<DOC>
[Hinds Precedents -- Volume II]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_l.wais]
Chapter L.
PREROGATIVES OF THE HOUSE AS RELATED TO THE EXECUTIVE.\1\
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1. Expressions of opinion on public questions. Sections 1562-
1568.
2. Commendation or censure of the Executive. Sections 1569-
1572.
3. Advice and requests of the Executive. Sections 1573-1585.
4. Titles, gifts, and presence on the floor. Sections 1586-
1589.
5. Executive protests against action of House. Sections 1590-
1592.
6. Statutes empowering House to direct Executive officers.
Sections 1593-1594.
7. Power of appointment to office. Section 1595.
8. Inquiries into conduct of Executive. Section 1596.
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1562. The House, either alone or in concurrence with the Senate, has
by resolution expressed opinions or determinations on important public
questions.--On April 5, 1852 \2\ the House adopted the following
resolutions:
Resolved, That we recognize the binding efficacy of the compromises
of the Constitution, and believe it to be the intention of the people
generally, as we hereby declare it to be ours individually, to abide
such compromises, and to sustain the laws necessary to carry them out--
the provision for the delivery of fugitive slaves and the act of the
last Congress for that purpose included--and that we deprecate all
further agitation of questions growing out of that provision, of the
questions embraced in the acts of the last Congress known as the
compromise, and of questions generally connected with the institution
of slavery, as unnecessary, useless, and dangerous.
Resolved, That the series of acts passed during the first session of
the Thirty-first Congress, known as the compromise, are regarded as a
final adjustment and a permanent settlement of the question therein
embraced, and should be maintained and executed as such.
1563. On December 17, 1860,\3\ Mr. Owen Lovejoy, of Illinois,
introduced the following, which was considered and agreed to by a vote
of 135 yeas and no nays:
Whereas the Constitution of the United States is the supreme law of
the land, and its ready and faithful observance the duty of all good
and law-abiding citizens: Therefore
Resolved, That we deprecate the spirit of disobedience to that
Constitution wherever manifested, and that we earnestly recommend the
repeal of all statutes, including nullification laws so called, enacted
by State legislatures, conflicting with and in violation of that sacred
instrument, and the laws of Congress made in pursuance thereof; and it
is the duty of the President of the United States to protect and defend
the property of the United States.
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\1\ See Chapter LVII, sections 1856-1910, of Volume III for
precedents as to inquiries of the Executive. Chapter LXII, sections
1981-2000, of Volume III for relations of the House to the election and
inauguration of the President. Chapters LVIII to LXI, sections 1911 to
1980, for functions of the House at the electoral count. See also the
preceding chapter.
\2\ First session Thirty-second Congress, Journal, pp. 552-559,
Globe, pp. 976-983.
\3\ Second session Thirty-sixth Congress, Journal, p. 86; Globe, p.
109.
Sec. 1564
1564. On January 7, 1861,\1\ Mr. Garnett B. Adrian, of New Jersey,
offered the following resolution, which was agreed to by a vote of yeas
125, nays 56:
Resolved, That we fully approve of the bold and patriotic act of
Major Anderson in withdrawing from Fort Moultrie to Fort Sumter, and of
the determination of the President to maintain that fearless officer in
his present position; and that we will support the President in all
constitutional measures to enforce the laws and preserve the Union.
1565. On December 6, 1862,\2\ the House, on motion of Mr. Justin S.
Morrill, of Vermont, adopted a resolution declaratory of the duty of
soldiers, citizens, and officials to unite in putting down the
rebellion against the Government.
1566. On March 3, 1863,\3\ the House and Senate adopted a series of
concurrent resolutions setting forth the attitude of Congress on the
subject of intervention in the then existing war by foreign nations.
These resolutions do not appear in full in the Journal of the House.
1567. On December 5, 1865,\4\ Mr. Samuel J. Randall, of Pennsylvania,
offered the following resolution, which was agreed to, yeas 162, nays,
1:
Resolved, That, as the sense of this House, the public debt created
during the late rebellion was contracted upon the faith and honor of
the nation; that it is sacred and inviolate, and must and ought to be
paid, principal and interest; that any attempt to repudiate or in any
manner to impair or scale the said debt shall be universally
discountenanced and promptly rejected by Congress if proposed.
On January 28, 1878,\5\ the House passed a concurrent resolution from
the Senate declaring the coin bonds of the United States payable in
silver dollars of 412\1/2\ grains.
1568. On December 15, 1875,\6\ the House, by a vote of yeas 223, nays
18, agreed to the following resolution:
Resolved, That in the opinion of this House the precedent established
by Washington and other Presidents of the United States in retiring
from the Presidential office after their second term has become, by
universal concurrence, a part of our republican system of government,
and that any departure from this time-honored custom would be unwise,
unpatriotic, and fraught with peril to our free institutions.
1569. While the House in some cases has bestowed praise or censure on
the President or a member of his Cabinet, such action has at other
times been held to be improper.--On May 26, 1809,\7\ Mr. John Randolph,
of Virginia, after referring to the abandonment of the old relations of
Congress and the President wherein the President made an annual speech
to the Congress, and the House responded with an address, proposed the
following:
Resolved, That the promptitude and frankness with which the President
of the United States has met the overtures of the Government of Great
Britain toward a restoration of harmony and a free commercial
intercourse between the two nations, receives the approbation of this
House.\8\
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\1\ Second session Thirty-sixth Congress, Journal, p. 152; Globe, p.
280.
\2\ Third session Thirty-seventh Congress, Journal, p. 39; Globe, p.
14.
\3\ Third session Thirty-seventh Congress, Journal, pp. 572, 583;
Globe, p. 1541.
\4\ First session Thirty-ninth Congress, Journal, p. 17; Globe, p.
10.
\5\ Second session Forty-fifth Congress, Record, p. 627.
\6\ First session Forty-fourth Congress, Journal, p. 66.
\7\ First session Eleventh Congress, Journal, pp. 18, 34 (Gales &
Seaton ed.); Annals, pp. 92, 134, 156, 164, 187, 219.
\8\ This resolution of the House should be distinguished from a
concurrent expression of both Houses, such as the resolution passed by
House and Senate in 1809 condemning the British minister and pledging
Congress to stand by the Executive in repelling insults to the nation.
First session Eleventh Congress, Annals, pp. 481, 747, 1151.
Sec. 1570
A lengthy debate arose over this resolution, involving, besides the
merits of the question, the question of precedent and propriety. Mr.
Randolph cited two precedents in support of the propriety of the
resolution. The first was a paragraph in the address to the President,
adopted December 6, 1793, wherein the House expressed approbation of
the President's proclamation of neutrality in the existing conflict in
Europe.\1\ The second precedent was that of January 7, 1803, wherein
the House expressed, by a resolution, their determination to maintain
rights of navigation on the Mississippi, and expressed themselves as
relying with perfect confidence in the wisdom and vigilance of the
Executive.\2\
It was objected that the Constitution did not include such
expressions of opinion among the duties of the House; that their effect
would be to constitute the House censors; that it was not wise to
compliment officers whom it might be necessary to impeach, etc.
