Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1831-04-14
9QM9M8S Sg0WAEs
rwENrY.rIRsr coNGRrss-srcoND SESSION
SPEECH OF MIR. T1ZEwELI-C.,r,.v,n

MI Presiden' 1T me PRESENT the subj ct TO ,be Sc
ha'e under ano'her aspect. Whatever d f.rences ,
P""n usy Sst as to The ori<n cf oar different eff
CO. tnS we must all agree, that he power OF tn
Resident tn sane, Ia g.id to tpro ntmsnt, Il
'nem all The Const tui0 in auth rizing him 10 noni
nate, and by and with the advice and con..n, n b
senate 70 appoint to all fiji :e- draw iii nc j. n in
the moua oil appointment any; aud his separate DO "
Y. over OH vacancies which hipprn during thu recess
VI he senate Is he same N matter W a, may be the
origin or nature OF the vacant office. The II his DO W
er over all is the zane in both cases. let Us cx,mip.
tue diff rent subjects to which this id n,icsi pow nav
be applied aud perhaps we ma; 80 discover lbs N,
ot the power itself.
According 10 The orinion OF some, there are three
different sp ces OF oi referred in III Constu-
hon-sHch "a are created by .taute-.uc a. are crsa.
a'ed y The Constitution iself-and such "A. being es-
t.oisbed by the usages OF DaroHs, merely tecog
nzed by the { n',i ,uivn. Most OF don ,ic Eek
ecuve offices examples Of the first kind; he CHI,
Juse-. and bis associates Of the Supreu Court ar.
examples OF the second; aud anbas ajors, her public
ministers ard consult. instances OF tn, Iast-Now
with resp to all oifce' the class, tina, IL TO
cay ohces created by s'aius, il isve,y obvious, tha,
original vacancies NJ these, during the
recess OF The Senate. Because as these offices deriv.
their existence om Sta ute. whr h -tau C. IN only
be enacted during the session of he Snsu; - ,brse
otfces when thus at, be vacant all original
vacancies In statutory iii must during he
sesNon a1d not during the recess oi the Senate. Con-
seqnen'iy, the Pesiient ca. have pow 10 fill up
such vacancies.
There has been br sin Sla iu.iance o. an at
tenn by any President, I'LL w ali such vacancies
dueins the recess of the Senats Til, attempt wa.
promptly met by the Senate, WHO 10; content wi b
eJscurg The nominations ait-rwa DIS made, of the mil
iary Office "hn had been appointed, referred the
SUBJ Ct to a Comm tes Their report; presenting as
4 does cl-hr and sound exposition of this part of he
Constitution ard IN able vudIcs ion Il the violated
rights OF the Senate, received In. Confirmation Of this
body. whose views were afterwards assented to by
'he Ex-cu'iv-, "a we all know. Then, no do. b. ex-
ss, hat the Presiden, alone, has hurity to make
an 0rtgind Apu inimen TO aoy .stu DRY office.
The Offices of the Judges of the Supreme Court are
the only description of Offices of the second kind
These Offices created by the Constitution ITSELF and
thereby required TO be filled up Here then is the
not OF potential but of actual Offices not OF posi-
BILE offices that may may be required be filed
up, but OF existing offices ordered by the Constitution
itself TO be supplied with incumbens. Yet President
Washington during whose term these offices all
so vacant and thus continued for long time, never
thought that he possessed the power 10 fill them up,
until after the enacon Of the Judiciary law; aud did
so then only by and with the advice and of the
Senate firs obtained.
Nor could he have done otherwise. For until the !
passage OF this act of Congress, how could he know
what number Of Judges 10 appoint what would be |
their saaries-whcre they were to convene-what
might be the duties required of hemor what the rule
to regulate their process and proceeding nay, by what
other means could the Court have been supplied with
Clerk, Marshal, any oher ministerial officers in
dspensably necessary to the proper performance OF
their functions. Ii would have been as absurd for the
President TO have made the appointment of Judges be-
fore the enacton OF this statute, il would have been
Tor The Governor OF State TO have issued wrs of
election before the legislature of such State had pas
sed the laws necessary give effect that provision of
the Constitution, which required the members of the |
House OF Representatives TO be chosen.
In after time, when none of these difficulties existed,
and the number of the Judges of the Supreme Court
was increased, although the Judge, when duly
appointed, like his associates in under the Consii-
uon yet was conceded all hands, that the office
although required by the Constitution, established
by the law and therefore, becoming during the
session of the Senate the President could not fiji this
vacancy during the recess, but make the first APP
Poinmen oi only by and with the advice and consent
Of this body.
When thus see, that the President cannot make an
original appointment, TO any Office created either by
staIue or by the Constitution, because the vacancies in
such Offices cannot properly be said happen during
the recess OF the Senate is it fair argue that he has
authority TO make such appointments TO the other class
of offices, which established not by statute but by
usage merely, and which not required, but merely
recognised by the Constitution of possible use Does
not every argument applicable to the OF the Judg
OF the Supreme Cout apply fortiOri these Off
ces? Of how many Ministers the new mission
consstwho and OF what character shall be the attaches
TO the legation-what shall be the compensation al.
lowed to any OF the mission-and for what term may
they hold their Offices? All these questions which
must be decided before such appointments proper
~ be made; and the decision of each OF these ques-
tons by the President aone is forbidden by the Con-
stution In terms.
And here, Mr. President, will offer a suggestion
to the Senate, which upon my mind has always had
much influence. 1t is more the object of this Con-
s;iuon 10 create and confer power than it is TO check
and restrain the authorities which il grants No mpor-
ant authority is thereby granted TO any department of
this government, unless il is limited and guarded in its
exercise. by some means other. Speaking general
y, the judiciary establish rule, which the Lee
gisature may not abrogae, can pronounce decree,
which the Executive may not refuse 20 execute The
Executive can do act, against which the Judiciary
may not relieve, which the Legislature may not annul,
or TO which they may not refuse TO give effect The
Legislature itself can enact no law, without the
of the Executive, and which is subject the revi-
sion of the judiciary, whenever il in conflict
with the Constitution And the States, in virtue of the
rights reserved by them parties TO the original
pact, may watch over and control the joint several
action OF all and each of the departments Of this govern
ment, that none may pass beyond its prescribed
lims.-Now can any one believe that in such a sys-
tenn so intended and so conrived il design
ed, TO confer the vast power which has been exeTed
upon this occasion, (Which as have shewn, touches
and influences best and dearest inerests) the
controlled discretion Of the President alone The plain
language of the Constitution Gas think / have now
proved) repudates any such idea; aud if this language
doubtful, the spirit which dictates every line
doubt.
have heard single Sc tugge ted, 20 which, (As
IL sems 20 present icuity to the mIUd OF some,)
mus beg leave 20 pay Ii lie attention. | have heard
/. stktd IL the Presilfut may Lot oil up any vacaury
but one tina, happ dtipg the recess OF The Senate
wha, would be The condition OF the country, ii an OIL
fee, which the public good requires bs filled imme-
da ely houlI become vdcani by death or otherw ise
hdIp ning during the session OF the Stnate and which
could be ads known 10 The Pres dent until
ales al ourDmenP TIE this question have several
TO give, either Of which TO my MUD quite
satisfactory.
The FIRST IT, hat i, is an extreme case which must
10 a Vsry RAJ e.di 80 nj