The sun., 1891-03-11

the case OF an offlce newly created and which
has never been filledp Has a vacancy hap
pened simply because the Office has been
empty since 1t came into e1istence2 On this
question all authoritative opinion has been
positive and conclusive. The word happen
has relation to some casualty not provided
for by law; and the casualty must either
occur or first become known during the
recess OF the Senate. The principle was
distinctly stated by Senator MORRILL, Of
Vermont in his opinion rendered at the trial
OF ANDREW JOHNSON In 1868:
"rhiuss Aappen by chaucs-as BY DEATH resignation.
abssuce-not BY previous contrvancs"
Even where tho vacancy is vacancy that
has happened; that is to say, whore an Office
isempty which had previously been filled. 1t
has uniformly been held by tho highest au-
thorlty upon constitutional Interpretation
that II these vacancies are known to exist
while the Senate is In session, and nomina-
tions are not then made. they cannot be
filled by temporary Executive appointment
during recess OF the Senate. II Gen. HAIR
R1soN Is anxious to get an opinion on this
point from an Acknowledgement whose opin-
ion Is worth having, he can find 1t in VIII
LIAM WIRT's letter Of advice to President
MONROE. dated Oct. "a 1928:
"rhs easualtv which has prevented the cooperation
Of the Senate may arise from various causes: the
sudden dissolution of that body by convulsion
Of nature the falling Of the building In which they
hold their sessions; . sudden and destructive pest
lsnce disabling or destroying quorum OF that body:
such an invasion Of the snsmv ~ renders their
sembAse elsewhere impr able nexpsdisnt; and
thousand other causes which cannot BE- foresesu It
may arise. too from their rejecting nomination by
the Presdent In the last hours Of and mad
vsrtsntly rising before reconciliation bs made"
Mono Of these casualties has happened in
tho present instance The Senate was not
shaken to pieces by any sudden convulslon
OF nature. The walls Of the Capitol are still
standing. No sudden and destructive pesti-
lence or armed invasion has scattered Con.
gress. and no nominations for the new Cir
cult Judges went to the Senate from Gen.
HARRISON before tho adjournment.
In regard to appointments during the re-
cess to offices newly created and not previ-
ously Allied. the established principle Is as
clear as daylight. Judge STORY states 1t In
section 1853 OF his Commentaries on tho
Constitution:
"H the Senate In session when ofness created
BY law and nominations are not made to them By the
Prssdsu. he appoint such saess daring the
recess the Senate because vacancy not AaSpe~
during the recess Of the Senate"
And Judge Story continues. still pointing
at tho very heart Of tho present situation:
special power M uery given the Prssi.
dent to all them during the recess aud It shsn said
shat other instances had the President nsd suoh
vacant ofaess without the especial authority Of the
law"
Tho EvARTs law confers upon the Presl-
dent no such special authority. The Act
provides In its fourth line that the Circuit
Court Judges shall be appointed by the
President, with the advice and consent OF
the Senate"
This is the weight Of authority which At
torney-General MILLER and President HAH-
RIsoN would like to upset. II any Attorney
General before MILLER, except possibly GAR
LAND, under the CLEVELAND Administration,
IN the LAccx8E case, has ever advised his
chief that he might proceed In the recess to
make original appointments requiring the
consent OF the Senate without calling that
body into consultation. we should be glad tc
know the name Of the wonderful light OF the
law. Time and again this identical question
has been submitted to the Department Of
Justice. and time and again the reply has
been similar to that which ROGER B. TANEY
wrote on July 10, 1882. to President JACKSON
The trainers OF ths Constitution had provided fol
aInz the oncss with the concurrence OF the Senate
but forssseiug that from the various casualties &c
which human sds!rs exposed. vacancies would b
found during the recess they gave power TO ni them
until an could bs Afforded Of bringing ths
aDpointnsnu before the Senate; and they nss wordi
which denote the character Of the vacancies vhiot
they foresee may occur and for whioh they are pro
vdins. lie may MI up vacancies which happen during
the recesh But vacancies not de9nedy to he KEEP
open by the President until the recess for the purpos,
| Of avoiding the coutrsl Of the ssuate,"
Or perhaps Attorney General MILLER car
furnish Gen. HARRISON with the tsxt OF At
! torpey- General LEaARE's letter OF April Is