190 



CONGKESS, UNITED STATES. 



without the consent of the Senate. The two 

 must act together. 



''This subject has undergone very full con- 

 sideration heretofore. The committee of detail 

 in forming the Constitution had it before them. 

 They reported to the Convention that ambas- 

 sadors and judges should be appointed solely by 

 the Senate, and that the other officers should 

 be appointed solely by the Executive ; but that 

 report of the committee of detail was rejected, 

 and after mature discussion the Constitution 

 was made as it is, making it requisite that the 

 two branches of the Government, the Senate 

 and the Executive, should both concur in an ap- 

 pointment. 



"Now, what does this bill provide against? 

 The President has the power, by making ap- 

 pointments in the recess and then by not send- 

 ing those nominations to the Senate, to continue 

 session after session the same person in office, 

 actually abrogating the Constitution ; actually 

 making the approval of the Senate of no im- 

 portance whatever in the appointments. At- 

 tention has been called to the books on this sub- 

 ject, and the advocates of this measure have 

 been told that they have not properly examined 

 the authorities. The other day the President 

 commended to the Senate a long extract from 

 Mr. Justice Story against usurpation on the 

 part of the Legislature. Consequently he ap- 

 proves of the writings of that distinguished 

 jurist. Now, I desire to read to the Senate 

 what that authority says on this very subject : 



The power of appointment, one of the most im- 

 portant and delicate in a republican government " 



Mr. Cowan : " What book does the honorable 

 Senator read from ? " 



Mr. Frelinghuysen : " I read from Story's Com- 

 mentaries on the Constitution ; not his extended 

 Commentaries, but a work based upon them 

 and prepared for colleges." 



Mr. Cowan, of Pennsylvania, said : " Mr. 

 President, I have a very high respect, not only 

 for the memory of Judge Story, but also for his. 

 teachings, and I have read the same argument 

 which has been quoted by the honorable Sena- 

 tor from New Jersey, and I think I have felt 

 its force. But the honorable Senator should 

 have informed us at the same time that the 

 question has been decided the other way. I 

 admit that a very strong and very forcible ar- 

 gument can be made upon this side of the ques- 

 tion ; but the difficulty about it is, that it has 

 been for seventy-five years the uniform rule of 

 the Government of the United States to allow 

 the President this power, and as I think from 

 the very necessity of the thing, because it has 

 not been answered yet: suppose the President 

 and Senate disagree, what is to become of the 

 office during the recess ? For the first time in 

 our history this body has been declared in per- 

 manent session. Heretofore there has been a 

 vacancy from the 4th of March to the 1st of 

 December, and during that time there was 

 no Senate to consent and advise to the nomina- 

 tions of the President. Then you meet the al- 



ternative of either having no officers at all, the 

 Government not administered at all in that par- 

 ticular, or you must allow the President this 

 power. The power heretofore has never been 

 deemed dangerous. The power may have been 

 annoying, just as the power is now annoying 

 to a dominant party, who cannot have them- 

 selves all control of the Offices. But why should 

 the President appoint bad men to office? He 

 may not appoint a member of your party ; but 

 he is interested as much as anybody can be to 

 appoint a member of his own party who will 

 creditably execute and perform the duties of 

 the office, and that has been the safety of the 

 country always. 



" But if you proceed upon the supposition that 

 the President is a traitor, that the President is 

 a destructionist, that he is given over body and 

 soul to the devil, and that all his adherents and 

 .all those who believe as he does are likewise 

 given over, what then? Then, of course, you 

 must end this Government in order to correct 

 that mischief. If, however, honorable Sena- 

 tors and everybody else were to come back to 

 the common-sense view of this matter, rid 

 themselves of their prejudices, rid themselves 

 of their passions, and come to the conclusion 

 to be patient and abide the regular normal 

 working of our institutions, there would be no 

 difficulty. But it is from this war of factions, 

 roused passions, terrible prejudices, that the 

 danger to all free governments has come. 

 Parties cease to be parties ; parties become fac- 

 tions ; and over the ruins of the very fabric they 

 intend to save both have occasion to lament. 



" "What will you gain by this crusade upon the 

 President ? What do you expect to achieve by 

 curtailing him of his power ? Do you pretend 

 that he and the men who advocate the view he 

 takes of things are not as honest as you are ; 

 that they have not the same stake in the coun- 

 try that you have ? Do you not suppose that 

 he and his friends have the same care of their 

 reputation you have ; that they desire the safety, 

 and the success, and the glory of the country 

 as much as you do ? They may differ with you 

 as to your means of obtaining this ; but is it not 

 possible that men may differ and differ hon- 

 estly?" 



Mr. Howe, of Wisconsin, moved to amend the 

 fourth line of the third section, by striking out 

 the words " expiration of term of office or other 

 lawful cause." This was agreed, to. 



Mr. Williams, of Oregon, said : " Mr. Presi- 

 dent, I think that Congress has the constitu- 

 tional power to pass this bill. No argument 

 need be made as to its necessity, for that is ob- 

 vious and generally admitted. Whenever doubts 

 arise as to the meaning and effect of any pro- 

 vision of the Constitution, as they are supposed 

 to arise in this case, it is customary to refer to 

 the proceedings of the Convention by which 

 the Constitution was formed to resolve or re- 

 move those doubts. Following that custom 

 upon this occasion, I find that in the proceed- 

 ings and discussions of that Convention there 



