sideration of the bill to authorize the Secretary of the Treasury to subscribe, in behalf of the United States, for seven hundred and fifty shares in the capital stock of the Chesapeake and Delaware Canal, was postponed to Monday next.

Mr. VARNUM presented the petition of George Ulmer, stating that he was appointed by the President of the United States to command a regiment of volunteers; but, for reasons as yet unknown, he was discharged from the service, upon which he has craved and obtained a court of inquiry, the expenses attending which will fall very heavy on him, being out of service; and praying that the same pay and emoluments may be allowed him, until a decision shall take place, as were allowed him while in service; and the petition was read, and referred to the Secretary for the Department of War, to consider and report thereon to the Senate.

The Senate resumed, as in Committee of the Whole, the bill, entitled "An act for the relief of Henry Fanning;" and it was ordered to the third reading.

The amendment to the bill, entitled "An act for the relief of James Crawford," was read a third time as amended, and passed.

The bill, entitled "An act giving pensions to the orphans and widows of persons slain in the public or private armed vessels of the United States," was read a third time, and passed.

The Senate resumed, as in Committee of the Whole, the consideration of the bill to amend the act, entitled "An act to provide for calling forth

MARCH, 1814.

Mr. TAYLOR, from the committee appointed to consider the subject, reported a bill for the relief of Joseph Brevard, and the bill was read, and passed to the second reading.

Mr. GAILLARD presented the memorial of the officers of the United States Navy, serving on the Lakes, on the inadequacy of their pay on that station; which was read, and referred to the Committee on Naval Affairs, to consider and report thereon by bill or otherwise.

The bill to establish an additional military academy was read the second time.

The bill, entitled "An act for the relief of Edwin T. Satterwhite, late purser of the Vixen," was read the second time, and referred to the Committee on Naval Affairs, to consider and report thereon.

The bill, entitled "An act concerning Shawneetown," was read the second time, and referred to the committee appointed the 4th of February, on the petition of Thomas Cooper and others, to consider and report thereon.

The bill, entitled "An act for the relief of Henry Fanning," was read a third time, and passed.

Mr. FROMENTIN presented the resolutions of the Legislature of the State of Louisiana, instructing their Senators in Congress on the subject of indemnification for the disbursements of certain individuals in taking possession of a part of that State in the year 1810; and the resolutions were read, and referred to a select committee, to consider and report thereon by bill or othBROWN, were appointed the committee.

press insurrections, and repel invasions; and, after debate, the Senate adjourned.

FRIDAY, March 4.

Mr. MASON, from the committee appointed to consider the subject, reported a bill authorizing the purchase of a library for the use of the judges of the Supreme Court of the United States; and the bill was then read, and passed to the second reading.

The PRESIDENT communicated the report of the Secretary for the Department of Treasury, made in conformity with the sixth section of the act passed on the 1st of May, 1810, entitled "An act fixing the compensation of public Ministers and Consuls residing on the coast of Barbary, and for other purposes;" and the report was read. The bill to fix the compensation of the clerks employed in the offices of the Secretary of the Senate and Clerk of the House of Representatives, was read the second time.

Mr. GAILLARD, from the Committee on Naval Affairs, reported a bill authorizing an augmentation of the marine corps; and the bill was read, and passed to the second reading.

Mr. ANDERSON, from the joint committee appointed to ascertain when the two Houses can be adjourned without detriment to the public service, reported, as their opinion, that they may be adjourned on Monday, the 11th day of April next; and the report was read.

On motion, by Mr. SMITH, the further consideration of the bill to amend the act, entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," was postponed to Tuesday next.

A message from the House of Representatives informed the Senate that the House have passed the bill which originated in the Senate, entitled "An act to incorporate a Fire Insurance Company in the town of Alexandria, in the District of Columbia," with amendments; in which they request the concurrence of the Senate.

They have passed a bill, entitled "An act to authorize a loan for a sum not exceeding twentyfive millions of dollars;" in which bill they request the concurrence of the Senate.

The bill last brought up for concurrence was read, and passed to the second reading.

MONDAY, March 7.

