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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journal of the Confederate Congress --WEDNESDAY, January 25, 1865.
OPEN SESSION.
A message from the House of Representatives, by Mr. Dalton:
Mr. President: The House of Representatives have passed bills and a joint resolution of the following titles, in which they request the concurrence of the Senate:
The following message was received from the President of the Confederate States, by Mr. B. N. Harrison, his Secretary:
To the Senate of the Confederate States of America:
I feel constrained to return to the Senate, without my approval, an act which originated in your honorable body, entitled "An act to increase the number of acting midshipmen in the Navy, and to provide the mode of appointment."
The act provides that the additional acting midshipmen "shall be appointed under the regulations prescribed by the Secretary of the Navy, as follows: One from each Congressional district, upon the recommendation of the Representative in Congress; two at large from each State, upon the recommendation of the Senators thereof, respectively, and ten at large by the President."
The Constitution, in the second article, second section, second clause, after giving to the President power to nominate, and by and with the advice and consent of the Senate to appoint all officers of the Confederate States whose appointments are not otherwise provided for, adds, "but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
The framers of the Constitution, in defining the powers of the several departments of the Government, took care to designate the particular class of officers which the two Houses of Congress may fill, and thus excluded the idea of power to make selections for any others.
By the fifth clause of Article I, section 2, the special power is given to the House of Representatives "to choose their Speaker and other officers," the word "their" being applicable not only to the Speaker, but to the "other officers."
In the third section of the same article the Senate is provided with a President not chosen by themselves, to wit, the Vice-President of the Confederate States, and is then vested with power to "choose their other officers."
By the act now before me, however, the two Houses empower their respective members to "choose" offices that are not "their officers" but officers of the Executive Department of the Government.
The language is not susceptible of any other meaning. The acting midshipmen "shall be appointed upon the recommendation" of the Representatives or Senators, as the case may be.
But the Constitution, by granting to Congress no other power over officers created by law than that of vesting the appointment "in the President alone, in the courts of law, or in the heads of departments," thus withholds from that branch of the Government any participation in such appointments.
But it may be remarked that this act gives the power of making the proposed appointments not to Congress as a body, but to the individual members of the two Houses, and that it is thus in conflict with the spirit and intent of the first clause of the sixth section of the first article of the Constitution, which enumerates the privileges accorded to Representatives and Senators individually. These privileges are carefully restricted to such as are necessary to enable them to discharge their duties as legislators.
All other rights, powers, and privileges granted to Congress by the Constitution are conferred on the body collectively, or on one of the two Houses.
The power to make selections for appointment to office is nowhere accorded in that instrument to the Senators and Representatives individually; and it is believed to be an unquestioned principle of constitutional law that no legislation can add to the
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power vested by the Constitution in any member of any one of the three departments of Government.
The power of Congress to vest, by law the appointment of inferior officers in the President alone, or in the heads of departments, would seem to include a power to restrict, limit, or partially confer the authority, or to divide it between several departments, provided they be those which may constitutionally exercise the function. But if the view of the Constitution which has been presented be correct, it is clear that the Congress can not vest in itself any right to a participation in the selection of officers of any class, save those of the two Houses. The language of the act organizing the Navy is sometimes cited to support the opinion that acting midshipmen are not officers, but employees.
In the first section of that act the President is authorized to appoint certain commissioned officers, and to "employ as many masters, midshipmen, engineers, naval constructors, boatswains, gunners, carpenters, sailmakers, and other warrant and petty officers and seamen as he may deem necessary," etc.
If it were conceded that acting midshipmen are not officers, the bill would not on that account be the less liable, in my judgment, to the objections above set forth; for it is as little in accordance with the letter and the spirit of the Constitution for the members of Congress to participate in choosing employees as in choosing officers for the executive or judicial departments.
It is repugnant to the whole theory of our republican institutions, which are based on the fundamental idea of independent and distinct functions in each of the departments of Government--the Legislative, Executive, and Judicial; and evil consequences must result from any departure from this principle.
