Page:Federal Reporter, 1st Series, Volume 3.djvu/121

 114 FJSDEKAIi BEPOBTEB. �that may happen during the reoess of the senate," when prop- erly construed, means "vacancies which may happen to exist during the recess of the senate." In support of this latter view the praotice of the executive departaient of the govern- ment for nearly 60 years is invoked, and the concurring opin- ions of 10 of the distinguished jurists who have fiUed the office of attorney general of the United States are cited. �The first opinion given upon this point ia that of Mr. Will- iam Wirt, attorney general under President Monroe, (1 Op. 631,) in which he argues for the construction claimed in sup- port of the preaident's action in this case. He says: "In reason, it seems to me perfectly immaterial -when the vacanoy first arose, for, whether it arose during the session of the senate or during their recess, it equally requires to be filled. The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the president is called on to act. Is the senate in session? Then he must make a nomination to that body. Is it in recess ? Then the president must fill the vacancy by a temporary commission. This seems to me the only construc- tion of the constitution which is compatible with its spirit, reason, and purpose, while at the same time it offeirs no vio- lence to its language, and these are, I think, the governing points to which ail sound construction looks." �This opinion of Attorney General Wirt was concurred in by Mr. Eoger B. Taney, attorney general under President Jackson. See his opinion dated July 19, 1832, (2 Op. 525.) Mr. Taney says, in construing that clause of the constitution under consideration : "It was intended to provide for those vacancies which might arise from accident, and the contin- gencies to which human afEairs 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 recess, found to be vacant, then a vacancy bas happened during the recess and the president may fill it. This appears to be the common sense and the natural import of the words used. They mean the same thing as if the constitution had said 'if there hap- pen to be any vacancies during the recess.' " ����