The third was agreed to without a division.
When the committee rose and reported their agreement to the resolutions.
The House immediately considered the report.
On concurring with the Committee of the Whole in their agreement to the
first resolution,
Mr. FISK said he sincerely regretted it was not in his power to vote
for this resolution. He regretted there was no such principle in the
constitution as is prescribed. Such a principle not being in the
constitution, he did not conceive it in the power of the House to make
the provision. It was not, in his opinion, in their power to say a man
should not hold a seat in that House who was not prohibited by the
constitution. It was on this ground only he was against the resolution
under consideration.
Mr. J. RANDOLPH.--I think the gentleman from Vermont may in perfect
consistence with the principle he has laid down, which I do not mean
at present to contest, give his vote in favor of this resolution. He
says that this House has not a right to make a disqualification which
the constitution itself does not attach to the tenure of a seat on this
floor; that the constitution draws a line between the qualification
and disqualification of a member, and that this House has no right to
alter them. What do we propose to do? To add a new disqualification?
No; to do that which the constitution put in our hands, which it not
only authorizes but enjoins upon us. The constitution declares that
each House shall be the judge of the qualification of its members. It
is clearly, then, the duty of the House to expound what is or is not a
disqualification; and we are now only about to declare what is such a
disqualification--merely to expound the constitution on this head. I know
some gentlemen are startled at the idea of expounding the constitution.
But do we not do this every day? Is not the passage of every act a
declaration on the part of this House that a decision upon it is among
their constitutional powers? Or, in other words, is it not an exposition
of the constitution? So, in this instance, I will suppose a man returned
to serve as a member of this House, and that he is declared, for some
reason, to be disqualified from holding a seat. This, according to the
gentleman, would be expounding the constitution. We propose doing no more
than saying, if the Secretary of State, or Chief Justice, should come
here, they cannot hold a seat. We say that an abuse exists under the
constitution, and offer a remedy.
I have heard some quibbling about the meaning of the word “officer.”
What is the meaning of office? Agency; it is the office of a man’s cook
to dress his dinner, of a tailor to supply him with clothes; and it is
the office of a contractor to fatten on the land--to acquire lordships,
demesnes, baronies--extensive territory--by the advantage he derives from
holding the public money, in virtue of his contract. But it is asked, if
a contractor is an officer; and whether he can be impeached? because,
under the constitution, all civil officers are liable to impeachment.
Would you impeach the Marshal of the District of Columbia? It may be
answered that you may impeach him, but that you would not probably do
so, because that would be breaking a butterfly on the wheel. Would you
impeach a deputy postmaster? And yet when the postmaster at New York
accepted his appointment, did he not vacate his seat in the Senate? There
is no doubt a contractor is an officer _pro tempore_--it is not an office
in perpetuity, but created for a time, and for a particular purpose.
And I will ask, if it is not more dangerous to the independence of the
two Houses to admit commissioners and contractors within their walls
than officers with legal salaries and appointments? If we are to admit
either, I say, give me the legal officer, with a determinate salary and
definite powers, rather than the contractor who may gain thousands and
tens of thousands of dollars by a single job. But, if the gentleman from
Vermont is of opinion that a contractor is not an officer, under the
constitution, I hope he will join me in another vote, on an amendment
which I shall beg leave to offer--this goes only to purge these walls,
not those of the other House. I mean an amendment declaring void all
contracts made with members of either House, and on this principle:
between the sessions of the Legislature it is possible for a member to
receive a lucrative job, by which he may put thousands in his pocket,
and which being completed in the recess, and there being nobody to take
cognizance of it, it will be impossible to apply a remedy. But, I hope
this construction, which, so far as relates to our own House, we have
an undoubted right to make, will obtain as the true construction of the
constitution.
But it is said that this House, and Houses which may hereafter meet, may
give the constitution a different construction. No doubt of it; and this
may operate to the end of time. A former House passed a sedition law; a
subsequent House deemed the law unconstitutional. It is true they did not
declare it so, and I am sorry for it; but there is no doubt of the fact.
Now, we may pass a sedition law again to-morrow, and the people rise up
against it, and send different members to represent them. The people may
again slumber; as long as you keep your hands from their pockets, they
will keep their eyes from yours; and, in the same way, this law may be
repealed. I can, therefore, see no force in this objection. The courts of
justice undertake to expound the constitution, and shall not the House
of Representatives be as competent to do this as any court of justice?
