Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1831-04-29
CHE Constitutional gWtt0.
70 THE Eprross OF rus Wuc,

guiShca senator denying the power of the President
OF Inc mated States to origt,"fe mission: and not
outstanding this, a,n compelled 10 say, that am
stu unconvinced To assert this, am sure will, IN
the estimation of many, DC deemed somewhat AFRO
CANT, and in that of others, savouring little OF
oostiuacy. These am prepared to hear expressed
against me. and yet will venture to write out the
reasons of my opinion, and to publish them TO the
world. If you will So far aid rue, to insert them il
vonr paper.
Wills, dissent from the hon. Senator. in the
conclusion he aims al, because his reasoning has not
unmoved my former communication that such pow
vested in the President, cannot but express
my admiration of his consistency and his devotion to
what he considers the construction of The coustitu
ton. There were nc doubt many reasons which
would have operated with mere partlzan. clrcum-
stanced as he was to remain silent; he however pre-
tered his country 20 his party and for this deserves
and shall receive my warme,t appreciation.
Tie hon. Senator, in his usual emphatic style, de-
MES the President the right, in time of peace. IN
the recess of the Senate, In commission Minister to
any Court, with which the United States heretofore
had no diplomatic relations 1t is frou tubs PROPOSE
ton that dlss nt
The clauses in the constitution bearing on this qucs
ton are these: "He shall have power by 81 with the
advice and consent of the Senate make treaties
provided 'wo thirds of tho Senators present concur:
"and ne shall nominate and by and with the advice
land consent OF the Senate shall appoint embassa-
doris other public ministers and consul, Judges of
the Supreme Court, and all other officers whose ap
'pointmcnts are not herein otherwise pro ,ided for
'and which shall be established by law"
1.-The President shall have power 10 fill trp al ru-
cdpctes that may happen during the recess of ti.e
Senate, by granting commissions which shall expire
at the end ofther next session."
AS 1t is my purpose, at any rate nv desire "not
10 Jump from my premises to my conclusion" will
endeavor TO move step by step in the argument in
order that my path may be distinctly traced and nv
course, If erroneous exposed Truth and truth only
l seek IN this investigation.
The Federal Government was the creature of
the States. Its life commenced With the election
NIrn LIANT Oh
OF the Senate and House of Representatives. Their
election by the people and the legislature of the
States first gave form to the confederated Union
This was contemplated as the commencement of
the Government by the trainers of the constitution
1t had however been foreseen that these officers
were not alone sufficient to adnniste the government
Power by the Constitution was, therefore, given Them
or some of them to appoint the other officers This
Is contained in the clause above written, which
will now examine. 1t contempates
LIST. The filling up of such Offices as were created
6y the constitution itself. OF this kind are the
Jndgships of the Supreme Court. These officers
We're created by the first section of the 3rd article
which declares, ''that the judicial power shall be
vested in one Supreme Court, &c"
end class, whose offices were not created bv
the constitution, but TO be established bv lsw
that Is by statute. Most of our Domestic Executive
officers (ssys Mr. Tazwell.) are examples of this
kind" ~
admit, with the Honorable Senator that the
hrst kind of offices, though CONSTITUTIONAL could NOT
be filled without previous law. $50. tsavs hoy
until the passage Of the act of Congress- how could
he 1.-THE Presidency know what number of Jud,es a
appoInt-what would be their selaries-when thew
were TO convenc-what might be the duties reouired
OF them, what the rules regulate their prochr,
and pleadings' Nay, by what o,hor means could
the court have been supplied with clerk marshal
or any other ministerial officer indispensably ne
cessary TO the proper performances of their fuctonsa
l make this admission, not for al the reasons
assigned by Mr. TazeweIl, but for one onIv
that the number of Judges was le:t indefinite BY
the constitution If the number had been 6x-
ed, the President could immediately have mad.
the nominations, and the Senate might have
confirmed them. Their pay the place of their
meeting, their duties, their rules OF process and
pleading their clerks, marshal and other ministerial
officers might all have been regulated and tablisb
cd just as well by subsequent as by preyious
statute. Nay, maintain that if the Judiciary bill
was now repealed in toto, the Judges would continue
10 hod their ONCE, though, to be sure, it would be
very poor, idle and pageantless one.
We, however, agree in this, that neithsrgthe first
nor second class of Offices could be filled without
previous act of Congress- that is previous sfnente
made BY 6oh Houses of Congress. This previous
action OF the Senate and House of Represent stvr.s
IN both classes, is reqrslt to filing he efice. In
the first in prescribing The number Of Judges and IN
the second in creating the office itself
lie shall nominate and by and with tho advice
and consent of the Senate shall uppo,n, GmJassadors
other public ministers and consuis To which rlassI
do these officers belong? Does the creation of thei,
offices require the previous action of both Houses of
congress-! tbS is inc question, tue Important uues-
lion, nay the basement question of this controversy
II this is settled in the negative the edice Is sure
III otherwise 1t will be built upon sandy foundation
Does the appointment ''of ambassadors, other
public ministers and consuls," require the previous
action OF both Houses of Congress? Is il absolutely
necessary that bill should pass the House of Re-
personalities, creating the Office, before the PresI-
dent and Senate send a minister abroad This
has never been naiBed and connot be msintained
without destroying the exclusive character of the
power vested in the President and Senate to make
trcaries The very moment the House of Represeu-
tatives say to the President and Senaie, vow
cannot send minister abroad without preuiousIy
consulting U.s. the power Of making treaties and con
ducrIng The foreign diplomacy of the country is no
longer exclusively vested in thep--the House of Re-
presrnaves from that instant become sharers Of it,
Taking it for granted therefore, that the previous
action of the House of Represen atves is necessa-
~ to send ambassadors or other public ministers
abroad ask hoo is the office created? II is not crs-
lted by STATUTE and Mr.. Tazewell admits it is not
created by the Constitutions for he contends that The
offices Of the Judges Of the Supreme Court arc the
only description of Offices created by the Consttu-
ion ITSELF Here then is class Of Offices, which are
not created by The Constitution, yet 10 be created