Mr. BIBB, of Georgia, submitted the following resolutions for consideration:

Resolved, That the President of the United States be requested to cause to be laid before the Senate such information as he may possess, calculated to show what has been the practice of Great Britain concerning her native subjects naturalized in other countries and taken in arms against her; also, what is the general practice of the nations of Europe relative to the naturali

Resolved, That the President of the United States be requested to cause to be laid before the Senate such

SENATE.

condemned as lawful prize to the captors; and that, in consequence of various misfortunes sustained by the owners and crew of the Argus, they pray that half of the moiety of the proceeds of said prize, which has been paid paid into the Treasury of the United States, may be granted to them; and the memorial was read, and referred to the Committee on Naval Affairs, to consider and report thereon by bill, or otherwise.

Mr. ROBERTS presented the memorial of James

has been the conduct of Great Britain relative to American seamen on board her ships of war at and since the .commencement of the war with the United States.

Mr. GOLDSBOROUGH presented the memorial of John R. Plater and others, the committee appointed by the citizens of St. Mary's county, in the State of Maryland, representing the peculiar grievances under which they labor in relation to the existing war, and praying effectual redress, as is stated in the memorial; which was read, and referred to the Committee on Military Affairs, to consider and report thereon by bill, or otherwise. Mr. ROBERTS presented the memorial of Jonathan S. Smith, of the city of Philadelphia, stating that in the year 1812 he resided at the city of Algiers, in Barbary, for commercial purposes; that, on the 21st July, the Consul General of the United States informed him of an order issued by the Dey, requiring the departure from that Regency of all American citizens by the 23d of the same; and that by this short notice he was obliged to abandon a quantity of coffee, there being no vessel in port in which he might ship it; and praying indemnity, inasmuch as the 18th article of the Treaty of Peace between the two Governments was violated; and the memorial was read, and referred to the Secretary for the Department of State, to consider and report thereon to the

Senate.

The Senate resumed the consideration of the amendments of the House of Representatives to the bill, entitled "An act to incorporate a Fire Insurance Company in the town of Alexandria, in the District of Columbia," and concurred therein. The joint resolution authorizing the President of the Senate and Speaker of the House of Representatives to close the present session by adjourning their respective Houses on Monday, the 11th day of April next, was read the second time, and the further consideration thereof postponed to Monday next.

The bill authorizing the purchase of a library for the use of the judges of the Supreme Court of the United States was read the second time.

Mr. VARNUM presented the petition of John Brazer, of Boston, in behalf of himself as part owner, and as agent for the other owners and crew, of the letter-of-marque brig Argus, stating that the said brig captured the British brig Atlantic with a cargo, which prize was afterwards recaptured by a British cruiser and carried to Halifax; from thence she proceeded on her destined voyage for Cork, but was captured by the United States frigate Congress and sent to Boston, where she was

a liquid combustible, applied to public use, and for services rendered, as is stated at large in the memorial; which was read, and referred to the Committee on Military Affairs, to consider and report thereon by bill, or otherwise.

The bill for the relief of Joseph Brevard was read the second time.

The bill authorizing an augmentation of the Marine Corps was read the second time.

The bill, entitled "An act to authorize a loan for a sum not exceeding twenty-five millions of dollars," was read the second time, and referred to a select committee, to consider and report thereon; and Messrs. KING, GILES, and ROBERTS, were appointed the committee.

A message from the House of Representatives informed the Senate that the House have passed the bill which originated in the Senate, entitled "An act in addition to an act, entitled An act allowing a bounty to the owners, officers, and crews, of the private-armed vessels of the United States," with amendments, in which they request the concurrence of the Senate. They have passed a bill, entitled "An act authorizing the President to cause to be built or purchased the vessels therein described;" a bill, entitled " An act making appropriations for the support of the Military Establishment of the United States for the year 1814;" also a bill, entitled "An act making appropriations for the support of the Navy of the United States for the year 1814." They have also passed a joint resolution fixing the time for an adjournment of the present session of Congress; in which bills and resolution they request the concurrence of the Senate.

The three bills and joint resolution last brought up for concurrence were read, and passed to the second reading.

The amendments of the House of Representatives to the bill, entitled "An act in addition to an act, entitled 'An act allowing a bounty to the owners, officers, and crews, of the private-armed vessels of the United States," were referred to the Committee on Naval Affairs, to consider and report thereon.