I will suppose a case, that of a man condemned under the Sedition law
by a tribunal of justice. Suppose men of different principles come on
the bench, would they hesitate to reverse the preceding decision of the
court? Indisputably not. Here, too, then, we would behold varying and
repugnant decisions.
Mr. EPPES.--I have no doubt that every objection which can be made to
a member of this House holding a civil office during his continuance
as a Representative, applies with equal force to his holding a
lucrative contract. The framers of the constitution in excluding civil
officers from the floor of this House, most certainly intended to
prevent any species of dependence which might influence the conduct
of the Representative--to prevent his looking up for preferment to
the Executive, or being biased in his vote by Executive favor. A
lucrative contract creates the same species of dependence, and every
objection which could be urged against an officer, applies with equal
force against contractors, who are dependent on the Executive will,
and particularly carriers of the mail. While, however, I make this
admission, I do not believe we have power to pass this resolution. The
words of the constitution are: “No person holding an office under the
United States shall be a member of either House during his continuance
in office.” These words are plain and clear. Their obvious intention
was to have excluded officers, and officers only. It would certainly
have been equally wise to have excluded contractors, because the reason
for excluding officers applies to them with equal force. We are not,
however, to inquire what the constitution ought to have been, but what
it is. We cannot legislate on its spirit against the strict letter of
the instrument. Our inquiry must be, is he an officer? If an officer,
under the words of the constitution, he is excluded; if not an officer,
we cannot exclude him by law. It is true, as has been stated, that, by
the constitution, we are made the judges of the qualifications of our
own members. This judgment, however, is confined within very narrow
limits. The constitution prescribes the qualifications of a member. We
can neither narrow nor enlarge them by law. Our inquiry can go no further
than this: has the Representative the qualifications prescribed by the
constitution? An extensive meaning has been given to the word “office.”
How far such a construction of the meaning of this word is warranted, I
leave for others to decide. That all contractors are not officers, I am
certain. A man, for instance, makes a contract with the Government to
furnish supplies. He is certainly not an officer, according to the common
and known acceptation of that word. He is, however, a contractor, and,
under this resolution, excluded from a seat here. A carrier of the mail
approaches very near an officer. The person takes an oath, is subject
to penalties, the remission of which depends on the Executive. His
duties are fixed and prescribed by law. Near, however, as this species
of contract approaches to an office, I do not consider that the word
“office” in the constitution can include even this species of contract.
I consider the word “office” in the constitution ought to be construed
according to the usual import and meaning of that term; and as I do
conscientiously believe that the word “office” and the word “contract”
cannot be tortured to mean the same thing, I shall vote against the
resolution.
Mr. ALSTON.--While I am as much opposed as any man to see any holder of
public money within these walls, I cannot justify myself in declaring
what is or what is not the constitution. If in any case this ought to be
done, this surely should be the last. What is its effect? To deprive a
member of his seat on the vote of a bare majority, when the constitution
has declared that “no seat shall be vacated, but on the vote of
two-thirds of the members.” Let this House say so, and what becomes of a
contractor, if any such there be within these walls? The decision of the
House will be in violation of the constitution. No man who knows me will
imagine that I have any partiality for contractors holding seats within
these walls. I have never held a contract, or received a cent of the
public money but for my wages as a member of this House. I am, therefore,
as disinterested as man can be on this point. If there is a contractor
within the meaning of the constitution, let him be pointed out. I am not
certain how I shall vote upon such a proposition. But I will not declare
beforehand a particular construction of the constitution. If I believe
the case comes within the constitution, of which I am not certain, I will
vote for clearing the House of such a member. But I will not consent to
a majority declaring in this way what they cannot carry into effect.
How can this be done? If you cannot get two-thirds of the members of
this House to vacate the seat, I ask what becomes of the resolution
declaratory of the meaning of the constitution? But it is idle to pass a
declaratory resolution unless it can be carried into effect. One thing
I will say, if the mover will modify his resolution so as to impose
a penalty on any officer who shall make a contract with a member of
Congress, I will give it my consent. For I wish to see no man in these
walls dependent on the Government. I still adhere to the principle which
I set out with, when I entered into public life, for I became a member of
the legislature of the State which I have the honor to represent at the
age of twenty-one; but there was no office in the gift of any government
which I would possess. This is a principle to which I strictly adhere,
and I do not believe I have any relation on earth who holds an office,
numerous as my relatives are.
