PARKER CONSTITUTION CLUB OF NEW YORK CITY.
REPORT No. 3.
Relating to President Roosevelt's appointment of
W. D. Crum as Collector at Charleston, S. C.

The facts are these :
The vacancy in the office of Collector of Customs at Charles
ton, S. C, occurred in the autumn of 1902, during a recess of
the Senate. Congress regularly convened on the first Monday of Decem
ber, 1902, the duties of Collector having in the meantime been
performed by the Deputy Collector.
December 31, 1902, the nomination of William D. Crum was
sent to the Senate.
January 5, 1903, the nomination was referred to Committee.
February 18, 1903, the Committee reported against confirm
ation. March 4, 1903, the Senate adjourned for the session without
further action on the nomination.
March 5, 1903, the Senate having convened in Special Ses
sion, the nomination was again sent in.
March 5, 1903, the nomination was referred to Committee.
The Senate adjourned for the session without taking action
on the nomination.
March 20, 1903, the President issued a temporary commission
to'Dr. Crum as Collector.

Cd34 \ DO

March 30, 1903, Dr. Crum qualified by executing his bond
and taking the oath of office. He then entered upon the dis
charge of his duties, but without receiving compensation.
November 9, 1903, the Senate convened in Special Session.
November 11, 1903, the nomination of Dr. Crum was sent
in to the Senate.
November n, 1903, the nomination was referred to Com
mittee. December 7, 1903, noon, the Special Sesson ended, no action
having been taken on the nomination.
December 7, 1903, noon, the Regular Session commenced.
December 7, 1903, noon, Dr. Crum was again appointed Col
lector, as shown in the italicized portion of the subjoined statement.
1 ' William D. Crum was appointed Collector at the port of
Charleston, S. C, "March 20, 1903, and a temporary com
mission issued. Mr. Crum qualified by executing bond for
$50,000 and took oath of office March 30, 1903. Mr. Crum
was again appointed December 7, ipoj, and has given bond in
the sum of $50,000 and took oath of office on fanuary p, ipog."
(From statement of Secy, of Treas. , January 27, 1904,
C. R., v. 38, p. 1696.)
December 7, 1903, Dr. Crum's nomination was sent in to the
Senate, as shown by the following statement :
"Fourth nomination December 7, ipoj. (58th Cong. 2d
Sess.) referred December 7, ipoj.' '
(Extract from memorandum made by Executive Clerk
of the Senate C. R., v. 38, p. 1696).
By the Constitution, Article II., § 2, it is provided :
"The President * * * shall nominate, and by and
with the advice and consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of
the Supreme Court, and all other officers of the United States

whose appointments are not herein otherwise provided for
and which shall be established by law * * *
' ' The President shall have power to fill up all vacancies
that may happen during the recess of the Senate, by granting
commissions which shall expire at the end of their next ses
sion. ' '
It will be noticed that the Constitution provides, in this
Section, for two sorts of appointments only :
First. Regular appointments, after nomination by the Pres
ident and confirmation by the Senate ;
Second. Temporary or emergency appointments by the
President during the recess of the Senate.
In the earlier debates on this subject, in January, 1904, there
was some confusion as to exactly what had been done by the
President on December 7, 1903 ; whether he had made a recess
appointment, or a nomination, or both. It was important that
the Senate should know the facts. Dr. Crum was actually in
enjoyment of his office. This would be clearly unconstitutional
if it were in reliance on a mere nomination unconfirmed by the
Senate. His incumbency would be valid only by virtue of a
recess appointment. If there Was no recess in which an appoint
ment could be made, the act of the President directing him to
perform the duties of the office would be unconstitutional.
An earlier message of the Secretary of the Treasury to the
Senate had failed to make the matter clear. Further information
was demanded of him, and the above quoted letter of January
27th was sent in reply.
This statement, again, lacks definiteness. The commission
of March 20, 1903, is described in it as a temporary commission ;
the appointment of December 7, 1903, is not characterized. The
nomination of December 7th, described in the Senate Clerk's
memorandum as the " Fourth nomination," is not mentioned at
all. ¦ What follows we give in the Secretary's own words :