Finally, on June 2 \3\ the resolution was laid on the table, yeas 54,
nays 41.
1570. On January 18, 1819,\4\ the House, in Committee of the Whole,
began consideration of a resolution reported from the Committee on
Military Affairs, to whom had been referred so much of the President's
message as related to the conduct of the war against the Seminole
Indians by Gen. Andrew Jackson.
The resolution was as follows:
Resolved, That the House of Representatives of the United States
disapproves the proceedings in the trial and execution of Alexander
Arbuthnot and Robert C. Ambrister.
In the course of the long debate, which related chiefly to the moral
and political aspects of the question, several speakers touched on the
question as to the power of the House to adopt such a resolution. It
was urged on the one hand that the adoption of the resolution would be
to trench on the Executive authority, and on the other that the House
in the St. Clair and Wilkinson cases had settled its right to
investigate, and that the right to investigate involved the right to
censure.
The resolution was disagreed to, 108 to 62.
1571. On April 30, 1862,\5\ the House, by a vote of yeas 79, nays 45,
agreed to the following resolution reported from the select committee
appointed to investigate Government contracts:
Resolved, That Simon Cameron, late Secretary of War, by investing
Alexander Cummings with the control of large sums of the public money
and authority to purchase military supplies without restriction,
without requiring from him any guarantee for the faithful performance
of his duties, when the services of competent public officers were
available, and by involving the Government in a vast number of
contracts with persons not legitimately engaged in the business
pertaining to the subject-matter of such contracts, especially in the
purchase of arms for future delivery, has adopted a policy, highly
injurious to the public service, and deserves the censure of the
House.\6\
On December 16, 1862, the Senate, by a vote of yeas 38, nays 3, laid
on the table a resolution censuring James Buchanan, recently President
of the United States.\7\
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\1\ Journal, first session Third Congress, p. 13 (Gales & Seaton
ed.).
\2\ Journal, second session Seventh Congress, pp. 273-276 (Gales &
Seaton ed.); Annals, p. 339.
\3\ First session Eleventh Congress, Journal, p. 35 (Gales and Seaton
ed.); Annals, p. 219.
\4\ Second session Fifteenth Congress, Journal, pp. 239, 241; Annals,
pp. 583, 943, 1012, 1065,1079, 1088, 1135.
\5\ Second session Thirty-seventh Congress, Journal, p. 631; Globe,
pp. 1848, 1888.
\6\ This resolution was rescinded during a succeeding Congress.
\7\ Third session Thirty-seventh Congress, Globe, pp. 101, 102.
Sec. 1572
1572. On July 16, 1894,\1\ Mr. James B. Creary, of Kentucky, moved to
suspend the rules and agree to the following resolution:
Resolved, That the House of Representatives indorses the prompt and
vigorous efforts of the President and his Administration to suppress
lawlessness, restore order, and prevent improper interference with the
enforcement of the laws of the United States, and with the
transportation of the mails of the United States, and with interstate
commerce, and pledges the President hearty support, and deems the
success that has already attended his efforts as cause for public and
general congratulation.
This resolution, after debate, was agreed to, two-thirds voting in
favor thereof.
1573. The House has at times adopted resolutions requesting or
advising the Executive as to matters within the sphere of his duties.--
On April 9, 1818,\2\ the House, on the report of a select committee
appointed to investigate the circumstances of the imprisonment of an
American citizen by Spain, agreed to this resolution:
Resolved, That this House is satisfied that the imprisonment of
Richard W. Meade is an act of cruel and unjustifiable oppression; that
it is the right and duty of the Government of the United States to
afford to Mr. Meade its aid and protection; and that this House will
support and maintain such measures as the President may hereafter adopt
to obtain the release of the said R. W. Meade from confinement, should
such measures be proper and necessary.
1574. On February 22, 1823,\3\ the House agreed to this order:
Ordered, That * * * the petition of Jacob and Henry Schieffelin, of
New York, * * * be referred to the President of the United States; and
that he be requested to afford to the petitioners, in the prosecution
of their claim on the British Government, such assistance as the nature
of the case may require.
1575. On July 5, 1832,\4\ the House considered a joint resolution
from the Senate providing for a joint committee to wait on the
President and request him to appoint a public fast day, in order that
by humiliation and prayer the Asiatic cholera might be everted. This
resolution was debated at length, especially as the President had
informally expressed some sentiments unfavorable to Executive action in
the matter. Precedents of similar requests in 1812 and 1814 were cited.
Finally, after consideration and reference to a committee, the
resolution was, on July 14, laid on the table.
1576. On July 27, 1866,\5\ the House agreed to resolutions declaring
it to be the duty of the Executive Departments to proceed to the trial
of Jefferson Davis.
1577. On July 8, 1897,\6\ the Senate considered a simple resolution
directing the Secretary of State to collect through the diplomatic
representatives abroad information as to postal telegraph systems, etc.
On July 12 \7\ the resolution was agreed to; and thereafter the
Secretary of State obeyed the directions.
1578. On April 29, 1872,\8\ the House by resolution advised the
Executive as to the course to be pursued in the case of John Emilio
Houard, alleged to be a citizen of the United States, imprisoned in
Cuba.
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\1\ Second session Fifty-third Congress, Journal, p. 484; Record, p.
7544.
\2\ First session Fifteenth Congress, Journal, p. 442; Annals, pp.
1699-1713.
\3\ Second session Seventeenth Congress, Annals, pp. 1077-1087;
Journal, p. 249.
\4\ First session Twenty-second Congress, Journal, pp. 1020, 1182;
Debates, pp. 3859, 3879, 3914.
\5\ First session Thirty-ninth Congress, Journal, p. 1185.
\6\ First session Fifty-fifth Congress, Record, p. 2452.
\7\ Record, p. 2529.
\8\ Second session Forty-second Congress, Journal, pp. 755, 756;
Globe, p. 2818.
Sec. 1579
1579. Instance wherein the House by resolution expressed an opinion
as to the course of action which an executive officer should follow.--
On December 13, 1906,\1\ the House agreed to this resolution:
Resolved, That it is the sense of the House of Representatives that
hereafter, in printing reports, documents, or other publications
authorized by law, ordered by Congress or either branch thereof, or
emanating from the Executive Departments, their bureaus or branches,
and independent offices of the Government, the Government Printing
Office should observe and adhere to the standard of orthography
prescribed in generally accepted dictionaries of the English language.
1580. An opinion of the Attorney-General that neither House may by
resolution give a construction to an existing law which would be of
binding effect on an executive officer.--On August 23, 1854,\2\ Caleb
Cushing, Attorney-General of the United States, submitted to the
Secretary of the Interior, in relation to the claim of Isaac Bowman, an
opinion. The opinion states that--
On the 20th of February, 1854, the Senate passed the following
resolution, namely:
``Resolved, That the claim of Isaac Bowman, legal representative of
Isaac Bowman, deceased, for half-pay due his father under the act of
the general assembly of Virginia of May, 1779, be referred to the
Secretary of the Interior for liquidation under the act of Congress of
July 5, 1932, and that the Committee on Pensions be discharged from the
further consideration of the case.''
