in case of a removal for cause, to be reported to the Senate when it assembled, the appointee should receive pay from the time of the appointment. There perhaps would be no very good objection to an amendment of that kind, though I do not deem it essential or necessary, for I think there would be no sort of difficulty in finding good men to take any office and run the hazard of their confirmation by the Senate when they were appointed because the incumbent was unfit to hold the office. There would be no hesitation on the part of the Senate in confirming a person appointed under such circumstances and allowing him his pay. He would run no hazard in taking the office; but if without cause, if simply to put into office a partisan for party purposes and to the detriment of the public service, a removal is made, it is very questionable whether the appointee could or should be confirmed or even receive any compensation. Where the removal was for cause there would be no difficulty.

That is all there is of this amendment. It is no new provision, no attack upon the Executive, and I do not think it is likely to occasion war with Austria. [Laughter.] I do not myself think that we should be diverted from proper legislation by getting up any alarm of that kind. The withdrawal of our minister from Vienna or the withdrawal of the Austrian minister from Washington I do not think should prevent proper legislation on a subject of this character, and I really do not know what it has to do with the particular provision before the Senate.

is already covered by the act which I have read and going a very little further, so as to embrace appointments to vacancies which are created during the recess of the Senate. I trust, sir, that the amendment will receive the sanction of the Senate.

Mr. SHERMAN. Mr. President, I wish I could see this matter as clearly, and perceive the path of duty as easily as my friend from Massachusetts and my friend from Illinois. I should like very much to promote the manifest object of the amendment, to prevent removals during the recess for political reasons. The Constitution provides for two classes of ap: pointments: one made during the session of the Senate, which are of no validity until they are sent to the Senate and confirmed. They are the classes of appointments referred to by the law of 1863, a law that I remember very well, and which grew out of abuse by the Executive of the constitutional power to appoint to office. Where a vacancy occurs during the session of the Senate, the appointment of the President is of no validity and has no force until it is sent to the Senate and is confirmed. No accounting officer of the Treasury would pay the salary from the time of the appointment until the confirmation, because the appointment only takes effect from the confirmation. The act of 1863 was simply declaratory of the Constitution in that respect. I presume it did not change in the slightest degree either the practice of the accounting officers or the practice of the Government itself.

But this amendment goes beyond that; it in effect declares that the President of the United States shall not remove anybody from office during the vacation, except upon the penalty that the successor shall get no pay unless at the pleasure of the Senate; that the officer who may be appointed by the President in case of a removal during the recess of the Senate, shall perform the duties of his office without pay until the Senate confirms him, and in case the Senate refuses to confirm him that he shall discharge the duties of his office without pay at all. The Constitution provides that "the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.' Now, let me take a case, which I submit to the chairman of the Judiciary Committee: suppose that after the adjournment an officer of the Government should become a defaulter, and should be removed for defalcation, or for crime, and some one else should be appointed in his place. That person thus appointed would be a legal officer of the Government, just as much so as the Senator from Illinois; just as much so as I am, just as much so as any officer of the Government can be. Does he propose to say that this officer shall not receive any pay whatever until the Senate has confirmed the appointment? Suppose the confirmation is refused by the Senate: does the Senator mean to say that officer shall receive no pay, although thus confessedly legally appointed, unless the Senate confirm him? The Constitution declares that this appointment made during the vacation is a legal, valid appointment which shall last until the close of the following session of the Senate. The officer is just as much an officer when he takes the oath of office under that appointment as he would be after the confirmation of the Senate in case he had been appointed during the session of the Senate. Do we say that we will not pay an officer for his services during the time he confessedly holds his office legally. That is the effect of the amendment.

Mr. CLARK. That is excluded, as I understand.

Mr. SHERMAN. No, sir. I ask the Sen

I cannot see, therefore, Mr. President, any objection to the amendment. It seems to me it involves no constitutional principle whatever. All there is of it is that it will have a tendency to correct a practice which has been indulgedator from Illinois if that is not the legal effect in without any design, probably, on the part of former Presidents, and which I think ought to be corrected. I think the tendency of the act of 1863 was to correct a practice which was then growing up. It attacked it. This is another provision in the same direction covering what

of the proposition. I should like to have him state whether the effect of the proposition is not as I state. A removal occurs for cause, say for defalcation, during the recess; the vacancy occurs by removal for some good cause, a cause that he concedes to be god,

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