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Oct. 3, 1837.)
(H. OF R.
Mississippi, contesting their seats. The day upon which knowledged members of their choice out of this hall for the Congress was to meet was notorious, known probably to remainder of this extra session. Whether we may remain every voter in the State; and yet no voice is heard from here for a longer or shorter period of time, makes no difthat quarter, casting a suspicion upon the integrity of the ference in the argument. It is certain that we shall have election. A member of this House, actuated apparently to decide some important questions which will be closely by a greater zeal for the preservation of the elective fran- contested, and the absence of two members may decide the chise and laws of Mississippi than was selt by any citizen fate of measures to which the whole country is looking of that State, rises an interposes an objection to those two with deep anxiety ; and, besides, the question of time can gentlemen taking their seats; and that, too, before the facts have no bearing upon the point which I am now considerin the case were known, or could be ascertained by any ing. I am endeavoring to show that, inasmuch as it is adimpartial tribunal, owing to the imperfect organization of mitted, upon all hands, that the people of Mississippi have the House. The people of Mississippi were supposed to clearly shown their wish to be represented here during this be so indifferent to their own rights, or so incapable of -as- extra session, and those who sustain the report of the serting them, that it became necessary to assume a guard- minority, which sets the election aside, are, of course, for ianship over them to protect their injured innocence. The ejecting the sitting members forthwith, it will not do for House, however, rejected this monstrous interference, and them to rest the justification of their proceeding upon tho wisely reserved the consideration of all questions that might ground that they are anxious to carry into effect the will grow out of the election, until the facts could be settled by of that State. They are committing the very act which a committee. The business of the session went on. Still they profess to be anxious to avoid. Whilst they are urgno competitors for the seats appeared. No petition was ing upon us their extreme care to follow the popular will, presented contesting the election. The people whom these they are forcibly divorcing the people (as the use of this iwo gentlemen claimed to represent, seemed to be satisfied, word finds its way into every subject at this session) from as far as silence can be construed into acquiescence; and, the object of their choice; and, as gentle dissuasives will in these days of freedom of speech, men are not apt to re- not succeed, they apply the figurative wedge and sledgemain silent where they think there is cause of complaint. hammer violently to separate those who are living volun. At the request of these members themselves, the Commit- tarily in close alliance. Sir, let the supporters of the tee of Elections were directed to look into the matter, and minority report rest their arguments upon a refined and up to this moment of discussing the two reports which they technical construction of the constitution, but let them not have given us, not even a balf-stifled hum has been heard assume the untenable position that they are acting in conin Mississippi expressive of discontent with the election : formity with the will of the people of Mississippi. and yet this spotaneous guardianship continues to be ex- But it is said that although it is admitted that an elecercised for the protection of the rights of those people, and tion was held for the present extra session, yet there is no we are urged, out of great tenderness towards them, to de- evidence that there was any intention on the part of the clare an election void which they have inade, lest, forsooth, people that the term of service of the sitting members should we may violate their will by confirming it. Do the gen- continue any longer than that time. I grant that it is not tlemen who thus argue feel with Bassanio, when he is ad- easy to ascertain how this is; but still there is enough from dressing Portia, that they are inclined
which to draw a satisfactory conclusion. One of the sitting " To do a great righy, do a little wrong,
members has publicly declared, in his place, upon his reAnd curb this cruel devil of his will ?”