Mr. GILES presented the memorial of William Fowle and others, justices of the peace, and other citizens of the county of Alexandria, in the District of Columbia, stating, as their opinion, that the prayer of the memorial of the justices of the peace for the District of Columbia, presented the 18th ultimo, praying a revision of the laws for the collection of debts under twenty dollars, and redress of grievances, is unreasonable and ought not to be granted, for reasons stated at large in

a

pointments Congress may by law vest in the President alone, in the courts of law, or in the heads of departments. The depositing of this power of appointment in these two great departments of Government was, from the very nature and constitution of one of them, subject to inconvenience. The President, at all times and in all places, contains, within his own person, all the powers and authorities of his high office. This department is always in existence.

The Senate consists of various members, having no power or authority, but when legally assembled together, and acting in a body, under one head, and with their recording officers. They were neither expected nor intended to be always in session.

Vacancies in office might happen during their

recess.

To guard against a failure of the public service, from this circumstance, the Constitution provides a remedy, taking especial care that the remedy shall be no greater, than to relieve against the mischief that was apprehended.

To this end, it declares that the President, one of these departments, a portion of this depository of the general authority of appointment, shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at their next session.

The power of appointment is vested, conjointly, in two branches of the Government. A case is described, in which one branch may, under special circumstances, exercise a modified power. What is that case? It is the case of a vacancy in an office, a vacancy of a certain and definitive character, viz: a vacancy that may happen during the recess of the Senate. If the vacancy happen at another time, it is not the case described by the Constitution; for that specifies the precise space of time wherein the vacancy must happen, and the times which define this period bring it emphatically within the ancient and wellestablished maxim: "Expressio unius est exclusio alterius."

The reason why the Constitution adopts this precise language and so strictly limits the case, is evident from the spirit and intention of that instrument, in the distribution of the powers thereby created and delegated.

delegated.

The intent of the Constitution was to vest the power of appointment in two departments of the Government. It would defeat its own purpose, then, were it to authorize one of these departments to exercise this power, except in the specified case in which the public interest may require immediate action, and the other could not be convened seasonably for this purpose.

SENATE.

could not be said to have happened during the recess; that is, within a period which, ex vi terminorum, excludes the very time when it did happen.

If a vacancy happen in an office, the office must have been before full; for, to assert that a vacancy has happened, necessarily implies the fact, that such office had previously an incumbent-that it was before full. If a vacancy exist prior to, it does not happen in the recess of the Senate. Therefore, for a vacancy to happen at any time in an office, that office must have been full at some time previous to the period when it did happen; for a vacancy to happen during the recess of the Senate, the office must have been full during their session prior to, and at the commencement of their recess. Were it not for the precision of language used in this grant to the President, and the unavoidable construction thereof, a great and manifest object of the Constitution, viz: the vesting the power of appointment in two great organs of the Government, the President and the Senate, might have been totally defeated, by an assumption of the whole power by the President.

Vacancies exist in all offices, however created, until persons are appointed to fill them.

If an office had been created by law, or otherwise, and brought into existence during the session of the Senate, it would be only for the President to wait until their recess to commission a person to fill the vacant office, prefer his name to the Senate at their next session, and a short time before their recess. If disapproved, he may be re-commissioned immediately on the adjournment, and the same course be pursued at the subsequent as at the preceding session. In this way an officer, and, if one, all officers, might be commissioned and continued in office, as long as the President should please, not only without, but contrary to, the advice and consent of the Senate, a department of the Government constituted by the Constitution an essential branch in the power of appointment.

The second resolution is an assertion of the opinion of the Senate as to a mere matter of fact, which I presume will not be doubted, and although necesssary to effect the conclusion contained in the subsequent resolutions, needs no

comment.

The third seems to be an unavoidable corollary from the opinions and facts declared in the preceding resolutions and in this.

The observations before made preclude the necessity of much remark on this resolution, as most which would be pertinent now have already been presented to the consideration of the Senate. Some general notice, however, will be taken of the powers and authorities of the Constitution in regard to the subject under discussion.

vided for by the clause under examination. It is the case of a vacancy that may happen during the recess of the Senate.

If the vacancy existed during the session, it

In recurring to the Constitutional power of ap

branches of authority, to be exercised by two distinct bodies, acting independently of each other; but, in order to effectuate an appointment, both must concur.

The power of nomination is exclusively in the President. That of appointment is vested in the President and Senate jointly, and their advice and consent are as necessary to effect an appointment as the nomination of the President.

