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Fen. 18 to 21, 1831.] General.Appropriation Bill.—Turkish Negotiation.—Internal Improvements.
Mr. T. said he should have been willing to have let the provision stand in the bill as it was reported, but it certainly went further than he was aware of.
Mr. CHAMBERS said, from his present situation in relation to this bill, he felt somewhat embarrassed and restrained in relation to his action upon it. The question certainly involved a great principle; and in order that the views of gentlemen might be deliberately made and calmly expressed, in order to give ample time for its consideration, he would move to lay the bill on the table for the present.
The motion was agreed to; and,
On motion of Mr. WHITE, the Senate went into the consideration of executive business; and, after some time spent therein,
The Senate adjourned.
FRIDAY, FEBRUARY 18.
Agreeably to notice given, Mr. BURNET asked and obtained leave to introduce a bill declaring the assent of Congress to an act of the General Assembly of the State of Ohio, therein recited; which was twice read, and referred.
Mr. WOODBURY gave notice that he would, to-morrow, introduce a joint resolution, relative to a subscription, on the part of Congress, to a stereotype edition of the laws of the United States.
GENERAL APPROPRIATION BILL.
The Senate then took up the general appropriation bill, together with the amendments reported by the Committee of Finance of the Senate. The sixth amendment was as follows: “For the outfit and salary of an envoy extraordinary and minister plenipotentiary; for the salaries of a secretary of legation; of a drogoman and a student of languages at Constantinople, and for the contingent expenses of the legation, $74,000; that is to say, for the outfit of an envoy extraordinary and minister plenipotentiary, $9,000; for salary of the same, $9,000; for salary of a secretary of le. gation, $2,000; for the salary of a drogoman, $2,500; for the salary of a student of languages, $1,500; for the contingent expenses of the legation, $50,000. [“For compensation to the commissioners employed in negotiating a treaty with the Sublime Porte. “To Charles Rhind, an outfit of $4,500, deducting therefrom whatever sum may have been paid to him for his personal expenses. “To Charles Rhind, David Offley, and James Biddle, at the rate of $4,500 per annum for the time that each of them was engaged in the said negotiation. “For compensation to the commissioners employed on a former occasion for a similar purpose. “To William M. Crane and David Offley, at the rate of $4,500 per annum for the time that each of them was engaged in the said negotiation.”] Mr. TAZEWELL moved to strike out the part above included in brackets, and this motion gave rise to a debate which occupied the Senate until past four o’clock, in the course of which allusion was made to the Panama mission, and the power of the President denied to appoint commissioners to conclude a treaty without submitting to the Senate the appointment, for confirmation, at the next ensuing session after the appointment. The gentleman who participated in the debate were Messrs. Tazewell, CHAMbens, Swith, of Maryland, Bell, KANE, KING, and SANrotto. To give an opportunity for Mr. Tazewell. to reply to gentlemen opposed to his motion to strike out that part of the amendment before noticed, The Senate adjourned.
SATUR nAr, Fr. BRUARY 19.
The Chair presented a letter from William A. lavis, of Washington, in which he proposes to furnish five hundred copies of the laws of the United States, in seven volumes, including those relating to the District of Columbia, and the various treaties made by the United States with foreign Powers, as well as with the Indians, at twenty dollars per set, or one thousand copies at eighteen dollars per set; which was laid on the table.
Mr. BARNARD presented two memorials from upwards of five hundred citizens of the city of Philadelphia, engaged in the manufacture of iron, praying that the duties on foreign iron may not be reduced or rescinded; which was referred.
THE TURKISH NEGOTIATION.
The Senate resumed the consideration of the amendments to the general appropriation bill—the question being on Mr. TAzew ELL’s motion to strike from the sixth amendment of the Committee of Finance the compensation proposed for the negotiation of the Turkish treaty. Mr. TAZEWELL was entitled to the floor; but, with his consent, Mr. ELLIS moved to lay the bill and amendments on the table, with a view to going into the consideration of executive business. Mr. SMITH, of Maryland, remarked, that there would be no money to meet demands at the treasury until the bill passed. Mr. ELLIS withdrew his motion. Mr. KANE then submitted an amendment, to the following effect: To strike out the items proposed by Mr. TAzewell to be stricken out, and to insert, in lieu thereof, the following: “To the persons heretofore employed in our intercourse with the Sublime Porte, the further sum of $15,000, in addition to the sum of $25,000, appropriated for the contingent expenses of foreign intercourse.” Mr. ELLIS then renewed his motion; and the bill and amendments were laid on the table, and the Senate went into secret session, and remained with closed doors until the hour of adjournment.
