1879. CONGRESSIONAL RECORD-SENATE. 271
Mr. HAYES. I will hear it. Also, papers relating to the claim of S. C. Moffett-to the Commit Mr. KEIFER. I think there will be no objection to it. ·1 send it tee of Claims, when appointed. to the Clerk's desk. By Mr. WILSON: The petition of M. Reilly ~nd others, of West Virginia, for the repeal of section 7 of the revenue law relating to STATIONERY FOR MEMBERS, ETC. wine and distilled and fermented liquors-to the Committee of Ways. The Clerk read as follows: and Means, when appointed. Resolved, That the Clerk of this House issue to membets and officers of the By Mr. WRIGHT: The petition of Mary Byrd Dallas, that her pen House such necessary stationery as may be required; and he shall have authority sion be increased to itR original amount-to the Committee on Invalid to use any unoxpend,ed moneys belonging to the stationery fund to supply neces Pensions, when appointed. sary articles which are not now on hand; that issued to members to be charged against them and accounted for when appropriation is hereafter made. Mr. SPARKS. I object. LEA VE OF ABSENCE. By unanimous consent, leaive of absence was granted, as follows: IN SENATE. To Mr. BUTIERWORTH, until Wednesday next; MONDAY, April 1, To Mr. DICK, indefinitely, on account of sickness; 1879. To Mr. WELLS, for one week ; Prayer by the Chaplain, Rev. J. J. BULLOCK, D. D. To Mr. O'CONNOR, until the 14th instant; The Journal of the proceedings of Thursday last wa-s read and ap To Mr. CANNON, of Utah, for five days ; and proved. To Mr. HUBBELL, for ten days, on account of sickness. · ARMY APPROPRIATION BILL. Mr. HAYES. I now renew the motion that the House adjourn. A message from the House of Representatives, by Mr. GEORGE M The motion was agreed to; and accordingly (at four o'clock and ADAMS, its Clerk, announced that the House had passed a bill (H. R: twenty minutes p. m.) the House adjourned until Tuesday next. No. 1) makin~ appropriations for the support of the Army for the .fiscal year ending June 30, 1880, and for other purposes, in which' the PETITIONS, ETC. concurrence of the Senate was asked. Mr. DAVIS, of West Virginia. I ask that the bill be referred to The following petitions, &c., were presented at the Clerk's desk, the Committee on Appropriations. under the rule, and referred as stated : The VICE-PRESIDENT. The Chair will lay the bill before the· By the SPEAKER : The petition of citizens of Ohio, for the pas Senate. sage of th~ Reagan interstate-commerce bill-to the Committee on The bill was read twice by its title, and referred to the Committee Commerce, when appointed. on Appropriations. . By Mr. ATKINS: The petition of R. K. Baird, fir an increase of EXECUTIVE COMMuNICATIONS. pension-to the Committee on Invalid Pensions, when appointed. The VICE-PRESIDENT laid before the Senate a communication By Mr. BRIGHT: Papers relating to the war claims of J. W. Bur from the Secretary of the Treasury, transmitting, in compliance withi bridge & Co., and Robert H. Montgomery, W. R. Butler, Ruth A. a resolution of the Senate of the 31st of March, 1879, information in Fleming, Mrs. Ann P. James, Fanny Priscilla Murfree,Martha A. Ste relation to the manner in which cars and bonded warehouses con- · vens, Robertson Topp, and Wm. L Vance-to the Committee on War taining appraised and unappraised goods are secured to pre ent frauds Claims, when appt•inted. on the revenue; which was referred to the Committee on Finance, and,. By Mr. COX: The petition of A. L. Rawson and others, relating on motion of Mr. EDMUNDS, ordered to be printed. to the amendment of the postal laws regarding the transmission of He also laid before the Senate a fotter from the Secratary of War, obscene literature-to the Committee on the Post-Office and Posit transmitting a report of the acting Chief of Engineers upon a provis Roads, when appointed. ion in the sundry civil bill approved March 3, 1879, discontinuing the By Mr. DIBRELL: Papers relating to the war claims of Joseph geographical surveys west of the one hundredth meridian under the Anderson, and St. Peter's and St. Paul's church, Chattanooga, Ten War Department after June 30, 1879, as well as other surveys under· nessee-to the Committee on War Claims, when appointed. the direction of the Interior Department; which was referred to the Also, papers relating to the claims of William G. Ford, Thomas Committee on Appropriations, and ordered to be printed. Cottman, Albert Grant, :m.d Sarah Wilson-to the Committee of Claims, when appointed. PETITIONS AND MEMORIALS. Also, a paper relating to the pension claim of Margaret A. Webb Mr. COCKRELL