If the Constitution stopped at the end of the second paragraph of the section before quoted, the only inquiry, in order to determine on the necessity of the advice and consent of the Senate to an appointment, would be, whether the officer were an inferior officer, and whether Congress had by law vested the appointment in the President alone, in the courts of law, or in the heads of departments.

The answer in the case now under consideration is, Congress have made no law respecting it; and, further, that Congress have no power to vest the appointment of these officers in any one, they not being inferior officers.

If Congress have no power to vest this appointment in the President alone, it would seem free from all doubt, that the President could not rightfully exercise such an authority; and equally so, that the Senate could not surrender their authority, or acquiesce in its exercise by another. The Senate is a trustee for the benefit of the public, of all the powers vested in them. Wherever a power is vested in a trustee, there is a correspondent duty to exercise such power, and not to surrender it to another.

It will not be amiss, in considering this subject, to keep in view how sacredly the people intended to guard this right, and this duty in the Senate, by not permitting that body, even with the concurrence of the House of Representatives, and the President, to discharge itself of such a duty, by a surrender thereof to any other body.

it

If it be attempted to defend this appointment, will probably be on the last paragraph in this section, which authorizes the President to fill up all vacancies that may happen during the recess of the Senate. Sufficient has been said, I trust, to show that no authority can be derived from this clause.

It has been suggested, that the President has a right, by the Constitution, to create the office of Ambassadors and other public Ministers. An office is created by the Constitution, or by some power under it. Prior to its being so created, it does not exist. Whatever power is granted, as regards the appointment of public Ministers, is in that clause which says, "the President shall nominate, and, by and with the advice and consent of the Senate, shall appoint." If this, then, be the power of creating the office, it must be an actual appointment, and that can be only by the President and Senate. No other authority than what is embraced by these words can be found for the creation of the office of public Ministers, and this is not in the President alone, but in the President and Senate. In other words, the appointment makes the office, and the appointment cannot be made without the concurrent judgment of these two great organs of the Government.

Perhaps it may be more proper to consider the office of Ambassador and public Minister as ne

MARCH, 1814.

cessarily existing, from the relation of the United States, as an independent Power to other independent Powers, and thus recognised by the Constitution. Most offices are created by laws enacted by Congress. The practice has been, in cases where there is reason to apprehend that sufficient time will not be afforded, during the session of the Senate, for a proper selection of persons to fill such offices, and that inconveniences might result from del delay till their next session, to authorize the President to appoint such officers in the recess of the Senate. This course will be found to have been adopted early in the history of this Government. There is one act to this effect, of March 3. 1791, volume 1, page 301. This was in the second session of the 1st Congress. And the practice has been invariably continued since. An act is also made (March 3, 1799) to authorize the President to fill up vacancies that happen during the session of the Senate.

In these cases the offices undoubtedly exist, and the authority given to the President in them, goes on the presumption that there exists a vacancy at the time of passing the act, and that such vacancy will exist during the recess of the Senate. If nothing further were necessary, than the existence of an office, and a vacancy therein, to entitle the President, constitutionally, to make the appointment ent in the recess of the Senate, this authority, by law, would be unnecessary.

Congress, then, and this Senate, as one branch of Congress, seem to have settled the question, and one may fairly say, the President also; for if, in his opinion, the power of appointment to vacant offices was vested in him by the Constitution, he would hardly consent to receive that power from Congress, especially as thus receiving it must be construed into an acknowledgment that he could derive no such power immediately from the Constitution. The construction of an instrument made contemporaneously with, or shortly after, its formation, may be safely relied on for disclosing the intention of the framers, in the language they used.

It is well known that the first President of the United States was also President of the Convention that reported the Constitution; and that two of the heads of departments, and many of the first Senate, had been distinguished members of the same Convention.

It will be found, by a reference to the Executive Journals of the Senate during the Administration of President Washington, that at each session of the Senate, and shortly after their meeting, he sent messages on the subject of appointments during the recess, that left no doubt of his construction of the Constitution in this particular-vol. 1, pp. 236, 389; vol. 2, pp. 9, 76. In addition to the conclusion to be drawn from these messages of President Washington, a fact is stated by Chief Justice Marshall, in his Life of Washington, which shows distinctly the construction of that great man on his Constitutional powers, in a case analogous to the one under consideration; and that, notwithstanding the circumstances were urgent, he did not feel himself authorized to act