Miller writes, on a point of Constitutional law in Pennsylvania, citing Marbury v Madison in support of his argument:

 

      My dear Sir,

 

           Your favor of the 10^th Inst was duly recd. You state that you were commissioned in vacation on the 1^st July 1839 and that your commission ran according to the constitution to the end of the next session of the Senate that your 2d commission is dated the 20^th March 1840, but that in the body of it, it says to have and to hold &c for the term of ten years from the 22^nd January 1840. This last date is most probably the day on which the Senate advised and consented to your appointment. You state also that you have learned that the Constitution had received a construction in regard to the Commencement of the term during Gov. Shunk’s administration whether Judicial or not you are not informed and wish me to give you the information. I am not aware of any Judicial decision in regard to the point in question. Shortly after the Commencement of Gov. Shunk’s admin. My attention was drawn to the subject. I found that during Gov. Porter’s administration that a practice had obtained of making the commissions relate back to the time the vacancy occurred or to the day on which the Senate advised and consented to the appointment. I thought the practice wrong and called the attention of the Gov to it. I took the ground that the nomination of the Gov and the action of the Senate in advising and consenting to the appointment was only advisory and preparatory to the issuing of the Commission and that there was no right of office invested or authority conferred until the commission was issued, and that it was in the power of the Gov in case he changed his mind for any cause to withhold the commission and to ask the advice and consent of the Senate to the appointment of another person and consequently that if he did issue the commission it must be for the full term of office, that it was not in his power to abbreviate the constitutional term of office by making the term commence at a date anterior to the day of issuing the commission when no right of office existed, and that any language in the commission not authorized by the Constitution would be regarded as surplusage. In support of this view of the case I cited Marbury V Madison on examination of this case with care, you will find that the court held hat up to the time the President signed the commission he might deliberate and exercise his discretion but that after he signed it the act was consummated and the time for deliberation past. The opinion then according to my understanding of it sustains my position that the nomination and advice of the Senate are only preparatory to granting the commission and that no right of office is conferred until the commission issues, and consequently that the term of office will then commence. After a good deal of discussion and deliberation the practice was made to conform to my views. If any commissions were issued differently by Gov. Shunk it must have been at the commencement of his Admin. & before the question was raised. The commission granted during vacation was, limited to the end of the next Session but did not necessarily to extend to that period in as much as it was liable to be superseded by a new appointment made by and with the advice and consent of the Senate before that time. This opinion is in accordance with the long and uniform practice under the Constitution of the United States. Your case I take to be thus your commission issued during vacation was good until you received your new commission and all your official acts up to that time were in virtue of your first commission as you certainly had no right to act under the Second before it was issued, and as I hold that the Gov had no right to commission by and with the advise and consent of the Senate for a less term than that required by the Constitution I regard your second commission as good for ten years from the 20 March 1840 the day it bears date. I entertain this opinion with great confidence and hope you will not surrender your office sooner without testing the question Judicially. Hod Gov. Shunk lived I know he would have regarded you commission as in full force until the 20 March … J. Miller …

 

NB I should be pleased to hear from you I regard the question as one of importance as involving the true construction of the Constitution. …”