But in no just sense can it be maintained that an acting midshipman is not an officer of the Navy. The very clause in the law just referred to implies that he is a "warrant officer;" but if there be doubt as to this, the question is decided by the third section of the act of 21st April, 1862, which declares that "the warrant officers shall be as follows: Twenty passed midshipmen, one hundred and six acting midshipmen," etc.
The commissioned officer is appointed by and with the advice and consent of the Senate; the next grade, the warrant officer, belongs to that class of inferior officers which according to the Constitution may be established by law, and appointee by the President alone, or the head of a department.
The midshipman is of this class. His appointment is authorized by law and his promotion provided for by regulations. He can not be discharged or dismissed from service at the pleasure of his commander, nor without delinquency on his part, as a mere employee for temporary service.
His name is placed in the Navy Register, and the proper record kept of his entry into service, to determine his rank, and in all relations to officers and seamen he is entitled to be, and is, actually treated as an officer of the Navy.
The bill is returned in no spirit of unwillingness to receive the advice and recommendations of members of Congress, which are recognized to be entitled to special consideration, but from a sense of duty to constitutional obligations.
JEFFERSON DAVIS.
January 23, 1865.
The message was read.
The Senate proceeded to reconsider the bill (S. 142) to increase the number of acting midshipmen in the Navy, and to prescribe the mode of appointment, returned by the President with his objections; which bill is in the following words:
An act to increase the number of acting midshipmen in the Navy, and to prescribe the mode of appointment.
The Congress of the Confederate States of America do enact, That the number of acting midshipmen in the Navy shall be increased to one hundred and forty-two, who shall be appointed under the regulations prescribed by the Secretary of the Navy, as follows: One from each Congressional district, upon the recommendation of the Representative in Congress; two at large from each State, upon the recommendation of the Senators thereof, respectively, and ten at large by the President.
I certify that this act originated in the Senate.
JAMES H. NASH,
Secretary.
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On the question,
Shall this bill pass, the objections of the President to the contrary notwithstanding?
The vote having been taken by yeas and nays, as required by the Constitution,
Those who voted in the affirmative are,
Messrs. Baker, Brown, Burnett, Garland, Graham, Haynes, Henry, Johnson of Missouri, Maxwell, Oldham, Semmes, Sparrow, Walker, Watson, and Wigfall.
Those who voted in the negative are,
Messrs. Hill, Hunter, and Vest.
So it was
Resolved, That this bill pass, two-thirds of the Senators present voting in favor thereof.
On motion by Mr. Brown,
Ordered, That the Secretary communicate the said bill, the message of the President returning the same to the Senate with his objections, and the proceedings of the Senate thereon, to the House of Representatives.
The bills and joint resolution received this day from the House of Representatives for concurrence were severally read the first and second times; and
Ordered, That the bill numbered 346 be referred to the Committee on Military Affairs; that the bills numbered 351 and 352 be referred to the Committee on Finance; and that the bill numbered 348 and the joint resolution numbered 22 be referred to the Committee on the Judiciary.
The Senate proceeded to consider their amendment, disagreed to by the House of Representatives, to the bill (H. R. 336) to authorize the establishment of an office of deposit in connection with the Treasury; and,
On motion by Mr. Semmes,
Resolved, That the Senate insist on their amendment, disagreed to by the House of Representatives, to the said bill, and ask a conference on the disagreeing votes of the two Houses thereon.
On motion by Mr. Semmes,
Ordered, That the committee of conference on the part of the Senate be appointed by the President; and
Mr. Semmes, Mr. Graham, and Mr. Oldham were appointed.
Ordered, That the Secretary inform the House of Representatives thereof.
Mr. Sparrow, from the Committee on Military Affairs, reported
A bill (S. 168) to authorize the appointment of a commissary-general, with the rank of a brigadier-general;
which was read and passed to a second reading.
On motion by Mr. Caperton,
The Senate resolved into secret legislative session.
The doors having been opened,
On motion by Mr. Sparrow,
The Senate adjourned.
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SECRET SESSION.
Mr. Caperton, from the select committee appointed by the two Houses to inquire into our present and future means of public defense, submitted a report (No. 6); which was read.
On motion by Mr. Sparrow,
The Senate resolved into executive session.
EXECUTIVE SESSION.
