The Lansing state Republican. [volume] (Lansing, Mich.) 1855-1874, 1866-05-02
Speech Of Senator Howard April %, 1868


by the Senate, for services performed after
such rejection, or IN case they are reap
pointed after the adjournment OF the SEN
ate, Mr.. Howard spoke a follows:
Mr. President, there are some things il
regard 10 Offices which [ regard as certain
ana settled, and the first Is that no Office
can exist in the United States except under
q law OF the United states. The second is
that the President OF The United Staes has
the power OF nominating candidates Tor
Office 10 the Senate, but that he has not
the power OF appointing them 10 Office
except bv and with the a1vlce and consent
OF the Senate, unless IN cases or vacancy
that may happen during the recess OF the
Senate
am aware. and so are We all that the
practice has been very mmon heretofore
during the existence OF the Government
for the President OF the United states 10
assume 10 Ill vacancies by way Of giving
commissions where vacancies have occur
ted. not during the recess Of the Senate,
but during the session OF the Senate. Now,
sir. I hold that it IS the plain intention Of
the Constitution that where the President
has authority 10 grant commissions FOR the
purpose OF filing a vacancy il must have
begun 10 exist, hot during the session Of
the Senate, but after the close OF the ses-
sion 0f the Senate and during the recess OF
the Senate. | am quite aware that the
Attorneys General OF the United states,
and think perhaps without any difference
vi opinion among item as 10 tie result AZ
which they have arrived have entertained
the idea that 4 vacancy occurring during
the session OF the senate may he filed by
commission alter the recess Of the Senate
mas commenced The Committee on the
Judiciary took this question into consider
alton. and they held. and | think very
properly held, that was 4 wrong and er-
rOneCus view OF the Constitution he
Constitution declares that:
The President shall have power 70 MI
up all vacancies that may happen during
the recess OF the Senate. by granting com
missions which shall expire al the end o.
their next session"
An eminent Attorney General OF the Uni
ted States. Mr.. Writ, think, took very
great liberties with this language when he
held that the word " happen" in its con
nectiOn here, may be so construed as &c
cover q case of vacancy, where the vacan-
cy in the office had begun 10 exist during
the session of the Senate. That was the
construction which he put upon that Ian
guage-I think a very strained and unten-
able construction. The Attorney General,
Mr. Legare, in 1871, was called upon 10
give an opinion upon the same question.
and he held, not that the word happen
may receive that broad construction, not
that il may be made i'm that connection 70
/ imply i continuation OF an event, but that
the President necessarily had this power TO
/ fill a vacancy that had occurred during the
session of the senate, ia virtue OF his pow
ct TO take care that the laws are executed
two very different sources OF power.
DO not agree with either OF them. / think
70 Is nigh time InaI TIE senate OF the Uni
tel States should act upon this most grave
aud serious subject. 10 not admit that
the practical construction thus given by the
executive branch OF the government, for q
long time, indeed. is the true anu accurate
construction to be given; and in saying
this / am not unaware, | trust, OF the great
weight which such a i0ug-cOn.inued prac-
teal construction to the language Of the
Constitution is entitled TO- Certainly, very
great inc0nvenlences may arise and often
DO arise from departure from the practi-
cal construction O. the law: but in such
cases as this, II seems to me That the Ian
guage Of the Constitution is too plain 10 be
mistaken. Mr.. Howard then read as fol-
lows. from "a report vi the judiciary Com
mittee of the 31th Congress, upon this
question. written by himself:l
60 We are aware that this construction has
been, from time 10 time, sanctioned by At
tOrneys General, and as recently as 1885,
0y Mr.. Cushing. and that the Executive has,
from time TO time, practiced upon H. We
are also aware Of the great weight which
such q continued practical construction j.
entitled 10 in considering the meaning and
intent Of doubtful clause IN public act.
ourselves that such is the character Of The
provision. We think the language too
plain too admit OF = doubt, or 10 need
an Interpretation; aud where such Is
the case, the language must not be wrest
ed from its natural sense 10 avoid sup
posed Inconvenience.
"And il is quite apparent from all the
arguments OF the Attorneys General, that
the real foundation OF their conclusions is
the assumed Inconvenience TO the public
service. OF permitting an Office TO remain
vacant during the recess, where the acan-
cy has happened durlag the session aud
remains untitled at its close
Gases, it is true, may occur. as they
have occurred. where a vacancy may sub
sist after the session in consequence OF the
refusal OF the Senate TO consent 10, or OF It's
omission to act upon, 4 nomination; and
exactly the same Inconvenience may result
As Il has on numerous occasions resulted
from the omission OF the President to send
10 u nomination IL j. also an incOuven-
fence that vacancy should continue for
any length OF time whether occurring au-
ring the session or the recess and Yet va
caucies must. from the very nature OF the
case, thus continue for 4 longer or shorter
period. \ similar Inconvenience must nee F
essarliy have happened il the Senate had
no power whatever over appointments, .
and occurs from necessity In the mos alb .
sOlute governments. IL j. unavoidable. /
All this, however, was clearly foreseen by
the trainers Of the Constitution when they
used the language giving the power; and /
it strikesus IL far more rational TO conclude /
that they regarded this temporary incOn-
venience as outweighed by the advantage
they had secured by requiring all appoint
ments to Office, except in cases OF vacancy
happening in the recess 10 receive the
sanction of the Senate the plan cana as
near 10 perfection as the nature OF the case
and the preservation Of any effective power
on the part OF the Senate would admit.
Mr.. President. | am for retaining. so far
as Is possible. the action OF the executive
branch OF the Government 10 office within
the strict limits Of the Constitution I
think that during the last year or two We
have had instances enough OF an assump-
ton on the part Of the executive to ap-
point To Offices which had not even been
created by law, and unless the Senate shall
interpoSe effectualy, and al timely mo-
ment. TO interrupt this current Of events. Il
IS Impossible 10 tell 10 what evils it nav
no; Leaf shall with great pleasure vote
for the amendment OF the Senator from
Missouri because | think there ought 10 be
Just exactly that restraint imposed upon
the appointing power.
The Crops.