Mr. R. NELSON said he was sorry that he could not on this occasion,
consistent with the oath he had taken to support the constitution,
advocate the resolution under consideration. He agreed that it was highly
improper for contractors to hold seats in that House, as there were many
cases in which they could not give a free and impartial vote; but in his
opinion there was no power to exclude members from a seat, unless that
power was contained in the constitution. He said he would give his idea
of the spirit and meaning of the constitution on this point. They were
bound by its letter--where the letter and the words of it were plain,
they were bound strictly to adhere to them; where, from the wording,
the meaning was doubtful, or difficult, every member was bound to put
that construction which his judgment dictated. But where there was no
difficulty, where the words were plain and obvious, he would ever raise
his hands against what was called the spirit of the constitution, or, in
other words, giving it a meaning which the words would not bear. If this
power existed in the constitution, it must be found under that section
which declares, that “No Senator or Representative shall, during the
time for which he was elected, be appointed to any civil office under
the authority of the United States, which shall have been created, or
the emoluments of which shall have been increased, during such time;
and no person holding any office under the United States shall be a
member of either House, during his continuance in office.” The question
then comes to the single point: Is a contractor an officer under the
constitution? If he is, there is no doubt he may be excluded from a
seat in this House; but if he is not, he cannot be excluded. What then
is the idea of an officer under the constitution? It either must be
recognized by the constitution, or some law passed in conformity to
it, for no man under the Government has a right without law to create
as many offices as he pleases. The Postmaster-General has a right to
contract for carrying the mail; he may employ for this purpose fifty,
five hundred, or five thousand men. Will any body thence contend that
the Postmaster-General has the right of creating five thousand offices?
Our constitution has been justly extolled as the freest in the world,
and as the best calculated to promote the happiness and security of the
people. It has been called free in contradistinction to those despotic
governments, where all the offices are held up to sale. Is not this the
case with contracts? Are they not uniformly given to the lowest bidder?
What government of principle then is this, which proposes to put a
construction upon the constitution, by which offices under the Government
shall be thus exposed to sale? But are they in truth officers of the
United States, recognized either by the constitution or laws? No, they
are not officers of the United States, they are mere hirelings of the
Postmaster-General; he has not the power of setting up the constitution
to the highest bidder. If so, it is no longer a free constitution; it
does not deserve the eulogiums which have been so justly passed upon it.
Mr. EARLY.--I would not rise to trouble you were not the yeas and
nays to be recorded on this question. I am as fully sensible as the
honorable mover of the resolution, or any other gentleman on this
floor, of the extreme impropriety, to say the least of it, of persons
remaining members of this House who hold a contract under the Government
to which any emolument is attached. With him and them I believe, that
of all descriptions of appointment, this is the most improper to be
blended, where the emoluments are not fixed by law, but rise or fall
with circumstances. I am therefore as willing as any person can be to
adopt any measure to effect a remedy of this evil, which we possess
the constitutional right of doing. My difficulty on this subject is
not the same with that presented to the minds of some gentlemen, that
we are not authorized to pass a resolution putting a construction upon
the constitution. On this subject, by the constitution we are made
judges of the qualifications of the members of this House. If so, we are
necessarily judges of their disqualification also. One power implies
the other. I therefore have no difficulty on this score. The simple
question is, in my mind, whether a contractor is an officer under the
constitution? My own opinion is decidedly in the negative--an opinion
formed after the most mature reflection. I can appeal to you, sir, that I
have sought after truth on this subject with industry; and I can appeal
to other members to attest my having contemplated early in the session
the offering a resolution as the foundation of a law, to give effect to
the object of the gentleman from Virginia, to declare void any contract
made by any officer under this Government with any member of either
House. So far I am prepared to go, if any member shall introduce such a
proposition. The passage of such a law will remove the inconvenience
which might arise from interfering decisions made in this House at
different times, and will prevent the existence of a different rule in
the two branches of the Legislature.