Mox DAY, Fen RUAny 21.
Mr. HAYNE rose, and remarked, that, at the opening of the present session, the message of the President of the United States contained a clause relative to internal improvements, which was referred to the committee on that subject. His object in rising at this time was to ask of the chairman of that committee whether the committee would make a report on the subject during the present Session.
Mr. HENDRICKS (chairman of the Committee on Internal Improvements) said he could only reply, [he had heard the gentleman from South Carolina indistinctly] that he could not say whether the committee would report or not at this session. He, for one, was not in favor of submitting an abstract report on the subject. At the instance of the Senator from Virginia, [Mr. Ty LER, the matter had been referred to the committee of which he was chairman, and he had no doubt that gentleman could give the Senate more information on the subject than it was in his power to do.
Mr. TYLER said he was of opinion it was due to the President to make some response on the subject named, which had been noticed in his message. He himself had devoted considerable time in the preparation of a report on the subject, which he had intended to present to the Senate; and he remarked, on the importance of a direct answer to the message of the President. There was no reason to doubt that the draft of a report, which had been
Sex at E.] Turkish Commission. [Feb. 22, 1831.
prepared by him, would have been satisfactory to the who witness my present condition, to pardon this ungrateSenate, and to the people. He had received the co-opera- ful obtrusion upon their attention. tion of the Senator from Mississippi [Mr. Poin noxtER). In moving to expunge that portion of the amendment in the committee, though that gentleman and himself being proposed by the committee, which goes to provide for in the minority, they had been overruled. He felt this the payment of “an outfit and salaries” to “the commisexplanation due to himself. Whether a report would be |sioners,” appointed as well by the late as by the present made, must, then, of course, depend on the majority of President, “to negotiate a treaty with the Sublime Porte,” the committee. ... He had taken this opportunity to shake I stated most crplicitly that it was not my purpose to off all responsibility, so far as he was concerned. deny to these persons the money which the committee Mr. DUDLEY said that the gentleman from Virginia proposed to award as compensation for the services they was correct in what he had stated. He could not, how- were supposed to have rendered; but that my object ever, sanction the report prepared by that gentleman, and was to express, in this manner, my own decided disapprowas, for himself, of opinion that it would be bctter for bation of what had been done in this behalf, as well as of the committee to make no report on the subject. the mode in which this remuneration was now proposed Mr. HAYNE suggested, for the consideration of the to be awarded to them. I said, that if a bill having for committee, that when they had arrived at the conclusion its object the compensation of these persons, should be not to make a report, it would be well for them to move introduced into the other House, where it oright to origito be discharged from the further consideration of the nate, and should receive the sanction of that body, such subject. a bill would meet my cordial support here, even if it Mr. HENDRICKS said, a motion like the one just sug-|should bestow upon these individuals more than the comgested, he might probably have made, but for his opinion|mittee proposed to allow them by their amendment. This that it would lead to a debate, tedious and unprofitable. |explicit declaration, repeated more than once, I had supHe had no disposition unnecessarily to consume the time of posed, would have protected me against the imputation that body. There were matters for consideration before of the Senator from New York, [Mr. SAN Foun, ) which was the committee, which he thought were of more importance, strongly impled in the question he propounded, when he and should have the preference. If any member of the so emphatically asked if I meant to claim to the United committee chose to make the motion suggested by the States the soil benefit of the labor and time of these gentleman from South Carolina, certainly he should not persons, and deny to them any equivalent therefor. To object to it. - this question, thus asked, I will again