sponsibility as a member of the House, that, during the Are they dissatisfied with the manner in which the election canvass, no other opinion was expressed from any quarter has resulted, and would gladly seize upon any reason for than that the election was for members of the 25th Contrying it over again? I will not suppose it, but it is a gress; that the candidates and voters universally so consingular coincidence that every member of this House who sidered it. We know, also, that the presses upon both has addressed it upon this subject, who is of different poli. sides spoke of it in the same way; and we have a still tics from the two members returned from Mississippi, is in stronger evidence of what the public opinion was, and is, favor of setting aside their election. I can readily under- / in the fact that at this moment there is only a single canstand how there should be a difference of opinion upon the didate in the field for the November election ; and his is constitutional point involved in the case, upon which I rather a continuance of the former canvass than the instimean to touch presently, but I cannot consent that they tution of a fresh one. If the general belief was that tho should place the vindication of their course upon a desiro sitting members would hold their seats only until Novemto carry out the popular will. Suppose, sir, that we adopt ber, it is impossible that such a degree of languor should the resolution of the minority of the committee and declare now prevail. On the contrary, the parties who fought so the election void ; and suppose that the people of Missis- fiercely in August would have already buckled on their sippi could interrogate us why we had done so. If we armor for another battle in November, more particularly answered that we had paid respect to their will, they would when the victors were enjoying, not their spoils, but their reply that their will was to be represented at this important well earned honors, at this distance from the theatre of extra session, and that we knew it; for we do know it, and action, and when their absence must necessarily paralyze, all admit it. If they pressed the inquiry still further, and in some degree, the efforts of their political friends. I rely asked why we had destroyed the political existence of those upon these evidences, slight as they may be regarded, with to whom they had shown themselves wedded, would it do the more confidence, as no evidence at all is offered 10 to reply as Richard does to Lady Anne, when she upbraids maintain the opposite position, except the mere proclamahim with destroying her spouse, that he " did it to help tion of the Governor, the effect of which upon the formaher to a better husband ?". Are gentlemen such devoted tion of public opinion is nothing but conjecture. In a'l friends and lovers of the people of Mississippi, that they cases of contested election, tbis House has very properly would put not of the way the object of their choice, in endeavored to ascertain what the intentions of the people order to give them a chance of making a better selection ? were, and has disregarded technical objections as to mere I think that they would not be as placable as was the lady. forms. If the two questions of “what did the people mean They would be apt to reject the doubtful friendship of their to do," and “what have they done,” can be satisfactorily self-appointed guardians, who, from a nervous apprehen- answered, the decisions of the House have invariably corsion lest those people may be injured in their rights, at responded with those intentions and acts. In this case, once disfranchise them; and, from a morhvid sensitiveness therefore, we may sum up the points thus : if we adopt lest their free suffrage may be endangered, turn the ac. 'the report of the majority, we place the sitting members in
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(Oct. 3, 1837.
their seats for the extra session, which the people of Mis- of a term of service, the generic word equally includes it; sissippi clearly intended, and confirm them in their seats and those who fraided the constitution could not, by the for the residue of the Congress, about which some doubt most assiduous study, have discovered a word more commay exist as to the intentions of the people, and, of course, prehensive in its signification than the precise one which it becomes a question of evidence. If, on the other hand, they adopted. I leave this branch of the argument where we adopt the report of the minority, we eject these mem- that honorable gentleman placed it, deeming it impossible bers from their seats forthwith, which the people of Mis- either to make it noore clear or refute it. sissippi clearly and admittedly did not intend, and put those But, it is said, also, that there was no "vacancy" in the people to the trouble of another election, respecting their representation from Mississippi ; that a vacancy can take desire for which great doubt must also exist, as it too is a place only when it member elect dies, or resigns, or requestion of evidence. In the former course we are per- moves, and that it cannot be created by the expiration of a fectly certain of conforming to their will as to a part of our term of service. For this limitation of the meaning of the decision, and in the latter we are equally certain that we word, no grammatical authority is adduced; but it rests violate it. If, therefore, we are guided solely by a regard upon the arbitrary assertion of those who so construe it. I for their will, can we hesitato which to adopt ?
should rather define “ vacancy" to mean the absence of But I concede that there is something more in this case something which ought to be there. - The limited meanthan the single point which I have been considering. My ing which is given to it is contrary to common sense ; and object hitherto has been to show that the ground assumed indeed, no grammatical definition of it has been attemptby the friends of the minority resolution will not bear themed to be given. All that is said is, that the case is not out as far as that point is concerned. Let us see whether included within it. Let us suppose that the resolution any other position is stronger.