"The resolution also asks 'Is Mr. Crum now in office ;
and if so, under what authority of law ?' William D. Crum
is de facto collector at the Port of Charleston, S. C. Whether
he holds his position under authority of law is determinable
not by the executive department of the Government, but by
the judiciary, and by that only."
The above outline shows a unique proceeding on the
part of an Executive. A candidate, of whom the Senate had,
by failure to act upon his nomination after an adverse com
mittee report, indicated its disapproval, was nominated for the
fourth time. Moreover, he had been kept continuously in office
by a device which seemed to defeat the purpose of the Consti
tution. Such a state of facts could not fail to provoke discussion
in the Senate, even without the circumstance that an important
administrative post had been given in a Southern community to
a person of color. The debate, which lasted for several days
during January and February, 1904, was, however, conducted
with moderation. The question of the propriety of the nomina
tion and the character and fitness of the nominee, was not before
the Senate, the discussion mainly turning on the validity of the
recess appointment of December 7th.
In defense of the appointment of December 7th, it was
argued that there cannot be an end of a Session without a recess ;
that as there was an end of the Special Session at noon on
December 7th, there must then have been a constructive recess
(inappreciable in point of duration, because the regular session
began at the same moment) which would justify the making of
an appointment at that moment as a recess appointment under
the Constitution. Those who took the contrary view contended that when one
Session ends and another begins at the same moment of time,
the notion of a recess either actual or constructive is an absurd
ity, and that an appointment under color of such a fiction is
violative of the Constitution. 1
The doctrine of the constructive recess was received with

derision by the public at large. In the Senate it provoked the
anger of the opposition. It was received with dismay by the
friends of the President. Republican senators expressed them
selves vigorously upon the subject, before it was fully appreciated
what the consequence would be, if the theory of the constructive
recess proved untenable. Senator Hale said :
' ' I should be sorry to learn that the Chief Executive had
adopted the strained construction, of which I have never
been able to find the father, that there is a constructive recess
when two sessions come together at the identical moment of
time." In spite of Senator Hale's repeated protests the doctrine was
put forward with great seriousness by Mr. Root, then Secretary
of War, in his letter of January 29, 1904, to the Committee on
Military Affairs in connection with similar recess appointments in
the regular army. (Cong. Rec, Feb. 4, 1904, Vol. 38, p. 1695.)
In that letter he advanced two alternative theories : First,
That the Special Session did not end on December 7th, but merged
in the regular Session. That was the view to which he leaned.
Second. If the Special Session did end on December 7th, that it
was only a ' ' constructive end ' ' which was necessarily followed
by a " constructive recess. ' ' The latter alternative is thus stated :
' ' There can be no end of a session until a time is reached
when there is no session, and the time when there is no
session is a recess. The recess may be called ' constructive '
but it is no more constructive than the end of a session
which is assumed to happen. A constructive end involves
a constructive recess. A real end involves a real recess.
Necessarily, a vacancy caused by the expiration of a com
mission at the end of a session happens in the recess caused
by the end of the session, and it is within the constitutional
power of the President to fill up such a vacancy."
Such an argument as this finds its parallel only in those
of the Scholiasts. Like theirs, its soundness depends upon

the accuracy of the premises. The primary assumption is
that every session is followed by a recess. If one ask why,
the" answer can only be that it usually is so. The weakness
of the argument is thus evident. Nothing further need be
said about it, nor would it be worth the trouble of refuting,
if it had not been put forward by so eminent an advocate as
Mr. Root.The theory was advanced as an alternative to that of con
structive merger, because Mr. Root appeared to think that be
tween two sessions there must, by logical necessity, be either an
appreciable space or a merger. By what analogy he was guided
it is impossible to say. Certainly he did not find it in that
' ' reality of things ' ' to which he appeals elsewhere. Things can
come together without merger or the intervention of space, and
why not sessions ? One session ended and the other began at the
moment when the hands of the clock were opposite "XII."
Here was not a. period but a. point of time, and a point of time (as
defined in the Standard Dictionary) is indivisible.
The case must rest, then, on the theory of a continuous ses
sion, the effect of which would be to prolong the earlier recess
appointment, and thus render valid the continued incumbency of
the appointee. It is confidently put forward by Mr. Root, in the
same letter, thus :
' ' If that provision of the Constitution were to be applied
to the actual facts and in accordance with the reality of
things, it would be held that the session of the Senate had
not ended, and that the extraordinary session had merely
merged into the regular session, without any such end of a
session as the Constitution intends to terminate a recess
commission." Mr. Root should have been non-committal, as was the Secre
tary of the Treasury. The latter was probably better advised of
the " reality of things," and had read the Congressional Record
containing this^account of the proceedings of December 7 th :

"The Senate met at 11:30 o'clock A. m. * * * The
hour of 12 o'clock having arrived, ~the President pro tempore
said: 1 ' ' Senators, the hour provided by law for the meet
ing of the first regular session of the Fifty-eighth Con
gress having arrived, I declare the extraordinary session
adjourned without day.' "
SENATE.
Monday, December 7, 1903.
' ' The first Monday of December being the day prescribed
by the Constitution of the United States for the annual
meeting of Congress, the second session of the Fifty-eighth
Congress commenced this day.
' ' The Senate assembled in its Chamber at the Capitol.
"The President pro tempore (Mr. William P. Frye, a
Senator from the State of Maine) called the Senate to order
at 12 o'clock, noon."
In face of this "reality" Mr. Root's theory of constructive
merger is as difficult to accept as that of the constructive recess.
If Mr. Root were acting as the law officer of the Govern
ment and were called upon to proceed against Dr. Crum's
sureties for misconduct occurring after December 7, 1903, it is
safe to assume that he would not rely upon the merger doctrine,
but would proceed upon the bond furnished subsequently to
December 7, 1903, rather than upon. that of March 30, 1903.
See U. S. vs. Kirkpatrick, 9 Wheat., 720.
The. incident of December 7th is grave enough, constituting
a usurpation of the powers of the Senate by means of a fiction,
although, if merely the appointment of December 7th had been
in question, less notice would have been taken of the incident.
But the President is chargeable with something more than a
technical violation of the Constitution. The appointment of
December 7th was not an isolated transaction ; it was part of a