answer with equal Mr. POINDEXTER said he had carefully examined emphasis, No. It is not my wish to refuge to these men the draft of a report before referred to, prepared by the one single cent. So far from it, inconsiderable, nay, gentleman from Virginia, [Mr. Ty Len, and he felt it due doubtful, as I believe the benefits to be, which they are to himself to say that he coincided with the views of that supposed to have rendcred, yet i will go hand in hand gentleman, as expressed in the report. The question of with the Senator from New York, or any other, in awardconstitutionality was not dwelt upon in it: it had reference ing for their service, not a mere quantum meruit, but a to the expediency of involving the nation in a debt which, liberal and ample allowance for all their time and all their in his opinion, could never be paid. The influence which labor, nay, even for their honest though mistaken efiorts such an extensive Executive patronage would have upon in this regard. the institutions of the country was also noticed. By rea- Having said thus much, I must take the liberty of sigson of the objections of the gentleman from New York, nifying to the honorable Senator from New York the [Mr. Dun LEy, the committee had not agreed upon a re- very wide distinction (which to my own mind is quite obport. No report would be made, therefore, unless that vious) between such a voluntary award of compensation gentleman would concur with the minority of the com- to those who intended well and acted honestly, and voting mittee; and on him, in consequence, would the respons:- an appropriation of money, upon the application of the bility rest. Executive, in edemption of the faith of the state, said Mr. P. (no other gentleman rising to speak) then re- to be pledged by those who I cannot agree had any marked that there was soone business of a confidential authority so to commit it. One would be the acknownature left unfinished at the time of adjournment on Sa- ledgment of a debt, of a demand of strict justice, which, turday, and he would now move to go into the considera- although Congress may have the physical power, they tion of executive business. The motion prevailed, and the have not the moral right to refuse. The other is a mele Senate sat with closed doors until near four o'clock; when application to our equity, not addressing itself in any
The Senate adjourned. way to our plghted faith. One is a common exercise - of our power of appropriation, connected with nothing
- Turzsi sy, FE mRUARY 22. but the special merits of the particular case, and consti
- tuting no obligatory precedent for any other even of a
THE TURKISH CO M M is SION. like kind. 'I'he other is a direct sanction of what I be
The Senate resumed the consideration of the amond-lieve to be an unconstitutional act of the Executive, and ments to the bill for the support of Government for the a voluntary abandonment on the part of the Senate of its
year 1831; the amendment offered by Mr. Tazowkit, and rights and privileges. One mode of proceeding would as further proposed to be amended by Mr. KAN F, being furnish to the other House all the facts existing in the
the pending question. so, and necessary to a correct exercise of their discre: Mr. TAZEW FLI, rose, and addressed the Senate astion over it. The other is well calculated to mislead follows: no body, by holding out the idea that the appointment
If I had consulted my feelings, rather than my sense of of the persons for whom compensation is thus provided, duty, I certainly should not have made the motion I did a has received the confirmation of the Senate; and that the few days since, by which the discussion then commenced public faith is the cby plcdged to award to them the has been produced. In this discussion, the infirmity un- allowance customary upon such occasions. der which I labor prevented me at that time, and, I fear, The Senate cannot fall to understand the broad disserwill still disable me, from doing justice to the subject. ence between the two cases; and, whatever may be their But, as I have commenced the task, (however laborious opinion of the corectness of the principies upon win ch and even painful it must be in my present situation,) I will this distinction depends, they will nevertheless sce in the now endeavor to complete it, confiding in the Senate, distinction itself the easons for the course I ain dispo.cd who well know how I am connected with this matter, and to pursue. i is course will lead ore to co-operate wil
Feb. 22, 1831.]
