Mr. HENDRICKS. If the Senator will allow me, I will suggest another case. suppose a nomination is made and confirmed on the last day of the session, or within a few days before the adjournment, and the party nominated afterward declines to accept the position. The office, in. that case, would never been devolved upon him, and his failure to accept it would not be the cause of a vacancy, because he never became an officer and never accepted the office; the previous vacancy was never filled, because to fill it required his acceptance. There would be a vacancy without fault anywhere. Shall that vacancy go unfilled?. HOWARD. Not only that inconven ience, but 1000others may possibly arise from this construction for oil. I contend; but the great question before us is: what does the Constitution itself mean, what is the true interpretation of its language? The language is that the President may fill up a vacancy which may happen during the recess of the Senate. The vacancy which he may fill up must happen during a given period of time, between the beginning and the end of that period of time, that is to say, the recess of the . It must happen between the moment of the adjournment of the Senate and the moment of the commencement of its next ses.sion; and it must be a “yacancy.” What is a vacancy in an office? As I said before, we must refer to the common law for light upon the subject. Now, I understand that, properly speaking, there can be no vacancy in an office where there never has been an incumbent, for the absence of the incumbent who has once been appointed, whether that absence be occasioned by death, resignation, or lawful means, is the vacancy; the vacancy in the sense of the Constitution. Now, sir, if the power of the President in making these temporary appointments is, by the fair construction of the Constitution, confined to this particular period of time, then we must be content with it, and so must he. He cannot constitutionally issue a commission to fill a vacancy which did not occur during that exact period of time, mathematically ascer tainable. If the vacancy occurred at any other time, it is not to be filled in that way; and I reject entirely the doctrine under which the Executive at present seems to be practicing, that it is perfectly immaterial at what time a vacancy takes place or occurs. That doctrine leads to the complete divestiture of the Senate of all its power over the question of appointments to office. And it leads to it in this way: 1st, the power of final appointment is held to belong to the President, and to him alone. The power of appointment carries with it, according to the opposite argument, the unconditional, unrestrained power of removal from office; because, as is alleged, the President having this absolute power of appointment may exercise it when he pleases, and he may exercise it, as it has been exercised all along, in this shape, appointing to an office which already has an incumbent, the appointing of a successor operating, as is argued, as a removal of the predecessor; in other words, that the power of removal is a part and parcel of the power of appointment; that the power of appointment cannot be exercised in its plenitude and efficiency without annexing to it the unrestricted, unconditional power of removal. If this be so, and if the doctrine be correct that the President has a right to issue commis’sions to fill an office a vacancy in which has occurred at any time, either during the sessionor during the recess, the whole power of the Senate over the question of appointments is gone, and he has but to renew from session to session his temporary commission to keep the incumbent in office perpetually, in spite of the Senate. An opinion of the present AttyGen was published in the newspapers some time during the last summer which, if I recol lect rightly, went to this extent: that it is the right of the President to fill a vacancy whenever that yacancy may have occurred, whether during the recess or during the session, for the reason that it would be inconvenient, in his opinion, and injurious to the public service, were the President not vested with such a power. Sir, to me that is not a constitutional principle. The Constitution fixes the riod. time within which the vacancy shall appen. The vacancy is to happen within a given period. “To happen “ is to occur by accident, chance, casualty, or some means unforeseen; at all events, not by means which are within the control of the agent himself who is to fill the vacancy, for that is to make nonsense of the word “happen, ” and to give to the expression “during the recess of the senate, ” to which it is conjoined and which quali fies it, no meaning, force, or effect whatever. The honorable Senator refers to a hypothet ical case which I think may have taken place in practice, where we pass a law creating an office, and owing to the lateness of the period of the session at which the bill becomes a law the President has not had time to fill the office by a regular appointment by and with the consent of the Senate. I presume such cases have happened not unfrequently. It would be an in convenience; but it does not follow that because it is an inconvenience the President has a right to fill it in vacation. That is pressing the argument ab inconvenienti to an extreme. Sir, there is an easy remedy for just such a case. The honorable Senator need not be told that it is in the power of the President at any moment to call the Senate together in extra session for the very purpose of acting upon executive nominations and transacting other executive business. It would not be a very great inconvenience to the Senate to be called together for such a purpose, and it would be, very plainly to my mind, the duty of the president to call them together for that purpose, if the office was one of great public importance, a thing which has been done repeatedly in the history of the Government, ai almost every feat. y He refers to the case of the death of some officer residing at a remote point during the session of the Senate, of the inconven ience which would arise if the President were not authorized by the Constitution, should he hear of this death during the vacation, to be able to fill it. Undoubtedly there might be some damage to the public interest arising from the accident, but where in any Government on earth do we find guards and barriers against every possible inconvenience that can arise in the course of the administration of public affairs? These accidents are liable to arise at all times and in all Governments, not only in our own but in every other Government, and from the very nature of government itself the community cannot be guarded against their occurrence; the thing is impossible. No Constitution, no statute can meet every case that may possibly arise. No, sir; the framers of the instrument made it as wisely as they were able, and they have left to us among other rich legacies the care and protection of this Constitution. They have said in plain words that the President may fill all vacancies that may happen during a particular period, and the implication is irresistible that they intended to exclude this power in every case that did not occur during that particular period. I think myself they were wise in so doing, and I am disposed to stand by the old instrument until the people of the U.S shall see fit to alter it. As to the long practical construction that has been given to this clause, I admit the force of such a practical construction in legislation as well as law; but it is to be observed that this question of the power of removal has never been considered as completely at rest. The best minds in the country. all along doubted and disputed the unlimited right of the President to turn incumbents out of office in the recess. The example was 1st set to the country under the administration of General Jackson who made an indiscriminate removal of all officers who were opposed to his policy, he going upon the ground, 1st probably suggested to him by the Albany regency, that “to the victors belong the spoils;” to say that I think no fact in our history has tended so strongly and effectually to corrupt the public mind, and, if I may so speak, the politieal morality of the nation, as this doctrine that “to the victors belong the spoils.” It makes almost every man who gives a vote a scrambler and an aspirant for office, and “office, ” “office, ” from the dawn of day to the setting of the sun, is the cry of the hungry crowd besetting, not only us here, but every man throughout the country who is supposed to exercise some influence in the bestowment of these precious articles. I hope this congress will do something toward checking this spirit of office seeking, fostered and upheld as it has been by this misconstruction and misuse of the Constitution of our fathers.