And on the 1st of July, 1854, the House adopted a resolution,
reported by the Committee on Revolutionary Claims, in the following
words, namely:
``Resolved, That the petition in the case of Isaac Bowman be referred
to the Secretary of the Interior for liquidation under the act of July
5, 1832, and that this committee be discharged from its further
consideration.''
Whereupon the question of law submitted to me for consideration is,
whether, on the supposition that the Secretary on a reexamination of
the case maintains his original opinion and believes the claim not to
be allowable under the provisions of the said act on the evidence
presented, is he bound to consider these two resolutions, or either of
them, as mandatory on him, and as compelling him to liquidate the claim
against his judgment of the right of the case?
It is impossible for me to conceive of any other than a negative
answer to this question.
When an act of Congress commands a head of Department to do a
particular thing, and the thing to be done is ministerial in its
nature--as to pay so much money to A. B.--then the head of Department
is bound in law to do the thing, and may be compelled by mandamus of
the circuit court. (Kendal v. United States, 12 Peters, 610.)
The same doctrine applies to a joint resolution, properly enacted,
which differs from an act of Congress only in form.
But if the tenor of the law be not mandatory of a mere ministerial
act to be done, then the head of Department acts according to his
discretion, in subordination always to his constitutional and legal
relation to the President of the United States. (Decatur v. Paulding,
14 Peters, 497.)
The reason of this must be apparent to the least reflection.
The act of a head of Department is, in effect, an act of the
President. Now, the Constitution provides for coordinate powers acting
in different and respective spheres of cooperation. The executive power
is vested in the President whilst all legislative powers are vested in
Congress. It is for Congress to pass laws, but it can not pass any law
which, in effect, coerces the discretion of the President, except with
his approbation, unless by concurrent vote of two-thirds of both
Houses, upon his previous refusal to sign a bill. And the Constitution
expressly provides that orders and resolutions, and other votes of the
two Houses, in order to have the effect of law, shall, in like manner,
be presented to the President for his approval, and if not approved by
him shall become law only by subsequent concurrence in vote of two-
thirds of the Senate and House of Representatives.
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\1\ Second session Fifty-ninth Congress, Record, pp. 369, 370.
\2\ Vol. 6, Opinions of the Attorneys-General, p. 680.
Sec. 1580
If, then, the President approves a law which imperatively commands a
thing to be done, ministerially, by a head of Department, his
approbation of the law, or its passage after a veto, gives
constitutionality to what would otherwise be the usurpation of
executive power on the part of Congress.
In a word, the authority of each head of Department is a parcel of
the executive power of the President. To coerce the head of Department
is to coerce the President. This can be accomplished in no other way
than by a law, constitutional in its nature, enacted in accordance with
the forms of the Constitution.
Of course, no separate resolution of either House can coerce a head
of Department unless in some particular in which a law, duly enacted,
has subjected him to the direct action of each; and in such case it is
to be intended that, by approving the law, the President has consented
to the exercise of such coerciveness on the part of either House.
For instance, the act of September 2, 1789, (1 Stat. L., p. 66),
renders it the duty of the Secretary of the Treasury to ``make report
and give information to either branch of the legislature, in person or
writing, as he may be required, respecting all matters referred to him
by the Senate or House of Representatives, or (and) which shall
appertain to his office.'' And in practice the same duty is imposed on
other heads of Department. But, except where otherwise provided by law,
every such communication of a head of Department to either House must
be understood to be made with the assent express or implied, of the
President. Suppose, for example, the House of Representatives should,
by vote, assume to require the Secretary of State to communicate to it
a copy of a draft of a treaty under negotiation, or his instructions to
some diplomatic agent of the Government; still, it is clear, he could
not do this except with permission of the President.
On the same principle, and with stronger reason, it is not in the
power of a separate resolution of either House to command or to control
the executive action of a head of Department--that is, of the
President--in the construction and execution of a general law of the
land.
It does not help the case, constitutionally speaking, if there should
happen to be a resolution of the same substance, or even of the same
identical words, passed by each House; for such separate resolutions
have not the form nor the responsibilities of enactment, according to
the rules of the two Houses, nor do they possess the conditions of a
law according to the Constitution.
Therefore, even if the two resolutions in Bowman's case were
mandatory in their terms, which they are not, yet they have not the
constitutional requisites of any authority, either mandatory or
directory, over the action of the Secretary.
Indeed, it seems little better than a mere truism to say that a
separate resolution of either House of Congress is not a law.
Whenever a general act is passed, like that for the payment of half-
pay to certain officers of the Virginia line, that is to say, a law
embracing a defined class of cases, and assigning to a head of
Department the executive duty of ascertaining the particular cases of
the class, and applying the law to them, in such case the terms of the
law constitute a rule for his government. It is incumbent on him, as on
every other citizen, to obey the law. To obey it, in him, is to execute
it according to its provisions, as conscientiously construed by him in
his best judgment, or if he doubt, then as he may be advised by the
Attorney-General. To do otherwise--that is, on the one hand to refuse
to apply the law to cases to which it is justly applicable, or on the
other to apply it to cases to which it is not justly applicable, is to
disobey, not to obey--to violate, not to execute--the constitutional
will of the legislative department of the Government.
It may happen that a claim shall rise which, according to the plain
terms of the law, is not within its provisions, or which is not proved
by the evidence which the law prescribes, and so is rejected by the
Secretary. In such a case the claimant can apply to Congress, and that
body may pass a private law for the relief of the party, dispensing
with its own conditions of applicability, or its prescribed rules of
evidence. But no such dispensing power resides in the Secretary.
Or the Secretary, in the exercise of his lawful discretion in
construing such a general act of Congress, may adopt a construction of
it which is deemed erroneous by the two Houses of Congress. In that
case they will pass a declaratory act, which, being approved by the
President or repassed after his refusal to approve it, constitutes a
new law for the government of the Secretary.
But the Constitution has not given to either branch of the
Legislature the power, by separate resolution of its own, to construe,
judicially, a general law or to apply it executively to a given case.
And its resolutions have obligatory force only so far as regards itself
or things dependent on its own separate constitutional power.
Sec. 1580
Any other view of the subject would result in the absurd conclusion
that a separate resolution of either House could repeal or modify an
act of Congress. For, as the Supreme Court well say, in one of the
cases before cited, a head of Department ``must exercise his judgment
in expounding the acts and resolutions of Congress under which he is
from time to time required to act.'' That exposition of the law,
conscientiously made by him, and with the aid of the law officer of the
Government, is the law of the case. If the question be one of judicial
resort, the exposition of the statute by the Supreme Court will
constitute the law. But if it be a mere executive question, then the
exposition of the particular Secretary, or of the Attorney-General, is
just as much the law, and, as such, binding on the conscience of the
head of Department as any other part of the statute, which may happen
to be of unquestionable import, and so not to require exposition. In
fine, it becomes the law--that is, the authorized construction of the
legal intendment of the act of Congress. That ascertained legal
intendment of a statute can not be authoritatively changed by a
separate resolution of either or of both Houses, but only by a new act
of Congress.
