Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1831-03-24

guilty Of breach a duty he sppoin,ed the IN during
the session, aud did net send in tue nomination the
Senate.
TWAS said on this suh-c', tina, no President bad
ever dared 10 NIL up an o'gnsi vacancy, in aoy oce,
alter the mi o. the session IN which he law Nhieb
created the ctiice bad passed. Wa ,her N was tho
want o! courage, or OF iucoston that pr sveutd the
performsoce OF a" improper ac', cannot say. But a.
Is Admitted that the act was rot done, perhaps /,
might be qnit. proper TO attribute il the latter eau
But the fact, IL It be one strongly exemplihe. nv con.
shneon' Any office, hr.' created by law, mus. be
vacant at ,he the law is approved by the Pee.
sheni. That mus necessarily be during the session oil
the Senate He is therefore, bousd 10 fill IL: because
me vacancy net only happens during the session. but
also comes to his Knowledge at that period. But
suppose law to be passed. requiring the sppointm-n
OF certain officers, W ch is TO take effect until dis.
tant period that 10 Dependant on event
and ct that tue the Senate should not be IN session
can be doubted that the PsesiJen, would be auho-
tzed to makea temporary appointment to fill such
original vscancy! IL he could, by what authoryi Not
tho law surely; tor that cannot alter constitutional
right OF the Senate unless the office be an inferior
aud 'he right TO I'LL without the concurrence Of the
senate be expressly given by the laws it must be the
by the liberal construction of tho section which con.
tend is the true construction. On which subject sir
permit me TO slate manifest di6, renee in the rules
ior interpreting tho Constitution. When the que son
10, whether certain power is an ed by Il to The Gen
ersi government, or reserved 10 the Staes--n that
ought no, to be rcsed. But where the States have
soniessedy par cd with, and do claim the power:
where II IL plainly their OBJ and their interest
should be exercised by the Federal Governm, Mt and
the only question is, by what branch ami IN what man
per-then The true rule Of nerpre tauon is that
VII, give Effect to the power, rather than Shat
wnicn would destroy It, In tho case of interfering
claims between the States Individually end their fedey
al head the Mid must be convinced that the power in
question Was intended to be granted before can come
10 the conclusion that belongs TO the neral Gov
eminent Whe there is doubt, there can be no .nch
cone'u.i'n Therefore, the power must rest as il was
Is, with the State Government. But in the ques-
tiop how power cons ssedly granted is 10 he eyer
clsed-'hen such absolute certa nty is not reoujr.d
me nrst ou'y OF the exposure is TO adopt some con-
eosIn ,ha' w give effect to the declared and
iessed grant oil power. And although there NAV be
eooos as TO the agency by which the intent is 10 be
executed, yet they must be weighed and the de cison
made according to the preponderance of The in
FAVOR oil eiher OF The departments claiming Il. THUS
In the present instance, the underied an expre
intent Of the Constitution that offices should be filled bv
tue fresiden' with the advice and consent of the SEN
ave wheh iney were IN sessions and by atmporary ap-
Pointnent IN the recess. The evident in ent then
na' mere shall be no Vacancy. The words, however
give rise 70 two constructions BY the one, this eyi
Dent intent will be carried effect By adoptpy il ber.
VIII De no udcdncy Tor longer period than elspses b,
iore comes to the Knowledge of the President By
me omer ln many most important this intent wi
be defeated; the office remain vacant for IN. in
convenient and sometimes exceedingly injurious peri.
ou OF elga' or nine months Which of these construc-
tions are we to adop! should incline 10 think IN.
former would rot only be the best but the safsi for
NOT single Inconvenience, that have teen able TO
discover, or ths has been suggested, will attend the
appointment 10 h vandDcy which occurs during the
session, but which is unknown to the President mil
the reces', not single Inconvenience that will No,
occur " Ue vacancy happens in the ybiIa
necessi Tor hlling 1t is equally evident in both cases
"ehiiemen, Tor whose judgment have the bigbes,
respect know differ from this paint; and il
probable they may be right. / sxpress nv onnio,
merely because the occasion calls for it, ami nv con-
sh'uehs and The public have right 10 the station I
occupy to understand it. But although il laws at The
potion 81 d'e argument which has been used by IN.
Senator from Virginis, do think ne TO show
be decided. f =" "
The reasoning have hitherto used, is applicable .
the appointment Of all officers well AZ Mnj.ier IN
iorelgh Powers as Others but there are reasons ms
lar TO me former which place The authority to commits
slon them during the recess, on a different yround
The Office OF Minister to foreign Power derives H.
authority from the law Of nations The intercour..
which the political relation of different States towards
each, 10 modern times requires, their mutual wants
and the Gently which exists between them ,nder he
frequent, aud generally the Mt Intervention nj
agents rom one 10 the other necessary. Every civil.
izeu naion must necessarily have the power of appoint
ing and receiving such agents. vested in some one mr.
more OF Its departments. In the Con, tuton of The
oned States this power is divided: the Preside mt alone
mas the right to receive foreign Minister'S and by the
power 10 make treaties, subject the asse at of the
Senate; that OF making these treaties himself or AZ
scessy consequence, that of appointing the persons
oy whom they are TO be made. No law, therefore
was necessary to give effect the exercise of this
function The the first Preside nj entered into
once he had the right to perform IL, either by himself
The Laws OF Nations, however. to which 7 have
referred, make distinction, I hope abundautly
TO prove between two classes of agents bv whom ,bs
diplomatic intercourse may carried on il
es between public Ministers and pripafe Agents. In
the hrst, included AHbassado rs Envovs Ordinary
and Elk raordinary, Ministers Resident Charges pa
fares Consnls, &c. In the second class there can he
no grada'ion OF rank, bat the powers NAV be as exen
siVe as those given to any Of the others The power
70 make treaties, then, includes that of appointing
agents, as well OF the of the other class But
the Con itution has placed limitation on the pov ar
OF appointing thoss of the FIRST class and having given
none to that OF the second the Pr resident has il without
restriction. In this branch Of the argument however
our inquiry relates to the public Minister. onIyand
the question liz, whether The Pre,dent has RIGHT IN
apPonteuch Ministers during the recess of the Senate
either to power with whom we before had sent mn
such Minister, or to Gil vacancy in the mission TO
country where we before had Minister, IL that va.
cancy shonld have occurred during the session of
nena'e This Is here the sole question: for admit tn
in all cases oil appointment to public foreign missions
made IN the recess the PRECEDENT bound 10 submit tbe
nomination TO the Senate at its next meeting This il
my reasoning on that subject Having the power to
make treaties, afterwards TO be submitted 10 the Sen
ate the President has the right to select the nation
with whom such treaties are TO be made and the time
most favorable for making them That time NAV occur
during The recess OF the Senate axd he has
me power 10 bill the original vacancy bv the an
pontment OF public Minister but in that case II the
negotiation 10 earried on by such Minister he must
SEND IN the nomination TO the Senate, at some time du.
ring Their session. II he wishes the appon 10 con-
tnue beyond that period II, the contrary he finds
no occasion Tor extending the powers Of the Minister
beyond me time at which his commission would expire
by the constitutional limitation; ifhe knows for exam
ple that the treaty will be made at that time or the
negotiation will be broken off, he may at his
omit sending in .ha name for confirmation He must
do this az he does all other discreet acts der
DIS responsibility to the nation; but in nv ouinon he