Page:Federal Reporter, 1st Series, Volume 3.djvu/122

 IN RE FARROW. ���115 ���It Î8 not neeessary to quote from the opinions upon this question of the other distinguished jurists who have filled the office of attorney general. I simply refer to them. They are the opinions of Mr. Hugh S. Legare, dated October 22, 1841, (3 Op. 673;) of Mr. John Y. Mason, dated August 10, 1846, (4 Op. 523;) of Mr. Caleb Cushing, dated May 25, 1855, (7 Op. 186;) of Mr. Edward Bates, dated October 15, 1862, (10 Op. 356;) of Mr. James Speed, dated March 25, 1865, (11 Op. 179;) of Mr. Henry Stanberry, dated August 30, 1866, (12 Op. 32;) and of Mr. William M. Evarts, dated August 17, 1868, (12 Op. 449.) I also refer to the well-considered and conclusive opinion of the present attorney general, Mr. Devens. These opinions exhaust ail that can be said on the subject. They were rendered upon the call of the executive depart- ment, and under the obligation of the oath of office, and are entitled to the highest consideration. In his opinion Mr. Bates says the power to fill vacancies whioh occur during the recess bas been sanctioned, so far as he knows and believes, by the unbroken acquiescence of the senate. It is true/indi- vidual members of the senate have disputed the power, but not the senate itself. CongresB bas recognized the power by section 2 of the act of February 9, 1863, (Rev. St. § 1761,) which declares: "No money shall be paid from the treasury as salary to any person appointed, during the recess of the senate, to fill a vacancy in any existing office, if the vacancy existed while the senate was in session, and was by law re- quired to be filled by and with the advice and consent of the senate, until such appointee bas been confirmed by the senate," The only authority relied on to support the other view is the case decided by the late Judge Cadwallader, the learned and able United States district judge for the eastem district of Pennsylvania. It is no disparagement to Judge Cadwal- lader to say that his opinion, unsupported by any other, ought not to be held to outweigh the authority of the great number which are cited in support of the opposite view, and of the practice of the executive department for nearly 60 years, the acquiescence of the senate therein, and the recognition of the power claimed by both houses of congress. I therefore shall ����