The conclusive test of the whole doctrine is to inquire whether the
Supreme Court of the United States would adjudge that the report of a
committee, or a resolution of either House, has the effect of
repealing, modifying, or conclusively construing an act of Congress. It
is perfectly clear that they would not. (Albridge v. Williams, 3
Howard, 9.)
It does not appear, in the case of Bowman, why the obvious and usual
course of proposing a law for his relief was not followed, provided the
two Houses of Congress would, on full consideration of his claim, in
the established legislative forms, have sanctioned the view of it,
which is implied by the passage of these resolutions in connection with
the reports of the Committees on Revolutionary Clams and on Pensions in
the case.
The Attorney-General then goes on to refer to an opinion of the
Attorney-General of March 27, 1849, in the case of Churchill Gibbs,
wherein the Attorney-General gives the opinion that a proper deference
to the legislative branch of the Government demanded that the executive
department should heed a resolution wherein the Congress had given a
construction of the existing law. Mr. Cushing then proceeded with his
argument in relation to this question, and says:
Most assuredly it can not be sound constitutional doctrine that a
declaratory resolution of either House, construing a general law, is
obligatory against the judgment of the Executive, and that it is the
duty of the Executive to yield its judgment in all such cases to the
mere opinion of the Senate or of the House of Representatives. Such an
assumption is contrary, as I have shown, to the plain letter and clear
spirit of the Constitution.
If it be said that, although a head of department be not absolutely
bound in law to yield up his own judgment, yet that, in the language of
the opinion under consideration, it is his duty so to do, out of
deference to both or either of the Houses, or to prevent the public
reproach of disagreement between the legislative and executive branches
of the Government, or for any other possible consideration of mere
expediency, I reply that the whole weight of the argument of expediency
is the other way; for the adoption of such a rule would inevitably tend
to the disorganization of the Government.
In the first place, the President is not bound to yield up his own
judgment, even to the most unequivocally expressed opinion of the two
Houses, in the form of a bill passed through all the solemnities of
constitutional enactment. But if the hypothesis under consideration be
maintainable, a separate resolution of either House will constrain the
Executive, when a bill, solemnly passed to be enacted, would not. Of
course, this idea would afford easy means of striking the veto power
and the rights of minorities out of the Constitution, and conferring on
a bare majority of the two Houses that legislative omnipotence which it
was one of the great objects of the Constitution to guard against and
avoid.
According to the letter of the Constitution, resolutions of the two
Houses, even a joint resolution, when submitted to the President and
disapproved by him, do not acquire the force of law until passed anew
by a concurrent vote of two-thirds of each House. On the present
hypothesis, the better way would be not to present the resolution to
the President at all, and then to call on him to accept it as law, with
closed eyes, and, however against law he may know it to be, yet to
execute it out of deference to the assumed opinion of Congress.
Sec. 1581
In the second place, the hypothesis puts an end to all the forms of
legislative scrutiny on the part of Congress. A declaratory law,
especially if it involve the expenditure of the public treasure, has
forms of legislation to go through to insure due consideration. All
these time-honored means of securing right legislation will pass into
desuetude if the simple acceptance of a resolution, reported by a
committee, is to be received as a constitutional enactment, obligatory
on all concerned, including the Executive.
In this way, instead of the revenues of the Government being subject
only to the disposition of Congress in the form of a law
constitutionally enacted, they will be transferred to the control of an
accidental majority, expressing its will by a resolution, passed, it
may be, out of time, and under circumstances in which a law duly and
truly representing the will of Congress could not have passed. And
thus, all those checks and guards against the inconsiderate
appropriation of the public treasure, so carefully devised by the
founders of the Government, will be struck out of the Constitution.
Where is the doctrine to stop? Will a declaratory resolution of one
House constitute a law, or must both Houses concur? Will one resolution
suffice? Or must there be several successive ones, cumulative one upon
the other? And what is to be done if opposing resolutions be passed by
the two Houses?
And by what intelligible ground of constitutional distinction is the
Executive to obey, out of deference, and against his judgment, a
separate resolution of either House on the subject of private claims,
and not on any other business of the Government? All general laws are a
rule comprehending particulars more or less numerous. The construction
of a law is, in part, the consideration of what particulars are
included within the rule; and the execution of the law is the
application of that rule to the particulars of ascertained inclusion.
If, by separate resolution of either House, a pension law or half-pay
law may be construed with conclusive legal effect, so may any other law
within the whole scope of the legislation of the United States.
Nay, instead of assuming it as a general rule of duty that the
Executive is to obey, as of course, out of deference, and against his
better judgment, a separate declaratory resolution of either House, we
should assume the contrary as a rule; because such a resolution is, on
its face, an attempt to coerce the conscience of the Executive by
extra-constitutional means; and because, if the resolution were
expressive of the true will of Congress, it may be presumed that it
would have been passed into a law according to the Constitution. I can
not readily conceive of any innovation so dangerous to good
legislation, and so well calculated to defeat the will of Congress
itself, as the setting up of a hasty vote or order of either House
accepting the report of a committee, and adopted out of time perhaps,
to have the force of law. Wherefore, it is most respectfully urged
that, in the interest of the legislative department of the Government,
not less than that of the executive, the doctrine supposed is wholly
inadmissible, even regarded in the light of expediency.
But, after all, is not our first duty that of humble submission to
the Constitution? Of what avail are arguments of expediency against the
positive injunctions of the Constitution? How can the consideration of
``deference'' to any human power, or of possible liability to
``reproach,'' justify, in a head of department, the deliberate
infringement of the Constitution? There is but one safe guide for any
of us, and that is the Constitution, and the laws under it duly enacted
by Congress.
A mere vote of either or of both Houses of Congress, declaring its
opinion of the proper construction of a general law, has, be it
repeated, in itself, no constitutional force or obligation as law. It
is opinion merely, and to be dealt with as such, receiving more or less
of deference, like other mere opinions, according to the circumstances.
1581. In cases where its investigations have suggested the
culpability of executive officers, the House has by resolution
submitted advice or request to the Executive.--On March 27, 1867,\1\
Mr. Calvin T. Hulburd, of New York, from the Committee on Public
Expenditures, reported the following:
Whereas Congress having determined to adjourn, there is not
sufficient time prior thereto for the Committee on Public Expenditures
to conclude its investigation of the administration of the New York
custom-house by Henry A. Smythe, in the manner indicated by the House,
although the committee having given Mr. Smythe two hearings, he has
expressed himself content therewith, unless the committee desires to
prosecute the investigation further; and whereas in the opinion of the
committee there is
-----------------------------------------------------------------------
\1\ First session Fortieth Congress, Journal, p. 126; Globe, pp. 255,
282, 394.
Sec. 1582
abundant affirmative testimony in the possession of the House of Henry
A. Smythe's unfitness to hold the office of collector; therefore
Resolved, That it is the sense of this House that Henry A. Smythe
should be removed from the office of collector of the port of New York,
and that a copy of this resolution and the testimony be transmitted to
the President of the United States.
When this course of action was proposed on March 21, it caused some
debate as to the power of the House to proceed in this way. It was
urged that the House might impeach, but that the appointment and
removal of subordinate officers was an Executive function.
The resolution and preamble were agreed to, yeas 68, nays 38.