of the minority should be passed to-day, and that, on toThe Legislature of Mississippi, by some unaccountable morrow, when no person was in the occupancy of the oversight, omitted to vest the Governor with the power chairs which are now so worthily filled by the two gentle. which all other Governors possess under the laws of their men from Mississippi, an inquirer should ask of the gentle. respective States, of ordering an election for members of man from Ohiv, for example, where was the delegation Congress, where a special session may be called for a day from Mississippi ; he would be bound to reply, as he has anterior to that designated in the law of the State, as the said in his argument, there is no “ vacancy" in the repreone on which the regular election is to be biennially held. sentation from that State. But the incredulous interrogaThe Governor thought that he found an authority for so tor would proceed; there is nobody in those chairs, and doing in the constitution of the United States, but thought they are appropriated to the use that delegation. Still also that his power under that instrument only extended to my learned friend would be obliged to insist upon it, that filling up the vacancy until the recurrence of the election there was no vacancy in that representation. It is true, he at the usual time, and issued his proclamation and writ would say, that Mississippi has no members upon this floor accordingly. As all the arguments of the friends of the in those chairs, or any where else ; but I tell you there is minority resolution deny the existence of any power in the no vacancy, because she elected members to the last ConGovernor, whether he had issued his writs for the entire gress, and has not elected any to this; therefore, there is 25th Congress or only a portion of it, I shall not consume no vacancy
Do you not perceive, sir, that this is the intime in examining the precise effect of the writ which he evitable result of the argument upon the opposite side ? actually did issue; because, by contesting his authority to Because, if there was no vacancy when the Governor is. order an election at all, the opposite side appear to attach sued his proclamation, there is none now; and yet, see no importance to the mode in which he exercised his how impossible it is to convince the eyes of the truth of the power, and therefore seem to acquiesce in the conclusion argument addressed to the ears. I say, therefore, that this to which the majority of the committee come in their re- construction of the constitution is contrary to common port, of rejecting a part of his writ as surplusage. The sense, however strongly it may be supported by technicaliquestion is, then, whether the Governor had any authority ties, and I am no advocate for adopting refined and scholas. to order an election.
tic subtleties, as the proper means of interpreting an instruIn the second section of the first article of the constitu- ment which was intended to be understood by plain men tion of the United States is found the clause which is the in regulating the business of life. fruitful theme of this prolonged debate :
I wish, however, to refer you to the journal of the con" When vacancies happen in the representation from vention which framed the constitution, in order to show any State, the Executive authority thereof shall issue writs that the meaning which we now give to the clause which of election to fill such vacancies."
I have quoted, is the one which they attached to it, when It is agreed on all hands that this clause is not a dead it received the assent of that distinguished body. But beletter, but that it confers some power of some kind upon fore I du this, let me refer very briefly to the opinions of the Governors of States; but it is argued that the power ex- two gentlemen of acknowledged talents who have, at differtends only to issuing writs of election to fill vacancies which ent periods, filled the office of Attorney General, as there “ happen," and much subtle refinement is resorted to in is an entire harmony between the conclusions which they order to draw the line of distinction between those which do have drawn from a cautious inspection of the constitution and those which do not “ happen." And it is further said as it is written, and the design, of those who made it, as that the term “ vacancy” is not applicable to the condition manifested by the history of their proceedings. I propose of the representation from a State when the period of service to touch very summarily upon these opinions, because other of former members has expired, and before the election of gentlemen have examined them more fully, and I desire to their successors. With regard to the first position, I will avoid the repetition of what has been already, and no doubt not repeat the conclusive lexicography of the gentleman belter, said. In October, 1823, and July, 1832, cases ocfrom Virginia, (Mr. PENXYBACKER,] but content myself curred in the administration of the Executive authority, with saying that it certainly has not been, or I believe at- which drew from those who occupied, at those times, the tempted to be, answered. If the meaning of words is to situation of Attorney General of the United States, elaborbe judged of by authority, the books wbich he has pro- ate opinions upon the construction of that part of the conduced conclusively show that the word “happen" expres- stitution which empowers the President "to fill up all vases a genus of which “chance” is only a species. No cancies that may happen during the recess of the Senate." matter what may be the cause of the vacancy, whether it It will at once be perceived that there is a strong analogy, has occurred hy “chance” or “ design,” or the expiration ' although not a perfect identity, between the meaning of Ост. 3, 1837.]
[II. OF R.
this word “happen," in this clause of the constitution, be said to “ happen," it not being the work of chance or and the one which we are considering; because, under accident. I find, on looking over the journal, that when both, the argument is, that a case where there is no incum- the convention was employed in settling the principle bent in office, owing to the expiration of a term, is not in which they meant to establish, on the 6th of August, they cluded within either clause. But Mr. Wirt says, “ The expressed it in these words: substantial purpose of the constitution was to keep these * Vacancies in the House of Representatives shall be offices filled, and powers adequate to this purpose were in-. supplied by writs of election from the Executive authority tended to be conveyed. But if the President (and the re- of the States in the representation from which they shall mark is equally applicable to the Governor of a State) shall happen.”—Elliot's Debates on Federal Constilution, vol. not have the power to fill a vacancy thus circumstanced, 1, the powers are inadequate to the purpose, and the sub- Every one must see at once that the only difference be. stance of the constitution will be sacrificed to a dubious tween these two sentences is, that the latter excludes the construction of its letter."