8
plan to put a political supporter in office, and keep him there in
defiance of the Senate which four times refused the concurrence
which was necessary to make a constitutional appointment.
The tradition has existed for a long time that federal officers
should not be appointed unless they are satisfactory to the inhab
itants of the district. In the case of Dr. Crum the local sentiment
had been unequivocally expressed. The sentiment was that of the
majority (one might say substantially all) of those who have busi
ness with the collector. The Senators from South Carolina pre
sented in the Senate the views of their constituents and an
adverse report was made by the appropriate committee. The
Senate was firm, although it had a majority in political sympathy
with the President, and twice refused to confirm. The President
then formed the plan of keeping his nominee continuously in
office, notwithstanding the opposition of the Senate, by appoint
ing him in each recess for a term ending with the close of the
following session. He attempted to make a permanent appoint
ment by means of a succession of temporary appointments,
thus seeking to do indirectly what he was not permitted to do
directly. Such a proceeding constituted a most serious and
menacing departure from the Constitution. Thirty-six years ago
an eminent judge foresaw the possibilities which thus lay in the
hands of a too ambitious President.
' ' His appointments during the recesses of the Senate
might be so made and renewed that they could not be called
temporary. They might, moreover, be withdrawn from the
consideration of the Senate. Thus he might, although the
Senate were in session when the vacancy first occurred, or
had sat since it thus occurred, appoint in the recess an officer
who would be objectionable to the Senate if in session, and
might, in disregard or defiance of the Senate, continue him
in office indefinitely. This might be done by successive ap
pointments and reappointments of him at the commencement
of every recess until the end of the next ensuing session of
the Senate. There is nothing in the political experience of

our country to warrant her security against such temporary
appointments being thus made again and again with such
result. The Senate, where vacancies existed, would thus be
unable to oppose any effectual check to the President's power
of appointment. * * *
This would be no visionary danger where the President
and a majority of the Senate are of different political
opinions. ' '
Per Cadwalader, J., in case of Dist. Atty. of U. S.
(Fed. Cas., No. 3924).
That the President was not more severely dealt with in the
Senate was due to the exigencies of politics. How the Senate
has regarded the usurpation of the appointing power by the
President when it was out of sympathy with him, we have an
example in the case of President Johnson. There a technical
violation of the same provision of the Constitution, in the ap
pointment of a Secretary of War, was followed by impeachment.
That usurpation was not as dangerous as this, because it
affected the whole nation, and therefore provoked widespread
and effective opposition. The appointment of Dr. Crum directly
concerns only one district. The opposition of its inhabitants is
of small consequence to President Roosevelt, because they will
vote against him in any event.
It may be argued that an adequate safeguard exists in Sec
tion 1 76 1, Revised Statutes, which reads as follows :
' ' No money shall be paid from the treasury, as salary, to
any person appointed during the recess of the Senate, to fill a
vacancy in any existing office, if the vacancy existed while
the Senate was in session and was by law required to be filled
by and with the advice and consent of the Senate, until such
appointee has been confirmed by the Senate. ' '
A moment's thought will show that this Act affords very
slight protection. The instance of Dr. Crum himself, who has
received no salary, while discharging the duties of his office,
suffices to prove it. Whenever the importance of the case justified

IO
it, the President could readily find a candidate to serve without
salary. Many offices carry great political power, or provide
indirect emolument. These would be sought even if no salary
were attached to them, and it is these in respect to which the
President would be most anxious to dispense with the concurrence
of the Senate in the matter of appointments.
The incident discussed in this paper is of serious import, not
merely to the citizens of Charleston, but to the nation at large.
Actions of this kind create precedents, and what is good for
Charleston is good also for New York or San Francisco. It is
merely a step in the policy by which the federal executive is
accumulating and concentrating power in itself. That policy
has developed a prominence in the last few years, in weak hands
as well as in strong, which justifies an appeal to the early ideals
of the Republic.
PARKER CONSTITUTION CLUB OF NEW YORK CITY,
By Wheeler H. Peckham,
John G. Carwsle,
William B. Hornblower,
John G. Milburn,
Adrian H. Joline,
A. Leo Everett,
Howard Taylor,
Committee on Reports.

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3 9002 08561 1979