1582. On March 24,1870,\2\ Mr. John A. Logan, of Illinois, from the
Committee on Military Affairs, reported the following:
Whereas it is in evidence before the Committee on Military Affairs of
this House, as well as admitted by Commander John H. Upshur, of the
Navy, that he paid the sum of $1,300 to one M.D. Landon, with a view of
having said money used in procuring the appointment of his son to the
Naval Academy at Annapolis: Therefore,
Be it resolved, That a copy of said evidence be transmitted to the
Secretary of the Navy, and that he be directed to convene a court-
martial for the purpose of putting said Commander Upshur on trial for
conduct unbecoming an officer.
After debate, and on motion of Mr. Logan, the word ``requested'' was
inserted in the place of ``directed,'' as being more appropriate.
Mr. James A. Garfield, of Ohio, then raised the question that it was
not becoming for the House to appear as prosecutor in one of the
Executive Departments, and therefore moved to amend the resolution so
that it should request the convening of a court of inquiry instead of a
court-martial. This amendment was disagreed to, yeas 71, nays 109.
The preamble and resolution were then agreed to as amended.
1583. On March 24, 1870,\2\ Mr. John A. Logan, of Illinois, from the
Committee on Military Affairs, reported the following:
Whereas the testimony presented to the House of Representatives on
the 16th instant, as taken by the Committee on Military Affairs in the
case of R. R. Butler, clearly shows that Gen. A. Schoepf, one of the
examiners in the Patent Office, was engaged in lending himself as a
medium through which money should pass for corrupt purposes: Therefore,
Resolved, That the evidence in said case be placed in the hands of
the Secretary of the Interior, and that he be requested at once to
remove said Schoepf from the position of examiner of patents, as an
improper person to have or hold so responsible a position under the
Government.
Mr. Horace Maynard, of Tennessee, proposed an amendment to request
the Secretary to institute an inquiry, instead of removing General
Schoepf.
The amendment was disagreed to, and the resolution was then agreed
to.
1584. On January 6, 1873,\3\ the House agreed to a resolution
requesting the President to cause the employment of two attorneys to
prosecute suit against the Credit Mobilier.
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, Journal, p. 521; Globe, p.
2191.
\2\ Second session Forty-first Congress, Journal, p. 523; Globe, p.
2194.
\3\ Third session Forty-second Congress, Journal, pp. 125-128; Globe,
p. 359.
Sec. 1585
1585. In 1842 the House, after discussion, abandoned a proposition to
pass on the authority of the President to appoint commissions of
investigation without the sanction of law.--On May 4, 1842,\4\ the
House proceeded to the consideration of the message from the President
of the United States of the 30th of April, ultimo, transmitting reports
of the commissioners appointed to examine into the affairs of the New
York custom-house. The question recurred on the motion of Mr. Henry A.
Wise of Virginia, that the said message, with all the documents which
accompany the same, be printed.
Mr. Joseph R. Underwood, of Kentucky, moved to amend the same by
adding as follows:
but, in printing the message and accompanying documents, this House
does not intend to approve or sanction the institution of this
commission, it being the opinion of this House that the President has
no rightful authority to appoint and commission officers to investigate
abuses, or to procure information for the President to act upon, and to
compensate such officers at public expense, without authority expressly
given by law.
This amendment was debated on May 5 and May 9, and again on June 8,
the constitutional aspects of the question being considered. On the
latter date, by a division of the question, a vote was taken first on
agreeing to this portion of the proposed amendment:
but, in printing the message and accompanying documents, the House does
not intend to approve or sanction the institution of this commission.
This portion was agreed to, yeas 86, nays 83.
Thereupon Mr. John Quincy Adams, of Massachusetts, saying that it was
time to get rid of the question, since the House had undertaken to
decide on the constitutional powers of the Executive, moved that the
whole subject be laid on the table.
This motion was agreed to, yeas 96, nays 76.
1586. The House has decided that a Vice-President succeeding to the
Presidency should be called ``the President'' without qualification.--
OnMay 31, 1841,\2\ at the organization of the House, Mr. Henry A. Wise,
of Virginia, offered the customary resolution authorizing the
appointment of a committee to join a similar committee on the part of
the Senate ``to wait on the President of the United States, and inform
him that quorums of the two Houses have assembled,'' etc.
Mr. John McKeon, of New York, moved to amend by inserting before the
word ``President'' the words ``Vice-President, now exercising the
duties of.''
After a discussion of the constitutional provisions relating to the
death of a President, and the duties of the Vice-President, the
proposed amendment was decided in the negative without division, and
the resolution as originally presented was agreed to.\3\
-----------------------------------------------------------------------
\1\ Second session Twenty-seventh Congress, Journal, pp. 784, 796,
930-932; Globe, pp. 476-478, 481, 482, 600.
\2\ First session Twenty-sixth Congress, Journal, p. 19; Globe, pp.
3, 4.
\3\ Vice-President Tyler had succeeded President Harrison, who had
died before the assembling of this Congress, which had been called
together by his proclamation. This was the first time that a Vice-
President had succeeded to the office.
Sec. 1587
1587. The proposition to have the heads of the Executive Departments
occupy seats on the Floor and participate in proceedings.--On April 6,
1864, Mr. George H. Pendleton, of Ohio, from a select committee \1\
submitted a report \2\ on the bill (H. R. 214) to provide that the
heads of the Executive Departments might occupy seats on the floor of
the House of Representatives.\3\ The committee entertained no doubt of
the power of Congress to pass the bill. Members of the Cabinet would
not become Members of the House any more than the contestant for a
seat, who was sometimes admitted to argue in his own behalf, or the
delegate from a Territory, who was admitted to debate, but not to vote,
by virtue of a statute. The law of 1787, organizing the Treasury
Department, provided that the Secretary of the Treasury--
shall make report and give information to either branch of the
legislature, either in person or in writing (as he may be required),
respecting all matters which may be referred to him by the Senate or
House of Representatives, or which shall appertain to his office.
The report cites the fact that on July 22, 1789, the Secretary of
Foreign Affairs, Mr. Jefferson, attended agreeably to order, and made
the necessary explanations.\4\ On August 22, 1789, the President of the
United States came into the Senate chamber, attended by General Knox,
Secretary of War, and laid before the Senate a statement of facts.\5\
Other instances in the first Congress are cited by the committee.
The committee proposed certain amendments to the rules to allow for
carrying out the provisions of the bill, which provided that Cabinet
officers might have seats on the floor with right to participate in
debate relating to their Departments, and that they should attend at
certain stated times to give replies to questions.
The committee agreed that Congress would, by such an arrangement, be
better informed as to measures of legislation, and that the influence
of the Executive Departments upon legislation would be open and
authorized instead of secret and unauthorized. The example of other
nations and the authority of Justice Story's Commentaries were cited in
support of this view.\6\
The bill was not acted on, but was debated at considerable length.\7\
1588. Presents to the President or other officers were formerly
placed at the disposal of Congress.--On January 6, 1834,\8\ President
Jackson, by message to the House of Representatives, communicated an
extract of a letter from R. J. Leib, consul of the United States at
Tangier, by which it appeared that Mr. Leib had received a present of a
lion and two horses from the Emperor of Morocco, which he held as
belonging to the United States. In this connection also the Presi-
-----------------------------------------------------------------------
\1\ Mr. Pendleton's associates, on this committee were Messrs.