Mr. J. RANDOLPH admitted that this might be, as he was convinced it was
with many gentlemen, and hoped it was with all, a question admitting
of a fair difference of opinion. It was a question that respected the
construction of the Constitution of the United States. The point in
issue, whether a contractor is or is not an officer of the United States,
had been set aside by being begged. Gentlemen argue as if it was proposed
to add a new qualification to holding a seat on this floor, when in
truth, no such question existed; the only question was, whether there
was an existing disqualification. While I am up, said Mr. R., permit
me to say the gentleman from Maryland has, with a peculiar infelicity,
abandoned the ground which he had first taken. He says that a contract
cannot be an office, because the former are put up to sale; and because
no man, under the constitution, can possess the power of creating an
indefinite number of offices. And yet, how are those men who carry
the mail or discharge the duties of postmasters appointed, but on the
mere _dictum_ of the Postmaster-General? And how are foreign Ministers
appointed? They are not appointed by law. The President nominates as many
as he pleases, and is only limited by the money at his disposal. As to
the offices under the Postmaster-General, as has been alleged, being let
to the lowest bidder, I believe it would be difficult to establish the
allegation. I understand that that is not the principle on which they
have been let out. We are told that a contract is nothing but a bargain.
It certainly is a bargain. But suppose the office of Postmaster-General,
as that seems in this debate to have engaged so much of the attention
of gentlemen, should be let to the lowest bidder; would the person that
discharged those duties be less an officer of the United States? There is
one office which I believe is always let to the lowest bidder--a common
executioner. Who is he? The deputy of the sheriff: and _quo ad hoc_, he
is as much an officer as the superior who employs him.
Mr. ELMER said it was perfectly clear to him, that the members of that
House were not at liberty to vote for the resolution under consideration.
Both common sense and the constitution forbade considering a contract in
the light of an office, and he had never before heard it contended that
they were equivalent terms. He would cordially give his vote for any law
which could be constitutionally passed, to get rid of speculation and
corruption of any sort, but the oath which he had taken to support the
constitution limited his power, which he could not transcend.
Mr. KELLY said he would concisely assign the reasons which would induce
him to vote against the resolution. He did not believe an officer and a
contractor meant the same things. With regard to the contractors holding
a seat on that floor, it might happen that a man might be a contractor
without being in the least disqualified from impartially discharging all
the duties of a member, as the contract which he formed might be more
for the good of others than his own benefit. He, however, allowed that
where a person held a seat, and made use of the power it gave him to
make a contract, he was highly censurable. Still he was of opinion that
it was not in the power of the House to declare the two appointments
incompatible, unless the constitution expressly authorized them. In
examining the constitution he found no such provision. Though it had been
attempted to be shown that a contractor and an officer were one and the
same, he believed they were very distinct things. A contractor receives
no authority from Government; his contract was derived from an officer,
and all the power he possessed was derived from him, who was only
amenable for the performance of the duty to the person who appointed him.
A contractor could not, therefore, be considered as an officer under the
constitution, amenable to the United States.
Several allusions, said Mr. K., have been made to cases which have
occurred under the Postmaster-General, but until these shall be
particularly pointed out, it will be impossible for us to decide how
we are to act. I believe that it does not become this House to pass
declaratory acts relative to the constitution. It ought, in my opinion
to stand on its own footing; and every case that is presented ought to
be decided, not by a declaratory act, but by the constitution itself.
My colleague says that the judges of the federal as well as State
courts take an oath as well as we do, to support the constitution; and
that, notwithstanding they are in the daily habit of construing the
constitution. But there is a wide difference between their deciding
particular cases which properly come before them, and this House going
into a general declaration without any such particular case. Would the
judges undertake to declare the meaning of the constitution without the
existence of a particular case calling for their decision? So that the
very thing which the House is about doing, has been invariably avoided by
the judges.
The question was then taken by yeas and nays on agreeing to the
resolution--yeas 25, nays 86.
MONDAY, March 31.
_Yazoo Claims._
A message was received from the Senate informing the House that they had
passed a bill to carry into effect the provisions of the eighth section
of the “Act regulating the grants of land, and providing for the disposal
of the lands of the United States south of the State of Tennessee.”