Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1826-05-30
CONGRESSIONAL.
SPEE III OF MIR. TAZEyyrT
80 '"' senate OF ne Lt,ited States, on .Hr
BTQRch's Res0I,,t;o,,
tCop,inurdi


"'es' and pre>ervire ii coinDIet- tbro,,,,,,,, -,
'u'ion"I term oil two years in the second sec
uo" "a the hrsi article, lie Constitute, i, ~.
~, sect'oh oil the same article takes up the other
,a e legislature, the Senate. IN the f,s;
Jpn OF the third section, il nroyiles how. and
a., oLH '"e members OF this body shall be at
'' 0hoseh; ana having so provided a f,,ll and
'O"'pie'e Senate, il proceeds IN the sacond ,,r,
o,"i. 10 declare the mode IN which future svacan
40 IN mat body also shall be filed LIS l,,suace
IL. ii vacancies happen by resipnatio, or otbe5-
80 curing the recess of the Legislature of any
' me Executive thereof may make Temporary
| .;II.,',s1 un'i Tue next meeting of the Lee
e's,a'ure' which shall then FIJI such vacancies.
Nv mere 1t Is more clear if possible. than in
&c AOIii'er case, that the 60 vacancy which the
LAC Executive is authorized 10 supplv nv \ lem
! 80 appointment, Is not an original vacancy,
w may so sPeak) but vacancy'' occurrin,,
III 'ne SENATE, after the appointment of Senator
''"S oeeh once made by the Legislature; and which
vacancy has sc happened by resignation or other
WISE NOT only during the term for which the frs,
senator was appointed, but during the recess of the
Legislature OF any State. And if any confirmation
VI 'he correctness of this construction could be
required, 1t would readily be found in the decision
oil TINS Senate itself, in the case of Mr. Ianuan.
.ne senator from Connecticut, made in March 1926
c circumstances OF that case of go recent date
ana ne decision itself being made by the members
now here present, canno, be necessary TO state If
more particularly. The meaning of the terms used
III the constitution being thus fixed and determin-
e"' III the TWO lbSiances where they first occur. we
ouSh' ho' 10 doubt that they were employed in the
same sense where shall next find them.
fi"ving disposed OF the legislative department in
us TlTst article, the Constitution proceeds in The
second to provide for the Executive, TO prescribe
TIE mode OF It's appointment, and to endow it with
us appropriate powers. In describing these pow
ers' The subject OF appointment 10 Offices cons,i
u'es The matter oil the ID paragraph of the second
section OF this article; and this power is therein
deiIneated by these words-s' He shall nominate.
! ana 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 Ststee
whose appointments not herein otherwise pro-
yidtd Tor, and which shall be established bv
law
Had the Constitution stopped here, none could
doubt that the power OF appointment even of the
lowest offices under the government, could not
have been rightfully exercised by the President
alone, at any time whatever, unless in pursuance of
some law providing that this might be done In
all Other cases, this power is expressly granted 10
him IN conjunction with the Senate, without whose
advice and consent ii could be righfuly exer-
csed. But the Constitution does not stop here. -
Having as IN former cases, prescribed the general
mode IN which all original appointments were 10
same section to provide for vacancies Its
language is, The President shall have power 10
.H!I Hp all vacancies that may hGppeR during the
recess OF the Senate, by granting commissions
which shall expire at the end of their next ses-
sion" And il s under this clause that gentlemen
derive the prerogative, which they claim for the
President, OF calling into existence during the re-
cess OF the Senate, new Offices never before filled
and OF filling them at his pleasure.
According TO their theory, the Office, like orisi-
nal sin, has existed throughout all time Aware
however, of the difficulties to which this proposi-
ton would lead, when it should be replied that if
the Office did so exist, it must always have ieen
vacant; and OF course that the vacancy did not
g happen during The of the Senate, - they
have resorted to the distinction between potential
and actual existence, making vacancy apply only
10 the latter state, of the occurrence of which The
President is, III their opinion the sole Judge To
this subtle argument l answer, first that the same
words here used have been shown to be employed
in two preceding clauses of the Constitution. in
reference 10 the same subject of vacancies That
their sisniiicsiIon has been there fixed beyond all
doubt; and has been shown TO refer not TO poten-
tia but to actual Office, in which, being once filed
vacancy has happened, by reason of some occur
renee to the former incumbent And that the same
Interpretation must therefore be given TO the same
words. when they occur here for the third tine in
the same instrument.
Il distinction
between potential and actual Offices, il applies
e &c foriori," TO the of q Judge of the Su-
y preme Court, which Is Office created potentially
by the Constitution itself; and which Office there
FORE If tie argument be right, the President msht
have flle' up any time he thought yroner' o
= ven bAore the Judiciary law was passed Bu, the
r idea that the President had the power Of appoint
y ing Judges Of the Supreme Court when he pleas.
4 ed, because the Constitution had said there shall he
| such Court. h that never euterad ,r,o -
brain of any rational being, any time whatever.
d Every one has conceded, that until law was en-
! acted fixing the number of these judges, their
, compensation, jurisdictions, and mode OF proceed
l. ing, the power Of The President 10 appojnt was
like the Office itself, " an posse, and not il, esse.
i AID the law which would call this potenfrsl
Office into actual existence, must be passed during
the session OF the Senate, that the original vscan-
b cy in the Office could not happen during the re-
cess Of this body and CO. Id not therefore. be flied
up by The President, without their advice and CON
sent. The Judges Of the Supreme Court. howe
YER placed by he Constitution, ~ or irsciseDy
the same footing, in this respect, win Ambassa-
dors and othey Public Ministers. Whoever CON
ccdes then, that The President has no legitimate a
thonty to make original appointment of the
one, must not contend that he has such authorize
as to the other
The same remark will apply with equal force. 10
all other officers of the IT, S. whose appointments
are not otherwise provided for by law. If the
Il President alone cannot appoint any one OF these
whose Office is created by statute until this Office
has once been filed by and with the advice and
consent OF the Senate, more can he alone make
an original appointment OF any public Minister
for they are placed by the Constitution nLon the
same footing. In relation to statutory Offices of
every kind, however, II has never been pretended
by any one, at any time, that the President miqh,
make an ORIGINAL aurtoinfntonf IN fhov,