lingly with the most liberal, in awarding compensation to these individuals for what they have done, whenever that subject shall be brought properly before me, but will not permit me to vote one cent, in the mode now here proposed. If any Senator, said Mr. T., shall concur with me in the opinion I have thus expressed, that the power which has been exercised by the President upon this occasion is not granted, but forbidden to him by the constitution, and that its exercise has been in flagrant violation of the rights and privileges of this body, conferred upon it for the wisest purposes, then I know that my motion will receive support. But if a majority of the Senate shall dif. fer with me in this opinion, it will be rejected, as it ought to be. In any event, however, I shali have the satisfaction of bringing this much vexed question to a conclusion. Presented as it now is, it must be decided one way or the other. There exists no mode of eluding it. It is the conviction of this, which gives to the present discussion all the interest it has for me; and which alone could have induced me to trespass upon the attention of the Senate at this time. It has now been so long since I presented to the Senate a statem:nt of the facts existing in this case, out of which the questions I mean to discuss arise, that it seems neces. sary to preface what I have to say by a brief recital of them again, that none may suppose 1 am about to waste your time by an idle dissertation upon some mere abstract proposition, which, whether true or false, is of little consequence to the country. I hope, therefore, that the Senate will favor me with their attention, while I repeat the statement formerly given. Between the Ottoman einpire and the United States no political connexion, or diplomatic relation of any kind, ever existed, from the hour which gave birth to this republic as an independent sovereignty, until the year 1829. It is true, ineflectual attempts were inade to establish such relations and connexions, by both the Adamses while they presided in our Government. B. it the cifort of the elder Adams, altirough approved by the Senate, failed, by reason of the refusal of the minister appointed by him to accept his appointment, and the subsequent abandonment of this scheme by those with whom it originated. And the secret efforts of the late President to establish such relations, without the advice or knowledge of the Senate, also failed, for reasons recently disclosed to this body, to which I will not now make any further allusion. Whatever may have been the desires of these Presidents, however, the fact is undoubted, as I have stated it to be, that until the year 1829 there never was any connexion or relation between the United States and the Sublime Porte, more than now exists between the former and the culpires of China and Japan. In this state of things, on the 12th day of September, 1829, and during the recess of the Senate, the pi esent President caused letters patent to be expedited from the Department of State, signed by his own proper hand, and authenticated by the great seal of the United States, whereby he commissioned the three persons mained in the amendment proposed by the committee, to be coinin’ssioners on the part of the United States, and thereby endowed them with plenipotentiary powers to negotiate a treaty of continence and navigation with the Ottoman Porte. I beg the Schate to bear in mind that this authority was not conferred upon these persons by any private letter or warrant written by a Societary, and intended for their own guidance and governance merely; but that it purports to be granted by the Chief Magistrate himself, is continunicated to them by letters patent, under his own signature, authenticated by the great seal of the United States, addressed to all whom they might concern, designed to be exhibited to the inslocction of a foreign sovere gin, aid to
be exchanged against similar powers to be granted by him to others who might equally possess his confidence. To whomsoever this seal was shown, it proved itself. When recognised by any sovereign, it entitled those who bore the commission it authenticated, to all the rights, privileges, and immunities accorded to the ministers of any potentate on earth; and authorized them to pledge the faith and honor of this nation to the performance of any act within the scope of the full power it purported to bestow. This is the character of the commission granted by the President upon the present occasion, a copy of which is now upon our files. In pursuance of this commission, and of the instructions that accompanied it, Mr. Rhind, one of the commissioners, procecded from New York (where he then was) to Constantinople. The other two commissioners were already near the scene of action; one of them being the commander of our squadron in the Mediterranean sea, and the other a commercial agent of the United States, resident at Smyrna. Arrived at Constantinople, Mr. Rhind exhibited his commission to the Sultan, was received and accredited as the representative of the United States, and his proposal to negotiate a treaty was accepted. Other monisters, clothed with equal authority, were then appointed by the Turkish monarch, to confer with him upon this subject. They met, exchanged their powers, and began the business of negotiation. This was terminated by a treaty, which, although it bears date early in May, 1830,
I will presently show was not concluded until several
weeks afterwards. The Senate of the United States met on the first Monday in 3)ecember, 1829, and continued in session until the last Monday (being the 31st day) of May, 1830. During this whole period, no information of these appointments was ever communicated to this body, nor were they at any time consulted, in any form whatever, as to the propricty of instituting this nission. The message of the President to both Houses, at the opening of the present session of Congress, in announcing that a treaty had been cintered into with the Sublime Porte, gave the first intination to any Senator, that any negotiation had ever been had with timat Power. Such are the facts existing in this case, as every mcmber of the Senate well knows; and, by these facts, these two questions are presented: Did the President possess any authority to institute such an original mission during the recess, and without the advice and consent of the Senate? And if he did, was it not his bounden duty to have nominated to the Senate at their next session the persons he had so appointed during the recess? The amendment offered by the committee, proposing, as it does, to give “an outfit and salaries” to these “commissioners” thus appointed, is a direct affirmation of the President's authority so to appoint them, and an approbation of his course in withholding all knowledge of ulcir appointments from the Senate. Then, the proposition involved in my motion is, will the Senate sanction this usurpation of authority, which has been thus exercised in fiagrant derogation of their rights? 'I his is the question; and it is vain for us to seek to hide it from ourselves. A power has been exerted by the President, without our advice and consent; and he now comes here, asking an appropriation of money, as the pledge of our acquiescence in, and approbation of, that which he has so done. Ought we to grait the application which has this object? I pray the Senate to consider tic matter well, before they agree thus voluntarily and forever to surrender their loghost privilege, conferred upon them by the constitution for the wisest purposes. Before I undertake to examine the questions I have stated, let me call the attention of the Senate to the nature and charactor of what is supposed by some to be the “trifing” power which has been exerted upon this occasion. SENATE.]