construction which the friends of the minority report wish He comes to the conclusion, that if the vacancy is found to apply to the former, and that this vexed article is made to exist, the constitutional power of providing for its being to express the very idea which Mr. Wirt and Mr. Taney filled is immediately applicable, and adds :
contended should be applied to another clause upon the “ This seems to me the only construction of the consti- same subject, coinciding precisely with the interpretation tution which is compatible with its spirit, reason, and pur- which those who think with me allege should be placed pose, while, at the same time, it offers no violence to its upon it. Without resorting to a strict grammatical analysis, language ; and these, I think, are the governing points to every unpredjudiced mind would agree at once, as it seems which all sound construction looks."
to me, that the original draught meant to provide for the Mr. Taney, in 1832, concurred in opinion with his pre- tilling up of all vacancies, no matter from what cause, or decessor, without knowing, however, that Mr. Wirt had when they might occur; and this inference is impregnably expressed it, because it was not until he had prepared his fortified by a closer examination. The word "when," which own, that an examination into the files of the office resulted is considered as drawing after it a limitation of power, by in the discovery that Mr. Wirt had been called upon by admitting only a certain class of cases, and excluding oththe then President for an opinion in a similar case. ers, is not found in the first draught; and the word “ hapMr. Taney says:
pen" is detached from the important noun “vacancies,” “ The words used in the constitution do not, I think, whose comprehensive meaning it is said to control, and by any tair construction, require a distinction to be taken. made to assume an humble and merely an explanatory duty. It was intended to provide for those vacancies wbich might I repeat that the idea intended to be advanced by the framers arise from accident, and the contingencies to which human of the constitution is found in the original draught; for I affairs must always be liable. And if it falls out that, from find that the committee of five were appointed " to revise death, inadvertence, or mistake, an office required by law the style of, and arrange, the articles agreed to by the to be filled, is, in the recess, found to be 'vacant, then a House;" and I cannot find that, in a single instance, they vacancy has happened in the recess, and the President may departed from this secondary duty. No fault appears to fill it. This appears to be the common sense and natural have been found with them on account of any aberration import of the words used. They mean the same thing as from the principles which the convention had previously if the constitution had said if there happen to be any va- adopted; and, in fact, they had only to paint and furnish cancies during the recess.'”
the House which had been built, without interfering with I propose now to show that the frainers of the constitu- the order of its architecture. I hold that, as statesmen, we tion intended to attach this meaning to the kindred clause are not only at liberty, but bound, to follow the intentions which is to govern our decision in the case before us, and of those who prepared the constitution, and think that they this intention is to be drawn from the proceedings of the are sufficiently manifest from the authority which I have convention, which I examined for the satisfaction of my adduced. own judgment. If it had not been for the purpose of Whilst upon the subject of authority, I beg leave to refer bringing this point before the House, I should not have in- to one quoted by the honorable gentleman from Ohio, (Mr. terfered in the debate, as I stated in the outset of my remarks; Mason,) who has read an extract from Judge Story's but, having once taken the field, I must go through the Commentaries on the Constitution. The part upon which campaign, skirmishing with all those adversaries whom I he relied was the following: may “happen to encounter."
“ By 'vacancies' they understood to be meant vacancies The convention which framed the constitution pursued occurring from death, resignation, promotion, or removal. the following judicious mode of proceeding. They first | The word “happen' had relation to some casualty not prosettled general principles in Committee of the whole, and vided for by law."-Story's Commentaries, vol. 3, page then appointed five of their body to revise the style of the 411, book 3, section 1,553. articles agreed upon, but without alteration of the meaning, I have too much respect for the learned judge whose and to arrange them under proper heads. This was the opinion is thus brought before us, to pass it over without extent of their duty. The committee consisted of Mr. notice. But the honorable gentlenian inade only an exJohnston, Mr. Hamilton, Mr. G. Morris, Mr. Madison, and tract from an entire passage, which, when considered as a Mr. King, who reported the revised draught on the 12th whole, will be found not to hear upon the question before of September, 1787, which contained the clause in the first He violently tore off a limb from the body; and I beg article, word for word, as we now find it in the constitu- leave to replace and bandage it up, binding the bleeding tion, viz:
fracture as well as my poor surgery will periit, in order “When vacancies happen in the representation from any to present to view the unmutilated subject in a perfect form. State, the Executive authority thereof shall issue writs of The entire passage is this : election to fill such vacancies."
