Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1843-06-23

The PRESIDENTS PowER OF APPOINTMENT
IN THE RECESS OF THE SENArK.-A writer in
the Newark Daily Advertiser, thus disposes Of
the question Of what creates the vacancy, in the
case Of non.acceptance of an appointment
made by the President and Senate.
THE COMMERCIAL AGENT TO CHiNA.--What
constitutes "a vacancy" in the true extent and
meaning Of the Constitution has never been ju.
dicially decided, although an opinion was given
upon one occasion, by the Supreme Court, on
this very question under the following circum-
stances, to VITA Mr.. Marbury of the Dis.
trict of Columbia had been appointed Justice
Of the Peace by the elder Adams. His appoint.
sion made out, signed by the President and left
in the Office of the Secretary of State for the
affix of the seal and record. Marbury did not
call for his commission until after the accession
to the Presidency of Mr.. jefferson, by whom the
commission was withheld. Mr. Marbury ins,i-
tuted proceedings to ascertain whether the non.
possession Of the commission created vacancy
in the office. The question involved was pre-.
cisely the one now under consideration, viz -
what constitutes "a vacancy" as that term is
used in the Constitution. After CAREFUL inves.
tigation, serious argument and full deliberation,
the Court gave it as their opinion that when a
commission was signed by the President, the
appointment is final and complete, independent
ly ofthe acceptance of the appointee." trans
crbed portion of the reasoning upon which
this opinion is founded.
"As the transmission of the commission is not ne
cessary to give validity to an appointment still less is
its acceptance The appointment is the sole act Of
the President, the acceptance the sole act of tile officer
and is in plain common sense posterior to the appoint
ment as he may resign so he may refuse to accept;
but neither the one nor the other capable Of render
ing the appointment non-entity. That this is the
understanding of the government is apparent from
the whole tenor of its conduct. commission bears
date and the salary of the officer commences, from
his appointment, not from the transmission accep-
lance Of the commission. When person appointed
to any office refuses to accept, the is nomi
mated in the place Of the person ,rho declines TO accept
and not in the place of the person who had been pre-
viously in Office and had created the original vacaii-
cy."- Marbury VS.. Madison, |, Cranch, b. 1877.
Thus it will be seen what Specification the
term vacancy" has as il occurs in the Consti-
tution.-in the opinion of the Supreme Court
Now for the facts of the case. A law is passed
requiring the appointment of an agent to China.
Mr.. Everett is nominated as that agent-hs
nomination is confirmed by the Senate-the
commission is made out and signed-the broad
seal attached, and forwarded to him. Mr.. Ev-
erett declines to accept-a vacancy is thus ere.
ated during the recess of the Senate, and the
Executive, in the exercise of powers confided
to him by the Constitution, (and not looking TO-
or regarding the acts of a coordinate branch oil
the Government,) fills that vacancy, by the ap.
pointment Of Mr.. Gushing, and he bears upon
his commission the broad seal of the United
States affixed, by one whose duty it islhnder the
constituted government to affix il,