Thaddeus Stevens, of Pennsylvania; Justin S. Morrill, of Vermont;
Robert Mallory, of Kentucky; John A. Kasson, of Iowa; James G. Blaine,
of Maine, and John Ganson, of New York.
\2\ First session Thirty-eighth Congress, House Report No. 43.
\3\ For text of this bill, see p. 8 of Report.
\4\ Annals, First Congress, vol. 1, p. 51.
\5\ Annals, First Congress, vol. 1, p. 66.
\6\ Second session Thirty-eighth Congress, Journal, pp. 149, 152,
177; Globe, pp. 419-424, 437-448.
\7\ It appears from the record of debates (Annals, first session
Fifth Congress, p. 458) that the Secretary of State was present at the
secret session of the House when the message relating to Senator
William Blount was considered, and that he gave an opinion to the House
relating to the pending question.
\8\ First session Twenty-third Congress, Journal, pp. 165, 373;
Debates, p. 2317.
Sec. 1589
dent called attention to the fact that the number of articles presented
to United States officials and deposited in the Department of State had
become a source of inconvenience.
The message was referred to the Committee on Foreign Affairs, and on
March 4 that committee made a report \1\ and was discharged from
further consideration of the subject.
The subject was revived at the next session, and on December 18,
1834,\2\ the Committee on Foreign Affairs made a report accompanying a
joint resolution (H. Res. No. 13), which became a law.
1589. On January 19, 1830,\3\ President Andrew Jackson transmitted a
message directed to both the House and Senate, which contained this
paragraph:
The accompanying gold medal, commemorative of the delivery of the
Liberator President of the Republic of Colombia from the daggers of
assassins, on the night of the 25th of September last, has been offered
for my acceptance by that Government. The respect which I entertain, as
well for the character of the Liberator President as for the people and
Government over which he presides, renders this mark of their regard
most gratifying to my feelings; but I am prevented from complying with
their wishes by the provision of our Constitution forbidding the
acceptance of presents from a foreign state by officers of the United
States; and it is, therefore, placed at the disposal of Congress.
The message was referred to the Committee on Foreign Affairs, and on
February 9 \4\ they reported this resolution, which was agreed to by
the House:
Resolved, That the medal recently offered to the acceptance of the
President of the United States by the President Liberator of Colombia
be deposited by the clerk in the Department of State.\5\
1590. A formal protest by the President against certain proceedings
of the House was declared a breach of privilege.--On August 30, 1842
\6\ a motion was made by Mr. John M. Botts, of Virginia, that the rules
in relation to the order of business be suspended, and that the written
communication from the President of the United States, received this
day, be now read. This motion passed in the affirmative, two-thirds
voting therefor, and the communication from the President of the United
States was then read.\7\ Thereupon Mr. Botts moved
-----------------------------------------------------------------------
\1\ Report No. 302, first session Twenty-third Congress. The
committee reviewed generally the subjects of presents to officials.
\2\ Second session Twenty-third Congress, Journal, pp. 107, 387;
Debates, pp. 762, 830.
\3\ First session Twenty-first Congress, Journal, p. 187.
\4\ Journal, p. 274.
\5\ In their report the committee say that this action is taken in
accordance with the precedents in similar cases. Report No. 170, first
session Twenty-first Congress. See also House Report No. 107, second
session Twenty-first Congress. In the late usage Congress is asked to
consent that the officer to whom the gift is sent may accept it; and
acts by joint resolution.
\6\ Second session Twenty-seventh Congress, Journal, p. 1459; Globe,
pp. 894, 973, 974.
\7\ This message may be found on page 190, Vol. IV of Richardson's
Messages and Papers. These resolutions, except No. 4 (which was not
agreed to), were copied from the resolutions adopted by the Senate in
1834. That year that body had adopted certain resolutions condemning
the course of President Jackson in the removal of the deposits from the
bank of the United States to the State banks. Against this President
Jackson sent a protest.
August 9 President Tyler had returned to the House with his
objections House bill No. 472, ``to provide revenue from imports,''
etc. This was referred to a special committee, of which Mr. John Quincy
Adams was chairman. This committee made a report severely criticizing
the message. It was against this report that the President sent his
protest.
Sec. 1591
the following resolutions, which were all agreed to except the fourth,
which was disagreed to:
1. Resolved, That while this House is, and ever will be, ready to
receive from the President all such messages and communications as the
Constitution and laws and the usual course of public business authorize
him to transmit to it, yet it can not recognize any right in him to
make a formal protest against votes and proceedings of this House,
declaring such votes and proceedings to be illegal and
unconstitutional, and requesting the House to enter such protest on its
Journal.
2. Resolved, That the aforesaid protest is a breach of the privileges
of this House, and that it be not entered on the Journal.
3. Resolved, That the President of the United States has no right to
send a protest to this House any of its proceedings.
4. Resolved, That the Clerk of this House be directed to return the
message and protest to its author.
1591. President Jackson. having sent to the Senate a protest against
its censure of his acts, the Senate declared the protest a breach of
privilege and refused it entry on the Journal.--On April 17, 1834,\3\
President Jackson sent to the Senate his protest against the resolution
which the Senate, on March 28, had agreed to, in these words:
Resolved, That the President, in the late executive proceedings in
relation to the public revenue, has assumed upon himself authority and
power not conferred by the Constitution and laws, but in derogation of
both.
This protest was debated until May 7,\2\ when these resolutions were
agreed to, yeas 27, nays 16.
Resolved, That the protest communicated to the Senate on the 17th
instant, by the President of the United States, asserts powers as
belonging to the President, which are inconsistent with the just
authority of the two Houses of Congress, and inconsistent with the
Constitution of the United States.
Resolved, That while the Senate is, and ever will be, ready to
receive from the President all such messages and communications as the
Constitution and laws and the usual course of business authorize him to
transmit to it, yet it can not recognize any right in him to make a
formal protest against votes and proceedings of the Senate, declaring
such votes and proceeding to be illegal and unconstitutional, and
requesting the Senate to enter such protest on its journals.
Resolved, That the aforesaid protest is a breach of the privileges of
the Senate, and that it be not entered on the Journal.
Resolved, That that President of the United States has no right to
send a protest to the Senate against any of its proceedings.
1592. A protest by the minister of a foreign power against proposed
action of the House was held to be an invasion of privilege.--On August
5, 1841,\3\ Mr. John Quincy Adams, of Massachusetts, called the
attention of the House to a communication from the minister of France
to the Secretary of the Treasury, which accompanied the message of the
President of the United States of the preceding day, and observed that
he considered the fact of a foreign functionary addressing an official
communication to any officer of this Government, except the head of the
Department of State, a breach of official decorum; and the further fact
of the remonstrance of such functionary against the passage of any
measure pending
-----------------------------------------------------------------------
\1\ First session Twenty-third Congress, Debates, p. 1317.
\2\ Debates, p. 1712.