" The language of the clause is, that the President shall The argument of the friends of the minority report of the have power to fill up 'vacancies' that may happen during Committee of Elections is, that this is a conditional grant the recess of the Senate. In 1813, President Madison apof power or imposition of duty upon the Executive author- pointed and commissioned ministers to negotiate the trealy ity of a State, taking effect only when vacancies “hap- of peace of Ghent during the recess of the Senate; and a pen," and not applying to a case where a vacancy is creat- question was made whether he had a constitutional authored by the expiration of a term of service, as it cannot then ity so to do, there being no "vacancy' of any existing of
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(Oct. 3, 1837.
fice, but this being the creation of a new office. The Sen - the Senate, two months at least must have been lost beale, at their next session, are said to have entered a protest | fore that body could be convened, for the single purpose of against such an exercise of power by the Executive. On giving their advice and consent to the appointment. The a subsequent occasion, (April 20, 1822,) the Senate seem nation, then, would have been two months suffering all distinctly to have held that the President could not create the horrors and desolations of a cruel war for want of an the office of minister, and make appointments to such an organized power to make peace. For in this, as in every office during the recess, without the consent of the Senate. question of constructive powers, we should never lose sight By 'vacancies,' ihey understood to be meant vacancies oc- of the consideration that the denial of an organized power curring from death, resignation, promotion, or removal. competent for efficient action, is a denial of the power not The word "happen' had relation to some casualty not pro- only of the functionary to exercise it, but of the nation for vided for by law. If the Senate are in session when offices whose benefit the power is to be exercised. In that case, the are created by law, which have not as yet been filled, and impotence of President Madison to appoint ministers till nominations are not then made to them by the President, the Senate could be convened, would have been, during he cannot appoint to such offices during the recess of the the same term of time, the impotence of the nation, in the Senate. In many instances, where offices are created by midst of war, to make peace. Impotence, not by the weaklaw, special power is, on this very account, given to the ness of the nation—not by the refusal of the enemy to nePresident to fill them during the recess; and it was then gotiate-but by the reglect of the nation to organize her said that in no other instances had the President filled such own institutions with powers essential to her safety, and vacant offices without the special authority of law." perhaps even to her existence.
It will be observed that Judge Story referred to what he On the 24th of May, liutle more than two months after supposed to be the opinion of the Senate upon the point the offer and acceptance of the Russian mediation, Conwhether the President could appoint to an office then crea- gress assembled, and on the 29th of May, President Madted for the first time—a question very wide of that now be- ison sent a message to the Senate announcing that comfore us. The office of a Representative from Mississippi missions had been granted during the recess of the Senate was not to be created when the Governor issued his proc- 10 Albert Gallatin, John Quincy Adams, and James A. lamation for an election. It had been created some years be- Bayard, to be, jointly and severally, Envoys Extraordinafore, when that State was admitted into the Union, and had ry and Ministers Plenipotentiary io negotiate and sign a been often filled. The point which the judge was discussing, treaty of peace with Great Britain, under the mediation of therefore, had no analogy at all to that before the House.
the Emperor of Russia; to negotiate and sign a treaty of [Mr. Mason, of Ohio, had read, in the course of his ar- commerce with Great Britain ; and the said John Quincy gument from Judge Story's Commentaries on the Consti- Adams, Albert Gallatin, and James A. Bayard, to be, jointtution of the United States, the following paragraph : ly and severally, Envoys Extraordinary and Ministers “The language of the clause is, that the President shall
Plenipotentiary to negotiate and sign a treaty of commerce have power to fill up vacancies that may happen during the with Russia, and that he nominated them to the Senate for recess of the Senate. In 1813, President Madison ap- those respective offices. pointed and commissioned ministers to negotiate the treaty On the 19th of July, 1813, the Senate rejected the nomof peace of Ghent, during the recess of the Senate; and a
ination of Albert Gallatin, on the ground that he held the question was made, whether he had a constitutional au- office of Secretary of the Treasury, and of their opinion thority so to do, there being no vacancy of any existing of- that the two offices ought not to be held by one person at fice, but this being the creation of a new office. The Sen. the same time. They advised and consented by nearly ate, at their next session, are said to have entered a protest unanimous votes to the two other nominations. against such an exercise of power by the Executive."