[FER. 22, 1831.
If the President alone, without the advice and consent of the Senate, may originate a mission to a State with which we have never before had any political connexion or diplomatic intercourse, all must concede that he may compound that mission of what materials he may think proper. if he may despatch one minister, he has the same authority to send three, as he has done, or five, as was done in the negotiations at Ghent, or so many more as he may think fit. The same power he possesses to send ministers, he must also possess to accompany them with such and so many secretaries, interpreters, students of languages, and other attach s, as in his discretion he may judge useful to his new legation. And if he may appoint all these, doubtless he may contract with all and each of the members of this newly recruited corps diplomatique, as to the quantum of the compensation to be paid for their services. Thus he will have an unlimited power to pledge the public revenue to any extent he may choose. We shall then have these strange anomalies in our Government, that the President, who cannot touch one cent even of his own salary without the consent of both Houses of Congress, may, nevertheless, by his own act, properly create any charge upon the treasury in favor of another which he may think proper; and although, as to our long established and approved diplomatic connexions, the President must not enlarge the establishments fixed by Congress, yet, as to all new relations, his own discretion is the only check upon his own will.
Nor is this all. If the President alone, without the advice and consent of the Senate, may originate a new mission to Turkey, a Power with which the United States never had any political connexion or diplomatic relation, he certainly must have the same authority as to any other State. Then, the moment the Senate adjourns, he may adopt the suggestion of Mr. Rhind, contained in one of the letters now on your table, which has been read, and despatch a troop of diplomatists to Armenia, and another to Persia, on missions to which I am very confident the Senate would never give their advice or consent. If the matter should end here, although I, and the very few others who still think as I do, might regret this unexpected extension of Executive patronage, and useless waste of the public treasure, yet it would not be productive probably of much other positive mischief at present. But it might not end here.
Sir, we live in strange times. Revolutions of Government, and the dismemberment of empires, events, which formerly were almost of as rare occurrence in the political world, as those terrible convulsions of the natural world, which sometimes have shaken to its centre the globe we inhabit, have of late become quite common incidents. We now feel surprise if our newspapers do not furnish us, daily, with the details of some sanguinary civil conflict, of some new change in long established Governments, or of some divulsion of ancient States and empires. Old dominions are almost hourly tottering to their downfall, and new sovereigntics, springing from their ruin, are claiming to be recognised as independent members of the great family of nations. At such a season as this, while the thunder rolls and the lightning gleams in the distance only, it becomes us to look well to the ship in which our all is embarked. Our country expects every man to do his duty; and the first duty she enjoins is a faithful observance of the mandates of her constitution. If the President alone, without consulting either House of Congress, may institute an original mission to Turkey, so he may to Greece, to Egypt, to Belgium, or to Poland. Now we all know, not only what might be, but certainly would be, the result of this. It would be just cause of war; and the United States would at once be involved in that dreadful conflict which seems but to wait the return of spring to deluge Europe once more with blood, and to threaten the repose of all christendom, perhaps of all the world. Here,
then, would be another anomaly in our Government; for while Congress alone is authorized by the constitution to declare war, by the mere exercise of this “trifling” power of despatching a minister to a new State, the President alone would be authorized to bring about that very state of things which the wise authors of that instrument certainly intended to commit to the discretion of Congress only. Such is the nature, and such may be the effects, of the “trifling” power that has been exerted by the President upon this occasion, and which we are now asked to approve, to sanctify, and so to perpetuate in him and his successors. Let me not be told, as has been more than insinuated by some, that this vast power will be lodged in the discretion of the President; and that we should have so much confidence in the wisdom and virtue of this officer, as to believe that the power will not be abused or exercised indiscreetly. Sir, I never have had, and I never can have, so much confidence in any President, as willingly to confide to his unchecked discretion any important power, with even a hope that it will not be abused. It is in the nature of man to covet power, and to abuse that which