The following messages were received from the President of the Confederate States, by Mr. B. N. Harrison, his Secretary:
1.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate the officers on the accompanying list to the grades affixed to their names, respectively.
JEFFERSON DAVIS.
No. 166.]War Department, Confederate State of America,
Richmond, January 21, 1865.
Sir: I have the honor to recommend the following nominations for appointment in the Provisional Army of the Confederate States of America:
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jeffereson Davis,
President, etc.
2.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate Capt. W. W. Barrett, of Texas, to be promoted to major in the Quartermasters Department, Provisional Army of the Confederate States of America.
JEFFERSON DAVIS.
No. 165.]War Department, Confederate States of America,
Richmond, January 21, 1865.
Sir: I have the honor to recommend the nomination of Capt. W. W. Barrett, of Texas, to be promoted to major in the Quartermaster's Department, Provisional Army of the Confederate States of America, report for duty to Gen. E. K. Smith, to rank from January 6, 1865.
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
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3.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate the officers on the accompanying list to the grades affixed to their names, respectively.
JEFFERSON DAVIS.
No. 168.]War Department, Confederate States of America,
Richmond, January 21, 1865.
Sir: I have the honor to recommend the following nominations for appointment in the Provisional Army of the Confederate States of America:
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
4.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate the officers on the accompanying list to the grades affixed to their names, respectively.
JEFFERSON DAVIS.
No. 167.]War Department, Confederate States of America,
Richmond, January 21, 1865.
Sir: I have the honor to recommend the following nominations for promotion in the Provisional Army of the Confederate States of America:
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I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
5.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate Capt. Isaac Shelby, of Kentucky, to be promoted to major in the Subsistence Department, Provisional Army of the Confederate States of America.
JEFFERSON DAVIS.
No. 159.]War Department, Confederate States of America,
Richmond, January 17, 1865.
Sir: I have the honor to recommend the nomination of Capt. Isaac Shelby, of Kentucky, to be promoted to major in the Subsistence Department, Provisional Army of the Confederate States of America, for duty in Department of Western Virginia and East Tennessee, to rank from January 14, 1865.
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
6.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate Col. G. G. Dibrell, of Tennessee, to be a brigadier-general in the Provisional Army of the Confederate States of America.
JEFFERSON DAVIS.
No. 170.]War Department, Confederate States of America,
Richmond, January 24, 1865.
Sir: I have the honor to recommend the nomination of Col. G. G. Dibrell, of Tennessee, to be a brigadier-general in the Provisional Army of the Confederate States of America, to command a new cavalry brigade, Army of Tennessee, to rank from July 26, 1864.
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
7.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate W. M. Inge, of Mississippi, to be colonel Tenth Mississippi Cavalry Regiment, in the Provisional Army of the Confederate States of America.
JEFFERSON DAVIS.
No. 160.]War Department, Confederate States of America,
Richmond, January 17, 1865.
Sir: I have the honor to recommend the nomination of W. M. Inge of Mississippi, to be colonel Tenth Mississippi Cavalry Regiment, in the Provisional Army of the Confederate States of America (the regiment formed, by special order, of unattached companies), to rank from January 17, 1865.
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
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8.]Executive Department, Confederate States of America,
Richmond, January 24, 1865.
To the Senate of the Confederate States:
Agreeably to the recommendation of the Secretary of War, I nominate Capt. C. W. Grandy, jr., of Virginia, to be promoted to major in the Quartermaster's Department, Provisional Army of the Confederate States of America.
JEFFERSON DAVIS.
No. 169.]War Department, Confederate States of America,
Richmond, January 24, 1865.
Sir: I have the honor to recommend the nomination of Capt. C. W. Grandy, jr., of Virginia, to be promoted to major in the Quartermaster s Department, Provisional Army of the Confederate States of America, for duty with Kirkland's brigade, Army of Northern Virginia, to rank from January 19, 1865.
I am, sir, respectfully, your obedient servant,
JAMES A. SEDDON,
Secretary of War.
To His Excellency Jefferson Davis,
President, etc.
The messages were severally read.
Ordered, That they be referred to the Committee on Military Affairs.
On motion by Mr. Sparrow,
The Senate resolved into open legislative session.
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