On the 29th of July thereafter, Mr. Gore, a member of Mr. Avams now rose, and said that he had not intended the Senate, in opposition to the then executive administrato take any part in this debate, but that the reference of tion, presented to the consideration of the Senate five resboth the gentlemen to a question in which he had been olutions, the first of which was in the following words: personally concerned, and to an erroneous statement in the “The President of the United States having, by the concommentaries of the learned and highly respectabıle judge, stitution, power to fill up all vacancies that may happen made it his duty to apprize them and the House there was during the recess of the Senate, by granting commissions in this statement an error, not of the judge, but of his infur- which shall expire at the end of their next sessionmant, whoever he may have been. The language of the “ Resolved, That, in the opinion of the Senate, no such book is “the Senate are said to have entered a protest;" by vacancy can happen in any office not before full.” whom said, the book does not state. But, by whomsoever The subsequent resolutions proceed to censure the com said, it was a mistake. No such protest was, in that case, missioning of the three negotiators to treat for peace, deever entered by the Senate.
claring that their offices had not been before filled ; that The facts of the case were these : Immediately after the they were inconstitutional without the advice and consent declaration of war between the United States and Great of the Senate. That the Senate reluctantly protested Britain, in 1812, was known at St. Petersburg, the Em- against them, and that they should be communicated, by a peror Alexander offered his mediation, for the negotiation committee of the Senate, to the President of the United of a peace between them. This proposal was made by his States. The resolutions were laid on the table without deminister, Mr. Daschkoff, to the Secretary of State, Mr. bate, and were no further acted upon at that session, which Monroe, on the 8th of March, 1813, four days after the closed on the second of August of that year. close of the session of Congress. Perhaps imagination At the next ensuing session of Congress, on the 28th of could not invent an occurrence better suited to illustrate February, 1814, Mr. Gore again presented to the considerthe importance of that provision of the constitution which ation of the Senate, in session upon executive business, gives to the President of the United States the temporary the same series of resolutions. appointment to executive offices during the recess of the They were then ordered to be printed, to be discussed Senale. Here was an opportunity providentially present with open doors, and made the order of the day for the ened for putting an end to a formidable and calamitous war. suing Monday, the 7th of March. They were accordingly The mediation of the Emperor was immediately accepted. then taken up, and, after sundry postponements, and full The appointment of a minister or ministers for conducting debate, the further consideration of them was, without call the negotiation was indispensable. If the President had for the yeas and nays, pustponed till the first Monday of no power to make that appointment during the recess of December then next. They were never after resumed,
Oct. 3, 1837.)
(H. Or R.
There was, no doubt, on that occasion, a thorough and sense in which I have always understood it, and it has searching discussion, by the Senate, of the extent of the been so understood by every President of the United rightful power of the President to fill vacancies happening States, froin Washington down. during the recess of the Senate. The question was stated It is, indeed, stated in Marshall's Life of Washington, with great address in the first resolution of Mr. Gore, as- that on one occasion, when he inclined to depute an ensuming that no vacancy could happen in an office not be- voy extraordinary to France, for a particular purpose, who fore flled. But the fallacy was in that assumption. It should be united with the actual minister, (Mr. Monroe,) was a petitio principii, or begging of the question. It is this objection was suggested, that during the recess of the not necessary to constitute a vacancy in an office, that it Senate the President can only fill up vacancies, and the should have been before filled. It would be more correct appointment of a minister when no vacancy existed might to say that the office is always vacant when it is not filled. be supposed to transcend his powers. From respect to
There was, then, no protest entered by the Senate this construction of the constitution, therefore, he recalled against the appointment during the recess of the negotia- Mr. Monroe to make a vacancy, and then appointed Gentors of peace in 1813: never was an occasion, when the eral Charles Cotesworth Pinckney to fill it. reason for the exercise of that power of temporary appoint-Sir
, it was the most unfortunate measure of his adminment was more forcible, and the appointment itself more istration. The suggestion was not of his own mind. That indispensably necessary. Far from entering a protest, the was, to have joined Mr. Monroe in the negotiations with Senate, after long, ample, and repeated deliberation, dis- General Pinckney, which would, in all probability, have carded the proposal for it by postponement to the first day saved us from a quasi war with France, and would havo of another session.
