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CONGRESS, UNITED STATES. 



fore follow that without legislation lie can re- 

 move and appoint in vacation? Why, sir, we 

 confer upon the President this power to appoint 

 officers by creating the office. We establish a 

 new department of the Government; we in- 

 crease the number of judges; we establish a 

 judicial district ; and how does the President get 

 authority to appoint a judge or a marshal or an 

 attorney ? He gets it in pursuance of the law 

 that creates the office ; it is in pursuance of an 

 act of Congress that he gets the power to make 

 the appointments at all. 



"Just so in regard to the removal and ap- 

 pointment of incumbents in office. We may 

 provide by a statute that for cause he may re- 

 move a man from office during the vacation and 

 substitute another in his place, and submit to 

 the Senate when the Senate convenes the ques- 

 tion of whether they will advise and consent to 

 the new appointment. Congress may go further. 

 They may authorize the President to appoint 

 and remove inferior officers without asking the 

 advice and consent of the Senate, and we have 

 often done so. The Constitution expressly 

 authorizes Congress by law to invest the ap- 

 pointment of inferior officers either in the Pres- 

 ident alone, or in the judges of the courts, or in 

 any of the heads of departments ; and in pur- 

 suance of this authority the appointments of 

 various minor officers all over the country have 

 been vested in the President alone and heads 

 of departments. Now, would it not be com- 

 petent to provide in one of these statutes, when 

 we give him the power of appointment without 

 consulting us, that he should not have the power 

 of removal without cause ? 



Mr. Sherman, of Ohio, said : " We ought 

 to meet at the outset every effort to attach 

 these political or disputed problems to an ap- 

 propriation bill. There is no excuse, let me 

 say to my fellow-Senators, for this proposi- 

 tion at this particular time, because we in Con- 

 gress, representing the great Union party of the 

 United States, supported, as I believe we are, 

 by the great mass of the people, probably ninety- 

 nine out of every hundred of those who sent us 

 here, have the power to pass the laws we think 

 necessary, without attaching them as qualifica- 

 tions to an appropriation bill. We can pass 

 any law which meets the sanction of our politi- 

 cal party, by the requisite vote, either of a 

 majority, or, in case of a clear proposition, by a 

 two-thirds vote. There is, therefore, no occa- 

 sion, in order to accomplish any political object, 

 to attach this as a condition to an appropria- 

 tion bill. If, however, only a majority of both 

 Houses of Congress could agree upon any bill 

 that might be proposed, that shows that we 

 ought not to attach that opinion of a majority 

 of each House to an appropriation bill, because 

 we should not force upon the President any 

 provision of law against his deliberate judgment 

 unless we have the power to do it by the con- 

 stitutional vote of two-thirds of both Houses. 

 We should not make the public necessities which 

 demand that certain departments of the Gov- 



ernment be supplied with public funds a reason 

 for forcing upon the President a provision that 

 might not meet his sanction if it stood alone. 

 It is impossible, it seems to me, to combat this 

 plain proposition. 



"But, sir, beyond that and -upon this point 

 alone I rested my argument before I was 

 willing to meet the object embraced by the 

 amendment of the Senator from Missouri ; but 

 upon an examination it was found, and I think 

 very clearly proved, that the law of 1863 met 

 all the difficulty that he proposed to meet, and 

 that was an attempt on the part of the Presi- 

 dent to fill offices the vacancies in which occur 

 during the session of the Senate. The law of 

 1863 provides for that case. If the President 

 after the adjournment of the Senate under- 

 takes to fill an office the vacancy in which 

 occurred during the session of the Senate, he 

 does it without the authority of the Constitu- 

 tion. He has no power to fill vacancies which 

 occur during the session of the Senate, except 

 by and with the advice and consent of the 

 Senate ; and if he attempts in violation of the 

 Constitution to exercise a power not conferred 

 by the Constitution, we are then perfectly jus- 

 tified in withholding appropriations; indeed, 

 we should not do our duty unless we did with- 

 hold the appropriations, because if we should 

 pay officers thus illegally appointed we should 

 consent to a violation of the Constitution on 

 his part. But now in the case provided for 

 by this amendment there is no denial of the 

 power of removal, but a denial of the right of 

 the officer to receive his money. The Constitu- 

 tion provides for two classes of appointments : 

 one class where a vacancy occurs during the 

 session of the Senate ; it must be filled by and 

 with the advice and consent of the Senate; 

 the other is the case of a vacancy which occurs 

 during a recess of the Senate, and then the 

 President from the nature of things and by the 

 express provision of the Constitution has the 

 power of appointing a man to office to fill that 

 vacancy, but the vacancy is only filled by such 

 an appointment until the end of the following 

 session of the Senate. The officer thus ap- 

 pointed by the President is a legal officer. As 

 I said the other day, there is no power conferred 

 by the Constitution upon the President to re- 

 move any one from office. That power is only 

 inferential. That power may be regulated by 

 law. That power is not limited or restrained 

 in the least by the amendment of the Senator 

 from Illinois. The amendment does not say 

 that a Union man shall not be removed from 

 office and a rebel put in. That seems to be 

 the proposition he debated ; but that is not the 

 proposition he has submitted to us. He says 

 that no man shall be removed from office 

 except for such and such causes ; that is, a 

 man who during this whole war has en- 

 joyed the honors and emoluments of office 

 shall not be turned out and a loyal Union 

 soldier put in. That is one effect of his amend- 

 ment." 



