Mr. HENDRICKS. Then I move to strike out all of the 3rd section after the word “there after “ in the 6th line. The words which I move to strike out are: And if no appointment, by and with the advice and consentof the Senate, shall bemadeto such office so vacant or temporarily filled as aforesaid, during such next session of the Senate, such officeshajiro main in abeyance, without any salary, fees, or emol uments attached thereto until the same shall befilled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in caseof a vacancy in such office. I move to strike this part of the section from it, because in the 1st place I think it is in violation of the Constitution as the Constitution has been uniformly construed. The constitution provides that “The President shall have power to vacancies that may happen during the recfiellssuopf tahlel Senate, by granting commissions which shall expire at the end of their next session.” This will depend altogether upon the construction which shall be given to the words “happen during the recess of the Senate.” Many have thought that that language means such a vacancy as takes place or begins during the recess; but the construction has obtained, and I suppose it is as settled as any construction well can be, that the words mean vacancies that may exist or be during the recess of the Senate. The Government has been carried on upon that construction. Where a vacancy exists during the session of the Senate, and is not filled before the adjournment, it has been understood and construed as a vacancy hap ening during the recess, and the President [. uniformly filled such vacancies. If this be the proper, construction of the Constitution, then there is no power to pass the section as it now stands. But, sir, suppose that the Constitution does not forbid the legislation which is proposed; is it good policy to adopt it? Here is a period perhaps of some months during which the senate may not be in session. The appointee of the President may not be agreeable to the senate for that time; yet that appointee can only hold the office until the close of the next session; it is but a temporary appointment; and no great harm can take place or be suffered because a person holds office whose political views are not agreeable to the Senate for that length of time. What may be the consequences of the adoption of this section it is difficult for us to tell. The office is to remain in abeyance; it is not to be filled in the case which is stated in the section, the case being where an appointment is not made during the session by and with the advice and consent of the Senate. From the time of the adjournment of the senate the office is to be in abeyance; and to get away from the practical difficulties the section provides that: During such time all the powers and duties belong . such office shall be exercised by such other er as may by casoof law exercisesuch powers and duties a vacancy in such office. I do not know in how many cases that provision would be applicable. Take the case of a collector of internalrevenue; suppose the Senate and the President fail to agree upon an appointee for that office, and an adjournment of the Senate takes place, the office becomes vacant; who then is to exercise the powers and discharge the duties of that office 2I do not know. The important collections ought to be made in the month of June; but that office being vacant during the summer, who shall exercise the powers and discharge the duties? The SecyTreasury cannot do it, nor can he appoint anybody to discharge those duties. This section is framed as if in case of a vacancy in any office there is always provided by law somebody who may discharge the duties of the position; but I think in point of law that is not the case. It would be a very serious matter if in some of the districts the revenues, for instance, should not be collected. The question is a veryplain one. I need not discuss it further or am right that the Constitution does not allow this legislation, that is an end of debate on the subject. if I am wrong on that, I think the other considerations I have stated ought to Mr. HOWARD. The govern the Senate. honorable Senfrom Indiana moves to strike out the latter clause of section 3 for the reason, as he alleges, that it is not in accordance with the Constitution. During a former Congress I had occasion to give this subject some attention as a member of the ComJudiciary; it was at a time when there was no such political agitation as disturbs the minds and the judgments of some men now. That committee was instructed by this body to inquire into the power of the President to make just such appointments as are coptemplated by the clause to which the gentleman's motion refers, and they came to the conclusion, and I think very properly and correctly, that the President has no such power under the Constitution. The Constitution declares that the power of appointment shall be lodged in the President, by and with the advice and consent of the Senate. No appointment, therefore, to an office can, properly and legally speaking, be made without the concurrence of these 2 branches of the Government. The President, who consults the Senate as to the propriety of a contemplated appointment, does so in the shape of a nomination, and the assent of the Senate is given to that nomination to make it effective. Without these preliminary. it is impossible under our Constitution that a legal appointment to an office can be made. I think the honorable Senfrom Indiana will not dispute this proposition. It may be wrong; it may have been possibly unwise in our fathers who framed oratified the Constitution to insert such a clause in the instrument. That, however, is not