presented concurrent resolutions of the Legisla to the Committee on Invalid Pensions, when appointed. ture of Missouri, in reference to the copyright of the decisions of the Also, papers relating to the claim of William West-to the Com Supreme Court of the United States, and in favor of such legislation mittee on Military Affairs, when appointed. aB will vest the same in the Secretary of State; which were referred By Mr. FORSYTHE. The petition of Elizabeth J. Colbert, for a to the Committee on the Judiciary. pension-to the Committee on Invalid Pensions, when appointed. t Mr. DAVIS, of West Virginia, presented the petition of David H. By Mr. HASKELL: The petition of Saint Louis hat finishers, rela Myers, late private Company A, Second Regiment New Jersey Cav tive to the duty on hatters' silk plush-to the Committee of Ways alry, praying to be allowed a pension ; which was referred to the and Means, when appointed. Commit tee on Pensions. Also, the petition of the citizens of KanSJ,s, for the pa-ssage of a Mr. HILL, of Georgia, presented the petition of Robert Erwin, a. law providing for opening the Indian Territory to settlement-to the citizen of Savannah, Georgia, praying compensation for property Committee on Indian A..ffuirs, when appointed. taken from him by the military authorities of the United States dur By Mr. HENKLE: Papers relating to the war claim of J. H. Mad ing the late war; which was referred to the Committee on the Judi dox-to the Committee on War Claims, when appointed. ciary, and ordered to be printed. By Mr. HOUSE : Papers relating to the war claim of Mount Olivet l'Yir. CONKLING. I present a petition accompanied by various. Cemetery Company, Nashville, Tennessee-to the same committee, papers, one of which is a bill which passed the Senate at the last ses when appointed. sion, for the relief of Ann M. Paulding, widow of Hiram Paulding,. By Mr. KLOTZ: Papers relating to the claim of Charles Edwards late senior rear-admiral of the United States Navy. I move its·ref for additional compensation as an officer in the United States Army erence to the Committee on Pensions. to the Committee on Military Affairs; when appointed. The motion was agreed to. By Mr. MANNING: The petition of Gray W. Smith, for compensa Mr. CONKLING. I present also the petition of John Beeson, who· tion :for property taken by the United States Army-to the Commit seems to be a citizen of Oregon, who speaks in his petition of serv tee on War Claims, when appointed. ices which he has rendered the Government, and for which he asks. By Mr. McGOWAN : The petition of G. A. Cameron nnd 18 others, compensation. I move the reference of the petition to the Commit-. of Calhoun County, Michigan, for the passage of the Reagan inter tee on Claims. state-commerce bill-to the Committee on Commerce, when appointed. The motion was agreed to. • Also, the petition of G. A. Cameron and 11 others, of Calhoun Mr. THURMAN presented a memorial of Miller Brothers and oth-· County, Michigan, for the reduction of the tax on tobacco-to the ers, manufacturers of cigars in Dayton, Ohio, remonstrating against: Committee on Agriculture, when appointed. the passage of any act by Congress making a change in the present By Mr. MORSE: Papers relating to the petition of Robert P. Wil method of stamping cigars by attaching a so-called coupon stamp ;. son for appointment as a captain in the United States Army-to the which was referred to the Committee on Finance. Committee on Military Affairs, when appointed. He also presented the petition of Solomon S. Robinson, late cap By Mr. STEPHENS: Papers relating to the war claim of Matilda tain and brevet major, Sixteenth United States Infantry, praying to. Shields-to the Committee on War Claims, when appointed. be allowed a pension; which was referred to the Committee on Pen By Mr. WADDILL: Petition of Saint Clair Grange, Saint Clair sions. County, Missouri, for the p3SSage of the Reagan interstate-commerce · Mr. INGALLS presented the petition of H. A. McCarthy, of Saint bill-to the Committee on Commerce, when appointed. Mary's, Kansas, praying compensation for services rendered the Gov By Mr. WHITTHORNE : Papers relating to the war claim of the ernment as scout during the late war; which was referred to the heirs of Matthew Allison-to the Committee on War Claims, when Committee on Military Affairs. appointed. · . He also presented the petition of C. C. Phillips, of Iowa, praying;