\3\ First session Twenty-seventh Congress, Journal, p. 320; Globe, p.
298;.
Sec. 1593
before this House as a breach of the privileges of this House. He
therefore moved, as a matter of privilege, the following resolution:
Resolved, That the President of the United States be requested to
inform this House by what authority the minister from France addressed
a communication to the Secretary of the Treasury, remonstrating against
the passage of a bill now pending before Congress.
Mr. Hopkins L. Turney, of Tennessee, objected to the reception of the
resolution as a question of privilege, contending that the privileges
of the House were not involved in the subject-matter of the
correspondence referred to in the resolution.
The Speaker \1\ decided against the objection taken by Mr. Turney,
and that the rights, privileges, and dignity of the House were involved
in the subject-matter touched upon in the resolution.
Mr. Turney having appealed, both the appeal and the resolution were
laid on the table.
1593. Congress, by concurrent resolution, directs executive officers,
to make investigations in river and harbor matters.--On February 1,
1906,\2\ the following resolution was received from the Senate by
message, and was on the same day referred to the Committee on Rivers
and Harbors:
Resolved by the Senate (the House of Representatives concurring),
That the Secretary of War be, and he is hereby, authorized and directed
to inquire into the advisability of establishing a harbor of refuge by
the construction of a breakwater on the island of Nantucket,
Massachusetts, at or near the westerly side of Great Point, for the
purpose of providing better protection for commerce and the lessening
of the perils of navigation to coastwise traffic in the adjacent
waters.
On February 2,\3\ also, the following resolution was agreed to in the
Senate and transmitted to the House:
Resolved by the Senate (the House of Representatives concurring),
That the Secretary of War be, and he is hereby, authorized and directed
to cause an examination and survey to be made with a view to providing
a harbor suitable for the largest boats at a point opposite or near the
following-described land: Sections Nos. 33 and 34, township 37, range 8
west, Lake County, Ind.
The act of March 3, 1905,\4\ provides:
That after the regular or formal reports made as required by law on
any examination, survey, project, or work under way or proposed, are
submitted no supplemental or additional report or estimate shall be
made unless ordered by a concurrent resolution of Congress.
1594. A law confers on either House of Congress the power to direct
by simple resolution that the Secretary of Commerce and Labor make
certain investigations.--The act of February 14, 1903.\5\ ``to
establish the Department of Commerce and Labor,'' provides that the
Secretary of Commerce and Labor shall ``from time to time make such
special investigations and reports as he may be required to do by the
President, or by either House of Congress, or which he himself may deem
necessary and urgent.''
The same act gives the Commissioner of Corporations, an officer under
the Secretary of Commerce and Labor, the power to compel testimony and
the production of papers.
-----------------------------------------------------------------------
\1\ John White, of Kentucky, Speaker.
\2\ First session Fifty-ninth Congress, Record, p. 1913.
\3\ Record, p. 1977.
\4\ 33 Stat. L., p. 1147.
\5\ 32 Stat. L., p. 829.
Sec. 1595
Acting under the provisions of this act--
On March 7, 1904,\1\ the House agreed to this resolution: \2\
Resolved, That the Secretary of Commerce and Labor be, and he is
hereby, requested to investigate the causes of the low prices of beef
cattle in the United States since July 1, 1903, and the alleged large
margins between the prices of beef cattle and the selling prices of
fresh beef, and whether the said conditions have resulted in whole or
in part from any contract, combination in the form of trust or
otherwise, or conspiracy in restraint of commerce, etc.
1595. The power of appointment to office belongs to the President,
and Congress, by law, may not declare one an officer who is not such in
fact.--By a message dated September 30, 1890,\3\ President Benjamin
Harrison returned to the House of Representatives, without his
approval, the joint resolution (H. J. Res. No. 39) declaring the
retirement of Capt. Charles B. Shivers, of the United States Army,
legal and valid, and that he is entitled as such officer to his pay.
The President says:
It is undoubtedly competent for Congress by an act or joint
resolution to authorize the President, by and with the advice of the
Senate, to appoint Captain Shivers to be a captain in the Army of the
United States and to place him upon the retired list. It is also
perfectly competent, by suitable legislation, for Congress to give to
this officer the pay of this grade during the interval of time when he
was improperly carried upon the Army lists. But the joint resolution,
which I herewith return, does not attempt to deal with the case in that
way. It undertakes to declare that the retirement of Captain Shivers
was legal and valid, and that he always has been and is entitled to his
pay as such officer. I do not think this is a competent method of
giving the relief intended.
The message states the facts to be that Captain Shivers was summarily
dismissed from the Army by order of the President on July 15, 1863. On
August 11, 1863, an order was issued revoking this order of dismissal
and restoring Captain Shivers to duty as an officer of the Army. On
December 30, 1864, Captain Shivers, by proper order, was placed on the
retired list of the Army. The Supreme Court (114 U. S., 619) had
decided that the President had the authority to so separate an officer
from the service; and that having been thus separated he could not be
restored except by nomination to the Senate and confirmation thereby.
The Attorney-General therefore gave an opinion that Captain Shivers was
not an officer on the retired list of the Army.
This message was referred to the Committee on Military Affairs and
was not acted on further.
1596. The House of Representatives having appointed a committee to
inquire into the conduct of the President of the United States, and the
President having protested, the House insisted on the right so to do.
The power of inquiry as related to the power of impeachment.
Instance wherein the appointment of the mover of an investigation as
chairman of the committee caused debate.
On March 5, 1860,\4\ on motion of Mr. John Covode, of Pennsylvania,
and by a
-----------------------------------------------------------------------
\1\ Second session Fifty-eighth Congress, Record, p. 2958.
\2\ Without the authority of act of Congress as given, a direction to
an executive officer to make an investigation would be made, not by
simple resolution of the House, but by joint resolution, which is a
law. See instance, 34 Stat. L., p. 823.
\3\ First session Fifty-first Congress, Journal, p. 116.
\4\ First session Thirty-sixth Congress, Journal, pp. 450, 484;
Globe, pp. 997, 998.
Sec. 1596
vote of 117 yeas to 45 nays, the rules were suspended and the following
resolution was agreed to:
Resolved, That a committee of five Members be appointed by the
Speaker for the purpose of investigating whether the President of the
United States, or any other officer of the Government, has, by money,
patronage, or other improper means, sought to influence the action of
Congress, or any committee thereof, for or against the passage of any
law appertaining to the rights of any State or Territory; and also to
inquire into and investigate whether any officer or officers of the
Government have, by combination or otherwise, prevented and defeated,
or attempted to prevent or defeat, the execution of any law or laws now
on the statute books; and whether the President has failed or refused
to compel the execution of any law thereof, etc.
There was also a further resolution relating to the investigation of
the use of money in elections and abuses in certain public offices.
The Speaker appointed as the committee Messrs. Covode, Abraham B.
Olin (of New York), Warren Winslow (of North Carolina), Charles R.
Train (of Massachusetts), and James C. Robinson (of Illinois).