now the question. The question is as to what they actually intended by the language they used. It is, in other words. a question of power, authority, jurisdiction. The clause in the Constitution to which I refer proceeds further to declare that the Presi.dent may fill up all vacancies that may happen during the recess of the Senate, not by making appointments, but by, issuing, commissions which shall expire at the termination of the next session of the Senate. I agree with him that the practical precedents of the Government thus far lead to this interpretation of the Constitution, that it is competent for the President during the recess of the Senate to turn out of office a present incumbent and to fill his place by commissioning another. This has een, I admit, the practice for long years and many generations; but it is to be observed at the same time that this claim of power on the part of the Executive has been uniformly contested by some of the best minds of the country. What is it, sir, to fill up a vacancy? The President and the Senate make the officer give him his appointment. It is very true that the last act is to be performed by the President, which is the issuing to the officer of a commission. Now, is it in accordance with the language used in the Constitution that one branch. of the appointing power may create a vacancy? Is it according to the just and fair usage of language to say that the agent making the appointment may remove the incumbent and thus create the vacancy which by the terms of the Constitution is to “happen?” I think not. I think it is a misuse of language. The language itself is “vacancies that may happen, ” plainly, indubitably, according to the ordinary use of language, implying contingency, chance, uncertainty; at all events excluding the agency of the person who bestows the appointment to the office. I suppose that when the framers of the Constitution used this language they used it in reference to the common law of England; and how by that law does a vacancy in an office “happen;” in other words, take place, come into existence? It happens, as we all know by resignation, by death, by absolute inability to discharge the functions of the office; but it never is spoken of as happening in consequence of a removal from office by the executive power. Then, according to the view I take of the Constitution, the 1st clause of the 3rd section of this bill is simply a restatement in more full and accurate language of the real intention of the Constitution itself. It declares That the President shall have power to fill up all vacancies that may happen during the recess of the Senate by reason of death, resignation, expiration of term of office, or other lawful cause, by granting commissions which shall expire at the end of their next sessionthereafter. And I believe that such is the full extent under the Constitution, according to its true and most natural interpretation, of the power of the President over vacancies; and if that be the true interpretation it follows logically that where the vacancy has not been filled during the session of the Senate at which it should have been filled, during the whole of the succeeding recess of the Senate that office must necessarily remain in abeyance; in other words, vacant, without an incumbent. It is really a mere reenactment of the true sense of the clause. I cannot vote to strike out this clause of the 3rd section, because I think it very necessary it should be retained in order to remove all doubt. I have said, sir, that it is not in the power of the President to create such a vacancy by the appointment of a successor. The right of the Senate and the duty of the Senate is plain. An appointment proper cannot be made without consulting them and rbtaining their consent. The country looks to them for their advice, for their opinion, for their interference, in order to secure suitable qualifications and to restrain the wayward exercise of this assumed power by thes Executive whenever such a case shall co and it is beyond doubt that during the last year this power of removal has been exercised most wantonly and most injuriously in multitudes of cases, and greatly to the detriment of the true interest of the country. And the cases are almost innumerable in which the names of persons have been sent to us and put in nomination for offices, and those nominations rejected, and still after the adjournment of the Senate the President, in utter contempt of the opinions of the Senate, has proceeded to issue temporary commissions to persons thus rejected. Sir, I believe there is no member of this body who will rise in his place and declare that under the Constitution it is competent for the President after the rejection of such a nomination, and during the succeeding recess of the Senate, to issue to that person a temporary commission; and why? Because it is too plain to every mind that in reference to the particular individual the Senate ho passed an unfavorable judgment, it was virtually forbidden that person to hold the office, and such a temporary appointment by the President is a complete contempt of the opinion of the Senate expressed in constitutional form. Now, sir, I believe Congress have full power over this subject, and that it is our duty now (although this perhaps is not the fittest time at which to settle the question) to enact, some statute which for." shall restrain this wanton exercise of the power claimed by the President, and which in my judginent is for bidden by the Constitution. It is time for us to come up to our work and to do our duty to the country. The country expects it and will not be content if we leave our seats at the present session without possing some such law.