6132. OFFICES, Vacancies.—[continued].
The phrase in the Constitution
is, “to fill up all vacancies that May
happen during the recess of the Senate”.
This may mean “vacancies that may happen
to be”, or “may happen to fall”; it is, certainly,
susceptible of both constructions, and
we took the practice of our predecessors as
the commentary established. This was done
without deliberation; and we have not before
taken an exact view of the precedents. They
more than cover our cases, but I think some
of them are not justifiable. We propose to
take the subject into consideration, and to fix
on such a rule of conduct, within the words
of the Constitution, as may save the government
from serious injury, and yet restrain
the Executive within limits which might admit
mischief. You will observe the cases of
Reade and Putnam, where the persons nominated
declining to accept, the vacancy remained
unfilled, and had happened before
the recess. It will be said these vacancies
did not remain unfilled by the intention of
the Executive, who had, by nomination, endeavored
to fill them. So in our cases,
they were not unfilled by the intention of
the successor, but by the omission of the
predecessor. Charles Lee informed me that
wherever an office became vacant so short
a time before Congress rose, as not to
give an opportunity of enquiring for a proper
character, they let it lie always till recess.
* * * We must establish a correct and well
digested rule of practice, to bind up our successors
as well as ourselves. If we find that
any of our cases go beyond the limits of such
a rule, we must consider what will be the
best way of preventing their being considered
authoritative examples.—
To Wilson C. Nicholas.
Ford ed., viii, 131.
(W.
Jan. 1802)
