The sun., 1891-06-12
A Badly Advised President.

N DsuAy huVhbcu EENeiuCuts
Three Republicans and two Democrats
were appointed by President HARRISON on
Wednesday as Justices Of the new Court
OF Private Land Claims. The appointments
are said to be good. That may be or
may not, but the merit Of tho individuals
chosen by Gen. HARRISON Is not tho most
interesting question involved.
The act OF Congress creating the Court Of
Private Land Claims was approved by Gen.
HARRISON on March 8. tho day when he
also signed the act establishing the new
Circuit Courts OF Appeal. In this case. as In
that, the appointments are original appoint
ments. requiring tho advice and consent Of
the Senate. It Is not merely q filing Of va
candles occurring during tho recess Of the
Senate in Offices previously existing. Tho
same principle Of Constitutional limitation
on tho power Of appointment, as has been dis
cussed and clearly established In tho case Of
the nine now Justices OF the Circuit Courts
Of Appeal. applies to the five now Justices
Of the Court OF Private Land Claims.
Gen. HARRISON has gone ahead and ap-
pointed these judicial officers without ask
ing the advice or waiting for the consent Of
the Senate; and Jet the confirmatory action
Of tho Senate Is expressly required by the
language Of tho statute: "A Chief Justice
and four Associate Justices, to be appointed
by the President. by and with the advice and
consentoi the Senate"
II asked by what authority he has ap-
pointed these Justices without the advice
and consent OF the Senate. the President
would undoubtedly reply: Under the last
paragraph Of Section 2 OF Article Of the
Constitution. as interpreted by that emil
nent Constitutional lawyer. tho Hon. BEN
JAM1N HARRISON"
But the clause In question merely empow-
ers the President Ito fill up all vacancies
that may happen during the recess of the
Senate by granting commissions which shall
expire at the end Of their next session." and
higher constitutional authorities than tho
Hon. BENJAMIN HARRISON. both on the
bench and of of it, have held with JOSEPH
STORY, In his Commentaries on the Consti-
tuition. that III the Senate are In session
when offices are created by law, and nomi-
nations are not made to them by the Presi-
dent, he cannot appoint to Such offices dur
ing q recess OF the Senate" because a va
cancy does not happen during the recess of
the Senate.
The Offices OF the five Justices Of the Court
OF Private Land Claims expire with the
Court on the last day Of December. 1895.
The statute makes tho Court a temporary
establishment That, however, does not af-
feet the principle OF appointment or lessen
the Presidents responsibility. For him to
follow the example set by Mr.. CLEVELAND
in the case Of the Interstate Commerce
Commission Is a bold defiance OF both the
text and the spirit OF the Constitution.
One other point is worth mentioning: Tho
act creating the Private Land Claims Court,
while providing that the powers Of the Court
shall cease and determine on Dec. 81, 1895.
prescribes no date for the Courts organiza-
tion. II Gen. HARRISON was disposed to
evade his plain duty to call the Senate to-
Rether, and make these important judicial
appointments in this case In the proper.
Constitutional way. he might have waited
until December without disobeying the law.
The law creating the several Circuit Courts
OF Appeal, on the contrary, fixes date for
is June i6, next Tuesday.
VIII the announcement come this morn.
Ing. or on some morning between now and
Tuesday next, that the President HARRISON,
acting on the advice Of the Hon. BEN-
JAMIN HARRISON, has dared to 60 even
further than Mr.. CLEVELAND went in dis
regard Of Constitutional restrictions upon
Executive power, and has made these nine
appointments to life Offices without the ad-
vice and consent Of tho Senator
Perhaps he regards the advice and con-
sent Of the Hon. BENJAMIN HARRISON as
equivalent to the advice and consent Of the
United States Senate.