Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1831-04-12


very obvious, that original vacancies in these can
never during tho recess Of the Senate. Be-
cause, these Offices derive their existence from
statute which statute only be enacted during the
session of the Senat; and az these Offices when
thus created must be vacant, all original vacancies
in statutory Offices must during the session,
and not during the recess of the Senate. Conse-
9uenly. the President can have power to fill up
such vacancies
There never has been hut single instance of an
attempt by any President, fill up such vacancies
durisg the recess of the Senate. This attempt was
promptly met by the Scu'e, who, not content with
rejecting the nominations afterwards made, of the
military officers who had heen appointed. referred
the subject To a Committee. Their report pi ,sen-
ting it does clear and sound exposition of this
part of the Constitution, and able vindicaion of
the violated rights ut the Senate, received the
hrmation ofthls body, whose views were afterwards
assen:ed to by the Executive, as we all know
Then no doubt exists that the President alone has
no authority to make an original appointment. to
any statutory office.
The Offices of the Judges of the Supreme Cour ,are
the ouy description of Offices of the second kind
These offices are created by the Constitution itself
and are thereby required to be filled up Here
then is the CAGE not of potential but actual Offices
not OF possible Offices that may or NAV not be re-
CURED to be filed up, but of existing Offices order
ed by the Constitution itself to be SUPPLIED with in
cumbents. Yet President Washington during whose
term these offices were all &C vacant and thus con-
tlnued for a long time. never thought that he nos
sessed the power to fill them up, until after the en-
acton OF the Judiciary law: and did Sc then only by
and with the advice and of the Senate first
obtained.
Nor could he have done otherwise. Fo. until
the passage of this act of Congress, how could he
know what number of Judges to appoint-what
would be their saares-where they were to convene
what might be the duties required of them-or
what the rule to regulate their process and procee
ding-nay, by what other means could the Court have
neen supplied with Clerk, Marshal or any other
Ministerial officers indspens IDLY necessary to the
proper performance of their functions, I, would
nave been as absorb for the President To have made
tne appo ntment OF Judges before the cnaction Of
TINS statute as It would have been for the Governor
OF state to have issued writs of election before
the legislature of such state had passed the laws
necessary to- give effect to that provision of the Con
sttution, which required the members of the House
OF Representatives to be chosen
IN after time, when none of these difficulties eys
teu' and the number ofthe Judges of the Supreme
Court was increased, although the new Judge, when
duly appointed, like his associates was in under tho
constitution, yet 1t was CO rceded all hands that
the ONCE although required by the Constitution was
established by the law; and therefore, becom,nG Va,
cant during the session of the Senate the presden
could not MI this vacancy during tho recess but
must make The first appointment TO it, only nv and
with The advice end consent of this BODY
When we thus see, hat the President cannot mako
an o'tSm"t appointment TO any office created ell her
by statute or by the Constitution, because the vacap
ces IN such offices cannot properly be said tn b,,
pen during tho ofthe Senate Is II fair to ~
que, that he has authority to make such aDnont |
Ients to the other class of offices whicb arc es.h
shed Cot oy statute but by usr ge merely and which
are not required, but merely rrcngniz ed no IN. g.
stitution of possible usea Does no, evorv No.,
ment applicable to the case of The JUDGES cf tbe g,
pFeme Court apply fortiori to these etf1ces3 OIL
now many ministers must the new mission consist
who and of what character shall be tbs o.,.b.o -,
The leSatlon-what shall be the compensation allow
ed 10 any of the mIsslon-aEd for what term NAV
they hold their offices? All these are ouast;ons
which must be decided before such appointments
can properly be made; and the decision IF CT ,f
these questions by the President alone is forb ddsp
by the Constitution in terms
And here Mr. President, viii! offer suggestion To
the Senate which upon my mind has always hsd
mueh influence. IL Is not more the object of this Con
5fituon to create and confer power than 1t is 10 check
and restrain the authorities which # grants ~, ~,
oorant authority is thereby granted to any denart
nent of this government, unless it is limited and
guarded IN its exercise, by some means or other
Speaking 1-'neIaliy, the Judiciary can establish no
ulc, which the Legislature may not abronate. con
no decree, which The Executive NAV not
refuse to execute. The Executive can do no ect
gainst which tho Judiciary may no, relieve which
INC Legislature may not annul. 10 which they
may not refuse to give effect. The Legislature itself
can enact no law without;he assent of the Executive
and which IS not subject TO the revision of the In
dietary whenever it comes in conflict with the Con-
Stituton And the States, in virtue of the rights re
served by them parties to the or p,nal comnact
all and each of the departments of this government
so as that none may pass beyondits prescribed lma
NOW can any enc believe, that in such a system so
intended and so contrlved, it ever was DESIGNED n
confer the vast power which has been excrted mon
this occasion, (Which as I have shewn touches and
influences our best and dearest interests) 10 the
discretion OF the President alone, Tho
plain language Of he Constitution las think have
proVed) rcpudiates any such idea; and if this IAN
,uage was doubtful, the spirit which dictates every
inc OF that instrument, ought to suffice to solve any
uch doubt.
have heard single case suggested, to which, las
seems to present difficulty to the minds of sone)
must beg leave to pay little attention. l have
eard 1t asked, if the President may not fill I'D any
acancy but one that happens during the recess Of
ne Senate what would be the condition of the coun
~, sf an office, which the public good REQUIRES To
e filed Immediately, should become vacant by
eath or otherwise, happening during the session Of
he Senate, and which event could not be made
.nown to the President until after our adjournment?
70 this question have several answers 10 give
either OF which, to my mind is quite satisfactory.
The hTsl IS, that it is extreme case, which
must be OF very rare and the very neces
lty OF which, whenever IT shall exist, may we'll ok
use the President for acting upon it, even without
my direct authority so to do But we shoHld be
cryt.ya -, 81