Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1832-08-10


Mons of two eminent lawyers and the concurrence of
Presidents distinguished civilians standing until this day
unnpared, would forbid the round assertion Of the New
York Editor.
At all events, it is apparent that the President has not
acted from the pronptngs of dictdtOridf temper but
with single eye the faithful discharge OF his duty, and
paid only that Difference which in such his official
station required to the lights OF example, aud the opinion
9th legal adviser His motives were pure and patriotic
and his aim faithfully TO execute the law. The end is
strictly legitimate, and venture say but Tor the fac
ous and reckless temper of the Opposition the means
would never have been questioned We would, moreover
ask whether the practice be not perfectly safe while il is
undoubtedly beneficial TO the public! In what manner
does 1t Interfere with any other branch OF the Government
and how CAN'T be called dictatorship? Dictatorship :"
To whom is il "licatorshpi" 30 the Scnae?-They
have refused To act and themselves produced the dilemma
OF winch the New York Editor complains IL the Senate
had acted upon the nomination. and rejected the nominee
IN season. aud the President had pernacously refused TO
nominate another, and afterwards appointed the ndi
yidual, there might have been preext for aSsaing
his motives, though such the opinion of Mr.
Writ would maintain the authority appoint But the
Senate declined rejecting aud held the nomination over
aud in this without knowledge of Wat their cci
sion at the next Session may be- the President might well
appoint, without npcaching their motives, in any
hcr deciding what they should do.
III the authority and duty to appoint he sustained, the
proprety OF appointing Samuel Gwynn is no less clear
ne was IN possession oi the Office and familiar with lis
duties He the choice of Mississippi, OF one of
her Senators, to whom would have been dsrespectl
have withdrawn him from his duties for who might
have been less acceptable TO this State and there was
moreover reason to believe that the Senate
disposed 10 disregard such ponable vouchers by
their failing TO reject the nomination
What then becomes of all this clamor about the case of
Samuel Gwynn? vacancy existed and has been filled
by The President in the ordinary way the laws in pro-
gress OF executions and the public interests carefully pre-
served The President, relying upon the sDgeness and
dependencies and ask the reader, lie perused
the opinions of Mr.. Writ and Mr.. fancy which sub.
Joln TO II he did do ght' Let hear no more of
the case OF Samuel Gwynn, unes, il, commentator OF
the Presidents conduct
(CopY)
ODtce OF the Attorney General of The II. S.
nrfoIa 4
SiR:-Under the of the 18th Nav 1920. s'to limit
the term of office of certain officers therein named SC
L lind that General Swartwouts commission as NAVY
Agent at New York. expired during the last session of the
Senate. Your nomination OF another person 10 fiji that
vacancy was not confirmed by the Senate; aud the vacan
cy still exists.
1t is the then of vacancy which arose during the
session OF tle Senate, but which, from the fact that has
been mentioned, continues TO exist In the recess The
question on which you ask my opinion is whether, under
the Constitution, you fill the vacancy by commission
to expire at the end of the session:
The provisions Of the Constitution on this subject are
l. That the President shall dominate and by and with
the advice and consent Of the Senate shall appoint all of
2 That the President shall have power 10 fill I'M al vu
cancie that "may happen during the of the Senate
ny granting commissions which shall expire at the end of
their next session"
Had this vacancy first occurred during the recess Of
the Senate no doubt would have arisen 10 the Pres
dents power TO fill it, The doubt arises from the circum.
stance Of its having first during the session Of
the Senate But the expression used in the Constitution
Is "happen vacancies that 'may hammer during The
of the Senae'' The most natural sense Of bis
term s"tO chdnceo fall QUITO take place bv acci-
dent But the expression seems not perfectly clear In
may mean 'happen 10 take place." that is 'tO origi-
nate" under which the President would not have
the power to fill the vacancy. 1t may mean ALSO with
which the President would have the right to fill III
by his temporary commission Which of these two
is TO be Preferred The6rst most accortant
with the letter OF the Constitutions; the second ac
cordant with its reason and spirit
The meaning of the Constitution to me 10 result
in this; that the President alone cannot make permanent
appointment TO those offices: that render the appoint
men permanent il must receive the of the Sc
nate; but that whatsoever vacancy shall exist which
the public interest requires to be Immediately filed and
In filling which, the advice and of the Senate can
not be Immediately asked because of their recess the
President shall have the powerof filling by appoint
men 10 continue only until the Senate shall have passed
upon IL or, in the language of the Constitution "Il the
end OF the next session."
The substantial purpose of the Constitution was TO keep
these Offices hleds and powers adequate TO this purpose
were intended 10 be conveyed. But if the President
shall not have the power TO fill vacancy thus crcum
stanced the powers inadequate the purpose and the
substance OF the Constitution will be sacrificed dubious
construction of its letter.
Put the of vacancy occurring in an office held in
distant part of the country the last day the Senac
Session: before the vacancy is made known the Senate
rises The Office may be an important The vacan-
cy may parayze whole line OF action in some essential
branch of our internal police The public may
imperiousy demand that il shall be Immediately filed
But the vacancy happened TO during the session of
the Senate and fthe Presidents powers 10 be limited TO
such vacancies only happen during the recess
oil The Senate, the vacancy in the put continue
however runous the consequences may be TO the public
Cases OF this character might be easily multiplied and il
would seem 10 be highly desirable avoid a construction
which would produce effects, extensively pernicous
il can be done with just respect the language of the
Constitution.
Now, II we interpret the word "hdppe being mere
y equivalent to "happen to exist think we NAV le
ultimately do then all vacancies which from any CASUALLY
happen 10 eXs, time when the Senate cannot he con-
suited as to filling them, may be temporarily filed bv the
President, and the whole purpose of the Constitution is
completely accomplished. The casualty which has pre-
vented the cooperation of the Senate NAV be such as i'm
the case alphabetically stated above. 1t may arise
various other the sudden dissolution that body
by CONFUSION of naure the falling of the bu1inp
in which they hold their sessions; sudden or destructive
pesience, disabling destroying quorum of that body
such an Invasion OF the enemy renders their assem-
blage elsewhere impracticabe Inconvenience and thou
sand other causes which cannot be foreseen II NAV arise
too, from their rejecting nomination by the President in
the last hour OF their session, and inadvertently rising be-
fore denomination be made. In all these cases
there is guilt either the part Of the or of the
President But by casually the vacancy happens TO
continue and TO exist in the recess; the public good
nay, tie safety OF the nation may require il 10 be
forthwith hed Looking to the of the case WHY
should not the President have the power to fill it, In rea
son 1t appears 70 perfectly immaeria when the va
the Senate during their Il equally requires be
filled. The Constitution does not look to the moment of
the origin Ct the vacancy but TO the state Of things At the
point Of time al which the President is called on 10 act Is
The Senate in session. Then he must make nomination
Is il in recess? Then the President fill the vacancy
by temporary commission.
This the only construction Of the Constitn-
ton which IS compatible with its spirit, and pur-
pose, while at the time IL offers violence Ian
guage; and these, think the governing points to
which all sound construction looks
The opposite construction is perhaps strictly