been kind and generous to Mr. Monroe. The substituted There is no doubt that the word happens, like multi- expedient was not so. A stronger illustration of the intudes of others, we might almost say all the words of every correctness of that construction could scarcely be given. language, has various meanings and modifications of mean- President Washington did not respect it in other cases ing. It is sometimes used to denote incident, and some- when it was not suggested to him as an objection. He times accident. It sometimes, perhaps generally in collo- made several original appointments in the recess of the quial usage, imports some indefinite agency of chance, Senate to offices existing by the laws of nations.] something fortuitous ; but men who entertain a serious Mr. Howard resumed. I am glad, sir, that my remarks conviction of religious truth believe that chance has no have drawn out this opinion from the honorable gentleman agency in the affairs of this world, that there is nothing from Massachusetts, since his opinion on the subject of vafortuitous, and that whatever happens is but the orderly cancies coincides with my own. Perhaps this interpolation disposal of events by an overruling Providence. The com- may be considered by some as the best part of my speech. mon scriptural expression synonymous with happens is, But the honorable gentleman has also, by showing that “it came to pass ;” and perhaps the English translators of Judge Story was mistaken as to the fact upon which he the Bible used those words instead of "it happened,” for built his argument, totally demolished the fabric upon which the express purpose of excluding the possibility of an in the gentleman from Ohio (Mr. Mason) reposed in fancied ference, from the shade of casualty usually included in the security. It was swept away. meaning attached to this word, that there is any thing like [Mr. Masox explained, and contended that the remarks chance in the government of the universe. A vacancy of the gentleman from Massachusetts had not affected the therefore happens, when it comes to pass; and whether argument he had used, or the authority he had referred to.) caused by the resignation or death of an incumbent, by the Mr. HOWARD proceeded. It seems to me that if Judge expiration of the official term, or by his removal at the Story placed dependence upon an opinion of the Senate, pleasure of him from whom the appointment was received, without even expressing his own, and if it now appears that from whatever cause the vacancy proceeded, whenever it the Senate had given no such opinion, there was very little erists, it happens.
left of the authority which the gentleman quoted with such It is said in the passage qnoted from the Commentaries emphasis. This is a matter for the House to decide upon. of Judge Story, that the reason for the question made in I dismiss the subject. the Senate, whether the President had the constitutional It appears strange, at first view, that this question has right in 1813, to appoint, during the recess of that body, never arisen before ; and that now, for the first time, a power ministers to negotiate a treaty of peace, was, that there was claimed on behalf of a Governor of a State under the was no vacancy of an existing office; but that this was the federal constitution. The reason why the case has never creation of a new office. This again was a mistake. The happened before, is precisely that which most readily reoffices of public ministers of all denominations are created, conciles me to the acknowledgment of the power now. IL not by the constitution or statute laws of the United is, that all State Legislatures have, of their own accord, States, but by the laws of nations. They are recognised conferred upon their Governors this very sanie power, exas existing offices, and the mode of appointing them is pre-cept in the single instance of Mississippi, arising in this scribed by the constitution. The particular Government case, no doubt, from inadvertence and precipitate legislation. to which a minister is accredited, or the particular negotia- | There is surely no ground to fear any unpleasant result, tion with which he may be charged, forms no part of the when our decision is in exact conformity with the laws of creation of the office. The office always exists. It he. the States for forty years; when we are manifesting a benu. longs to the intercourse of peace and war between sov. tiful harmony between the constitution of the United States ereign communities. But it is an office of occasional and and the feelings of the people of the States, as shown in voluntary recourse ; vacant whenever, in the judgment of their laws. If indeed we were about to curtail the power the competent authority, there is no adequate motive re- which the Governor claimed under the constitution or laws quiring that it should be filled, and forming a vacancy to of his own State, we might well pause. But our decision be filled whenever the occasion arises for filling it. With in this case will only place Mississippi precisely where the this view, the vacancy in the office of ministers to nego- other States have'voluntarily placed themselves, by confertiate for peace in 1813 happened at the moment when the ring upon their Governors the power which we are about proftered mediation of the Emperor Alexander was accept- to admit. ed, and that was during the recess of the Senate. Nor The gentleman from Rhode Island, who has just taken was this the only occasion upon which, in the discharge bis seat, (Mr. TulliNGHAST,) has touched upon the only of public duties, I have been called to act upon this under- | point which has caused any embarrassment to my mind. He standing of that constitutional provision. This is the ' has said that if a Governor of a State derives the power of