Staunton spectator. [volume] (Staunton, Va.) 182?-183?, 1832-08-24

might arise nom accident, and the
contingencies to which human affairs
must always be liable.-And if it falls
out, that, from death, inadvertence, or
mistake, an office, required by law to
be filled, is in the recess found to be va
cant, then vacancy has happened in
the recess, and the president may fill it.
This appears to be the common sense
and natural import Of the words used.-
They mean the same thing as if the Con-
stitution had said eff there happen 10
be any vacancies during the recess."-
The trainers of the Constitution had
provided for filling the offices, with the
concurrence of the senate; but foresee-
ing that, from the various casualties to
which human concerns are exposed, va
cancies would be found during the re-
cess, they give power to fill them, until
an opportunity can be afforded of bring
ing the appointment before the senate
and they use words which denote the
character of the vacancies which they
are providing, He may fillup vacancies
which happen during Che recess
But vacancies are not de5ignediy to be
kept open by the president, until the re-
cess, for the purpose of avoiding the
control of the senate. And the word
"happen" is used to describe the class
and kind ofvacancies, and not the par
ticular time at which they took place.
might suggest another case, show
ing that the restricted construction con-
tended for, cannot be the one contem-
plated by the trainers of the Constitu-
ton. Suppose nomination, made to
vacant office, and confirmed by the
senate: The office is not full, until the
person appointed accepts. Suppose he
refuses to accept, and his refusal is not
known until after the adjournment In
such case, the original vacancy would
remain untitled and as it took place du-
ring the session, and not after the adjourn
ment, the president could not fllit. 1t
cannot be imagined that such cases were
intended to be excepted, out of the
power granted to him.
1t has been said that this power, if
possessed by the president, may be so
used as to defeat the intention of the
constitution, and exclude the senate from
all share in appointments. The answer
to such an objection appears to be a
plain one. If the president wiil(uliy a
buses power given to him, the consti-
tuition has provided remedy. In this
case the senate have had full opportu-
nifty of acting, but have not acted, and
have held the nomination under advise
ment. and left it to fak vacant as soon as
they adjourned. They must be suppos-
II - L-TS IL efficient reasons for
keeping the nomination IN tne ,nH Pov ~,
and suspending their action upon it
The president could not nominate anoth-
er person for the same Office until this
was disposed of, was either Withdrawn
by him or finally acted on by the senate.
And as the senate have had an oppor-
tunity of acting, but have determined to
suspend their decision | cannot see how
any appointment, now made by the
president, can be supposed to interfere
with the rights of the senate. There is
nothing in the case that can be constru-
ed into desire to avoid their conjEitu.
tional control.
II, however, the restricted interpre-
tatlon contended for, were admitted still,
IN the case before me, the president
would have the right to appoint. The
vacancy did take place in the recess
lhe former appointment continued dur
ing the session, and there was no va
cancy until after they adjourned. The
vacancy followed the adjournment and
whether it took place immediately after
wards or at distant interval can make
no difference. If it took place after the
adjournment; it happened during the
recess, according to the narrowcst inter
probation proposed to be given to the ar
ticle-and consequently even in that
view of the subject the president has a
right to fill it.
do not, however, desire to place my
opinion on this ground-But upon what
! believe to be the true construction of
the constitution as before stated.
In the case of Amos Binney, Mr.. AID.
ans must have proceeded on the same
construction of the constitution with the
one have given.
The commission of Amos Binney, as
Navy Agent of the Port of Boston, ex-
pred by operation oflaw on February
10, 1925, during the session ofcongress.
He was nominated for the same office
February %, 1925. The session closed
on the Sd of March, and the senate ad
Journed without acting on the nomina-
ton. They were convened on the 9TH
/ & L.