he has, in order to acquire more; and, of all forms of Government, this elective monarchy of ours is least calculated to repress this natural proclivity of its temporary chief, especially if he desires to retain his place for another term. Confidence in the discretion of their Executive has ever been the bane of republics, from the earliest day; and I speak in the spirit of our own constitution when I say that, instead of such confidence, it inculcates distrust in every line. Under the influence of this spirit, I denied the claim to this identical power, when it was asserted by the immediate predecessor of the present incumbent of the Presidential chair; and under the same influence I now deny it to him. In the discreet exercise of all the powers conferred upon him by the constitution, he ever has had, and ever shall have, my sincere and cordial support; but whenever he oversteps the limit there prescribed, I will oppose his lawless acts with the same zeal and freedom I have ever heretofore manifested upon other like occasions. Has he done so in the instance before us? This is the question, to which I now invite the attention of the Senate. Mr. President, whatever may be the opinions of some as to the inherent Powers supposed to be enjoyed by this body, or some other departments of this Government, I think we must all agree that the Executive has no such inherent or undefined authority. All his powers must be derived under some express grant contained in the constitution. Inherent power in him would be but a courtly term to denote prerogative; and the exercise of any ungranted authority by him is nothing else than mere usurpation. Let us then turn to the charter, and see if that contains the concession of any such power as has been here exerted. It is true that the first section of the second article of the constitution vests in the President “the Executive power;” and equally true that the power which has been exercised upon this occasion, is properly an Executive power. Therefore, if there was no other provision in the constitution upon the subject than this, no doubt would exist that the President was authorized to do that which he has done. But the constitution does not stop here. Very soon after this general grant of the Executive power, and in the next section of the same article which contains the grant, the constitution proceeds to check and restrain the power so granted, by prescribing the manner in which alone the President must exercise it. Thus, in the second paragraph of the second section of this same second article, it declares that “he shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur:” and then, that “he shall nominate, and, by and with the advice and consent of Feb. 22, 1831.]
the Senate, shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court; and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Hence it is obvious, that, although the Executive power is vested in the President alone, he is expressly inhibited from making treaties, (if indeed that is an Executive power,) or appointing to any office of the United States, (which certainly is such,) without the advice and consent of the Senate. But the officers in question never have been nominated to the Senate, nor has this body advised or consented to their appointment in any way; therefore, the act of the President in conferring these appointments without the concurrence of the Senate can derive no sanction or support from this part of the constitution. If this act can be justified at all, its justification must be sought for in the next paragraph of this same section, which declares that “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” This is the only part of the constitution which has affinity to, or connexion with, the power in question. Let me then inquire whether the desired justification can be found here. The general rule is such, as I have read it from the constitution, that appointments to office must be made by the President “by and with the advice and consent of the Senate.” Under this rule, the President alone has no more authority to appoint without nominating to the Senate, than the Senate have to advise the appointment of one not nominated by him. The exception to this rule is contained in the clause I have just read. But to bring the case within the purview of this exception, and so to take it out of the operation of the rule, these three things must occur: There must be a vacancy—this vacancy must have happened—and this happening must have taken place during the recess of the Senate. Unless all these things concur, the President can find no support for the power he has exercised, in this exception. Now I undertake to show that, instead of the concurrence of all these events, not one of them existed on the 12th day of September, 1829, when these appointments were made by the President alone. Mr. President, as this constitution was certainly intended by its authors to be exhibited to the people, to the end that it might be read and understood by them, in order that, when understood, if approved, it might be adopted by them, I have ever believed that the true rule of construing it was to give to all its familiar terms their popular