On March 29, 1860,\1\ a message was received from the President of
the United State's in which he protested against the resolution,
saying:
The House of Representatives possess no power under the Constitution
over the first or accusatory portion of the resolution, except as an
impeaching body; while over the last, in common with the Senate, their
authority as a legislative body is fully and cheerfully admitted.
It is solely in reference to the first or impeaching power that I
propose to make a few observations. Except in this single case, the
Constitution has invested the House of Representatives with no power,
no jurisdiction, no supremacy whatever over the President. In all other
respects he is quite as independent of them as they are of him. As a
coordinate branch of the Government, he is their equal. Indeed, he is
the only direct representative on earth of the people of all and each
of the sovereign States. To them, and to them alone, is he responsible
while acting within the sphere of his constitutional duty, and not in
any manner to the House of Representatives. * * *
The people have not confined the President to the exercise of
executive duties. They have also conferred upon him a large measure of
legislative discretion. No bill can become a law without his approval,
as representing the people of the United States, unless it shall paw
after his veto by a majority of two-thirds of both Houses. In his
legislative capacity, he might, in common with the Senate and the
House, institute an inquiry to ascertain any facts which ought to
influence his judgment in approving or vetoing any bill.
This participation in the performance of legislative duties between
the coordinate branches of the Government ought to inspire the conduct
of all of them, in their relations toward each other, with mutual
forbearance and respect. At least each has a right to demand justice
from the other. The cause of complaint is, that the constitutional
rights and immunities of the executive have been violated in the person
of the President.
The President further protested that the resolution involved the
preliminary proceedings of impeachment, and contended that, as in the
case of Judge Peck \3\ and in succeeding impeachments, the accusations
should be set forth definitely and specifically, and should be
considered by the Committee on the Judiciary, which had always been
considered the appropriate committee, according to proper forms. But
the House of Representatives, by making John Covode chairman of the
select committee had made the accuser the judge. Also the House, by
adopting the resolution, had indorsed vague charges against the
Executive, without permitting
-----------------------------------------------------------------------
\1\ First session Thirty-sixth Congress. Journal, p. 618; Globe, pp.
1434-1440; House Report No. 394, p. 33.
\2\ See section 2364 of Vol. III of this work. James Buchanan was
President,
\3\ See section 2364 of Vol. III of this work.
Sec. 1596
inquiry to be made as to specific charges. Thus the President was
denied the privileges which the Constitution granted to the humblest
citizen. He also contended that the proceeding tended to aggrandize the
legislative department at the expense of the executive.
After debate the message was referred to the Committee on the
Judiciary. This committee reported \1\ on April 9, 1860. This committee
consisted of Messrs. John Hickman, of Pennsylvania; John A. Bingham, of
Ohio; George S. Houston, of Alabama; Miles Taylor, of Louisiana; Thomas
A. B. Nelson, of Tennessee; William Kellogg, of Illinois; John H.
Reynolds, of New York; Christopher Robinson, of Rhode Island, and
Albert G. Porter, of Indiana.
The report, to which Messrs. Houston and Taylor dissented, recommends
the adoption of this resolution:
Resolved, That the House dissents from the doctrines of the special
message of the President of the United States of March 28, 1860;
That the extent of power contemplated in the adoption of the
resolutions of inquiry of March 5, 1860, is necessary to the proper
discharge of the constitutional duties devolved upon Congress;
That judicial determinations, the opinions of former Presidents, and
uniform usage sanction its exercise; and,
That to abandon it would leave the executive department of the
Government without supervision or responsibility, and would be likely
to lead to a concentration of power in the hands of the President,
dangerous to the rights of a free people.
In support of these resolutions the report of the committee contends:
The President of the 'United States, under the Constitution,
possesses neither privilege nor immunity beyond the humblest citizen,
and is less favored in this respect than Senators and Representatives
in Congress. Article 1, section 6, reads: ``They (the Senators and
Representatives) shall, in all cases except treason, felony, and breach
of the peace, be privileged from arrest during their attendance at the
session of their respective Houses, and in going to and returning from
the same.'' No such exemption is made in behalf of the Executive or any
other officer of Government. The conduct of the President is always
subject to the constitutional supervision and judgment of Congress;
while he, on the contrary, has no such power over either branch of that
body. He is left, under the law, without shield or protection of any
kind, except such as is borne by all. He is as amenable for all his
acts after inauguration as before. He can make no plea which is denied
to any other citizen, and is subject to the same scrutiny, trial, and
punishment, with the proceedings, hazards, and penalties of impeachment
superadded. The President and the citizen stand upon equality of
rights. The distinction between them arises from an inequality of
duties. Wherever the conduct of the latter is open to inquiry and
charge, that of the former is not the less so. The President affirms,
with seeming seriousness, in comparing himself with the House of
Representatives, that, ``as a coordinate branch of the Government, he
is their equal.'' This is denied in emphatic terms. He is
``coordinate,'' but not coequal. He is ``coordinate,'' for he ``holds
the same rank;'' but he is not coequal, for his immunities and powers
are less. The Members of the House may claim a, privilege, whether
right or wrong, which he can not, and the executive or law executing
power must always be inferior to the legislative or law-making power.
The latter is omnipotent within the limits of the Constitution; the
former is subject not only to the Constitution, but to the
determinations of the latter also. To repeat the point: The President
is not, in any respect, superior to the citizen, merely because he is
bound to discharge more numerous duties; and he is not coequal with
that branch of Government which helps to impose and define those
duties. The fact that he holds a limited veto over the legislation of
Congress can not affect the soundness of the views here briefly
presented. His claim to ``legislative capacity,'' in other words, to
possess legislative power, will scarcely be conceded in view of Article
I, section 1, of the Constitution, declaring that, ``All legislative
powers herein (therein) granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of
Representatives.''
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\1\ House Report No. 394, first session Thirty-sixth Congress.
Sec. 1596
The committee then go on to discuss the President's assumption that
the resolution charged him with the commission of high crimes and
misdemeanors. They deny that it was a charge. It was a mere inquiry, as
the language of the resolution would show. But even if the charges
were, proper for impeachment, the House might proceed in any way it
might consider proper, either according to the precedent of the case of
Judge Peck, or according to other forms.
The committee drew a distinction between this case and the protest of
President Jackson against the Senate resolution of March 28, 1834,
wherein the President was censured. The resolutions of the House in
this case did not propose censure, but merely an inquiry.
The appointment of the Member moving the resolution as chairman of
the committee was in accordance with ``a practice in legislation
coextensive with our national existence.''
The propriety of inquiry into the acts of the Executive had been
admitted by Presidents Jackson and Polk, and the
necessity for the full and unrestricted exercise of the power in
question is so overruling as to prevent its surrender: (1) With a view
to impeachment; (2) for the purpose of legislation; (3) to protect the
privileges of Congress.
The committee replied to the statement that the legislative power
would be aggrandized unduly, by pointing out that the fears of the
fathers that the Executive would be unduly aggrandized, were more
likely to be realized.
On June 8 the resolution of the committee was agreed to,\1\ yeas 87,
nays 40.\2\
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\1\ Journal, p. 1041; Globe, pp. 2774-2776.
\2\ On June 25 a second message of protest was received from the
President and was referred to a select committee, Journal, p. 1218.