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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 --SIXTY-SIXTH DAY--THURSDAY, January 26, 1865.
OPEN SESSION.
The House met pursuant to adjournment, and was opened with prayer by Rev. Dr. Burrows.
The Chair laid before the House the report of the Commissioner of Patents; which was laid upon the table and ordered to be printed.
Also. a bill (H. R. 229) "to provide more effectually for the reduction and redemption of the currency," which had been returned from the Senate with an amendment.
The bill and amendment were referred to the Committee on Ways and means.
Mr. Sexton, from the Committee on Post-Offices and Post-Roads, to whom had been referred the Senate bill (S. 158) "appropriating, for the use of the Post-Office Department, certain moneys deposited by postmasters with the depositaries of the Government created under the act approved February Seventeenth, eighteen hundred and
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sixty-four," reported back the same with the recommendation that it do pass.
The question being on postponing the bill and placing it on the Calendar,
It was decided in the negative.
The House resolved itself into Committee of the Whole to consider the bill, Mr. Clopton in the chair; and having spent some time therein, the committee rose and reported, through their Chairman, that the committee had had the subject referred to them under consideration and had instructed him to report the bill back with the recommendation that it do pass.
The bill was read a third time and passed, and the title was read and agreed to.
Mr. Herbert, from the Committee on Claims, to whom had been referred
A bill "for the relief of Marcos Radisch,"
reported back the same with the recommendation that it do lie upon the table; which was agreed to.
Mr. Smith of North Carolina, from the same committee, reported
A joint resolution "for the relief of John D. Southerland;"
which was read a first and second time, postponed, and placed upon the Calendar.
Mr. Smith of North Carolina, from the same committee, submitted a report adverse to the memorial of the proprietors of the Richmond House; which was laid upon the table.
Mr. Smith of North Carolina, from the same committee, reported
A joint resolution "for the relief of the Virginia Mechanics' Institute;"
which was read a first and second time.
The question being on postponing the joint resolution,
It was decided in the negative.
The joint resolution was engrossed, read a third time, and passed, and the title was read and agreed to.
Mr. Smith of North Carolina, from the same committee, submitted an adverse report in the case of Capt. J. W. Hinsdale; which was laid upon the table.
Mr. Smith of North Carolina, from the same committee, reported
A bill "to provide for the reissue of bonds and certificates of indebtedness of the Confederate States in certain cases;"
which was read a first and second time.
The question being on postponing the bill and placing it on the Calendar,
It was decided in the negative.
Pending the question on the engrossment and third reading of the bill,
A message was received from the Senate, by Mr. Nash, their Secretary; which is as follows, viz:
Mr. Speaker: The President of the Confederate States having returned to the Senate the bill (S. 142) entitled "An act to increase the number of acting midshipmen in the Navy, and to prescribe the mode of appointment," with his objections to the same, the Senate proceeded to reconsider the bill; and
Resolved, That the bill do pass, two-thirds of the Senate agreeing thereto.
I am directed by the Senate to 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.
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The Senate insist on 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, ask a conference on the disagreeing votes of the two Houses thereon, and have appointed Mr. Semmes, Mr. Graham, and Mr. Oldham managers at the said conference on their part.
Proceedings of the Senate on the bill (S. 142) returned by the President with his objections:
In Senate, January 25, 1865.
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; and
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.
Attest:
JAMES H. NASH, Secretary.
The Chair laid before the House the message of the President; which was read as follows, viz:
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 prescribe 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 offices 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 the power to "choose their other officers."
By the act now before me, however, the two Houses empower their respective members to "choose" officers 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.
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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 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 settled by the third section of the act of April 21, 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 appointed 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 House then 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.
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Mr. Akin moved to refer the bill to the Committee on the Judiciary, and that the message be printed.
Mr. McMullin moved that the bill be postponed until Monday next.
The motion to postpone was lost.
The question recurring on the motion to refer and print,
It was decided in the negative.
Mr. Menees called the question; which was ordered.
The question being put,
Shall the bill become a law, the objections of the President to the contrary notwithstanding?
The yeas and nays required by the Constitution were recorded,
Yeas: Baldwin, Batson, Baylor, Bell, Boyce, Burnett, Clark, Clopton, Cruikshank, Echols, Farrow, Foster, Fuller, Gaither, Gilmer, Goode, Hanly, Hartridge, Herbert, Hilton, Holder, Lamkin, J. M. Leach, J. T. Leach, Lester, Logan, McMullin, Miles, Moore, Orr, Perkins, Ramsay, Read, J. M. Smith, Smith of North Carolina, Staples, Triplett, Turner, Wickham, and Witherspoon.
Nays: Akin, Anderson, Atkins, Barksdale, Bradley, Branch, Eli M. Bruce, Horatio W. Bruce, Carroll, Chambers, Chilton, Chrisman, Cluskey, Colyar, Conrow, De Jarnette, Dickinson, Dupré, Ewing, Garland, Gray, Hatcher, Keeble, Lyon, Machen, Menees, Montague, Norton, Pugh, Russell, Sexton, Shewmake, Simpson, W. E. Smith, Villeré, and Wilkes.
Two-thirds not having voted in the affirmative, the bill was lost.
The Chair laid before the House
A bill (H. R. 336) "to authorize the establishment of an office of deposit in connection with the Treasury,"
which had been returned from the Senate with the message that the Senate adhered to its amendment and asked a committee of conference.
Mr. Perkins moved that the House insist on its disagreement to the amendment and grant the conference requested by the Senate; which motion prevailed.
On motion of Mr. Lyon, the House resolved itself into secret session; and having spent some time therein, resolved itself into open session.
Mr. Cruikshank, from the Committee on Enrolled Bills, reported as correctly enrolled
And the Speaker signed the same.
On motion of Mr. Chrisman,
The House adjourned until 11 o'clock to-morrow.
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SECRET SESSION.
The House being in secret session,
The Speaker signed as correctly enrolled
The House resolved itself into Committee of the Whole to consider the special order, viz:
The bill "to levy additional taxes for the year eighteen hundred and sixty-five for the support of the Government,"
Mr. Sexton in the chair: and having spent some time therein, the committee rose and reported, through their Chairman, that the committee had had the subject referred to them under consideration and had come to no conclusion thereon.
On motion of Mr. Chrisman,
The House resolved itself into open session.
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