Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/419

 CH. XXXVII.] § 1552. The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment. So that, if a bond for fidelity in office has been given under the first appointment and commission, it does not apply to any acts done under the new appointment and commission.

§ 1553. The language of the clause is, that the president shall have power to fill up vacancies, that may happen during the recess of the senate. In 1813, President Madison appointed and commissioned ministers to negotiate the treaty of peace of Ghent during the recess of the senate; and a question was made, whether he had a constitutional authority so to do, there being no vacancy of any existing office; but this being the creation of a new office. The senate, at their next session, are said to have entered a protest against such an exercise of power by the executive. On a subsequent occasion, (April 20, 1822,) the senate seem distinctly to have held, that the president could not create the office of minister, and make appointments to such an office during the recess, without the consent of the senate. By "vacancies" they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word "happen" had relation to some casualty, not provided for by law. If the senate are in session, when offices are created by law, which have not as yet been filled, and