signification at the time of its adoption. In that sense, such terms were probably first used; in that sense, they were certainly afterwards understood; and, being adopted in that sense, their signification should ever afterwards remain unchanged. If this is not so, then indeed is the constitution “a mere nose of wax,” which may be pressed into any shape, not only by designing and ambitious statesmen, but by every drivelling philologist or moon-struck metaphysician who may choose to amuse himself by a dissertation upon the ever-varying meaning of words. Trying the provision I am now considering by this rule, I ask of every honorable Senator here present, if any doubt ever did exist among the people of the State he represents, as to the meaning of the terms “vacancy in office.” Throughout our whole land, their meaning was and is the same. Every where, and at all times, except in yonder public edifices, they have been considered as denoting an actually existing office, which, having been once filled, by some cause has afterwards lost its incumbent, and is so made vacant. The idea of actual vacancy, in mere possible offices, which never had been, and never might be filled, is much too subtle to have been suggested by the wisdom which dictated, and much too refined for
the common sense that adopted, this constitution. Original existing vacancy, in non-existing and merely potential offices, like original sin, is a mystery. Faith in revelation may oblige us to adopt the belief of the latter, but each surpasses the powers of unaided human reason; and if we yield assent to the former, like good Catholics we must say, Credo quia impossibile est. If, however, any doubt could exist as to the meaning of this term “vacancy,” when regarded alone, all such doubt must vanish when we examine its context, and consider it in connexion with the other words with which we find it here associated in the constitution. According to these, it is not every vacancy which the President may fill up without the advice and consent of the Senate, but such vacancies only as “may happen;” and which may happen too “during the recess of the Senate.” Now, according to the common signification of the term happen, it is never applied to denote certain events, but it is applicable to denote such occurrences only as casualty may produce, which are therefore either unforeseen, or if seen, as possible in themselves, are quite uncertain as to the time of their occurrence. We should not speak reverently certainly, should we say that the sun happens to rise, or that the tides happen to change. There is nothing fortuitous in these events; they are foreseen, foreknown, and must occur, until it pleases Him who has so ordained, to change the order of his own providence. With as little propriety might we say that our chief magistracy happens to be elective, or the tenure of our judicial offices happens to be during good behavior. These things too are pre-ordained, and must exist while the constitution remains unaltered. Yet we may well say of the death, resignation, removal, or disability of an officer, that it happens; because, even where the event is certain, the time of its occurrence is unknown and uncertain. But if we could refer this term “happen,” which denotes casualty only, to the occurrence of events preordained by the constitution itself, still the happening of such events must take place during the recess of the Senate, to enlarge the general power of the President. Then, if we could adopt as real this mere vision of existing vacancy in non-existing but possible offices, we should not aid him much by such a subtle refinement. For even if the office always existed potentially, it was always actually vacant, until it was once filled; and who can properly affirm of such an original and eternal vacancy, that it happened during the recess of the Senate, rather than during its session? Unless it happened during the recess of the Senate, however, the President has no power to fill it up without their advice and consent. Mr. President, this question is much too important, as I have shown, I think, for me to permit it to rest even here. What I have said, I should consider as sufficient upon any ordinary occasion; but I will endeavor to make it so plain, that there shall not remain a loop whereon to hang a doubt. It is a sound and obvious rule for the construction of every instrument, that where the same words are repeated in it, they must always receive the same interpretation. Therefore, whenever we can fix their signification beyond doubt, in any one instance, that meaning must ever afterwards be attached to them, when they again cecur, unless the context shall plainly show that they were used in a different sense. Now an inspection of the constitution will show that the words used in the clause I am now examining, have been used twice before in the same instrument. They are there used, too, under circumstances which defy doubt as to their signification; and their true interpretation has been fixed and settled, not only by the decisions of this body, but by the uniform and unvarying practice in all the States, from the year 1789 to this hour. In this practice, every one, and at all times, has