• ,.. 272 CONGRESSIO AL RECORD-SENATE. APRIL .' for additional compensation for services rendered the Government obtained, leave to introduce a bill (S. No. 338) granting a pensiOn to during the late war as assistant surgeon of the United States Army ; Nelson Roosevelt; which was read twice by its title, and, with the which was referred to the Committee on Military .Affairs. papers on file relating to the case, referred to the Committee on Pen He also presented the petition of W. S. Handley: late a private in sions. Company H, First Iowa Cavalry, praying for a pension; which was Mr. BOOTH asked, and by unanimous consent obtained, leave to referred to tbe Committee on Pensions. introduce a bill (S. No. 359) to repeal the Atlantic and Pacific Rail Mr. MAXEY presented the petition of William N. R. Beale, of Mis road grant; which was read twice by its title, and referred to the souri, praying for the removal of his political disabilities; which was Committee on the Judiciary. referred to the Committee on the Judiciary. Mr. INGALLS asked, and by unanimous consent obtained, leave to Mr. LOGAN. I present the memorial of William B. Walker and introduce a bill (S. No. 360) repealing the charter of the National upward of 200 others, members of the Board of Trade of Chicago, Capitol Insurance Company; which was read twice by its titlo, and Illinois, in favor of the passage of a law authorizing all railroad com referred to the Committee on the District of Columbia. panies to construct and maintain telegraph lines for the use of the Mr. PENDLETON asked, and by unanimous consent obtained, leave public as well as themselves, on the ground, as they allege, that the to introduce a bill (S. No. 361) to restore W. M. Beede,jr., to his former -expense connected with telegraphing under thA present system is so rank in the Army; which was read twice by its title, and referred to great as to be a serious burden to the business and commerce of the the Committee on Military Affairs. country. I understand that the proposition to which this memorial Mr. COCKRELL asked, and by unanimous consent obtained, leave refers is ;i.lready in an appropriation bill, and I move its reference to to introduce a bill (S. No. 362) granting a pension to .Martha .A.. Will the Committee on .Appropriations. iamson; which was reacl twice by its title, and, with the accom The motion was agreed to. panying papers, referred to the Committee on Pensions. Mr. WHYTE presented the petition of .A.bsalom Kirby, passed assist .Mr. COCKRELL. I desire to introduce a bill without previous ant engineer United States Navy, praying to be allowed the pay of notice, granting an· increase of pension to James C. McCarty, of Jack his present grade in the Navy from the 11th of October, 1866, to the son County, Missouri, and to accompany the bill with a petition nu time be was restored to the active list; which was referred to the merously signed by leading, influential citizens of that county, asking Committee on Naval Affairs. for this increase, as Mr. McCarty was a soldier in the war of 1812, is He also presented the petition of Mrs. Com .A.. Slocomb and others, now eighty-four years old, served four distinct terms, and was ~n cjtizens of Louisiana, praying for a return of moneys alleged to have orably discharged each time. · been illegally taken from them by the United States authorities; By unanimous consent, leave was granted to introduce a bill (S. No. .which was referred to the Committee on Claims. 363) granting an increase of pension to James C. McCarty; which BENJAMIN P. RUNKLE. was read twice by its title, and, with the accompanying papers, re ferred to the Committee on Pensions. Mr. McDONALD. On the 10th day of January, 1878, the Senate Mr. COCKRELL also asked, and by unanimous consent obtained, referred to the Committee on the Judiciary a resolution relating to leave to introdu~ a bill (S. No. 364) for the relief of Samuel .A.. Lowe; the restoration of Benjamin P. Runkle to the Army. On the 3d of which was read twice by its title, and referred to the Committee on March, 1879, a majority report was made from the Judiciary Commit Claims. tee by the Senator from Vermont, [Mr. EDJ.\1U1'.'DS.] The Senator from ~Ir. BURNSIDE asked, and by unanimous consent obtained, leave Ohio [Mr. THURMAN] and myself desire to submit the views of the to introduce a bill (S. No. 365) for the relief of Hardie Hogan Helper; minority to the Senate in dissenting from that report, which I now which was read twice by its title, and, with the papers on the file present, and move that the views of the minority be laid on the table relating to the case, referred to the Committee on Pensions .. and be printed. Mr. THURMAN asked, and by unanimous consent obtained, leave The motion was agreed to. to introduce a bill (S. No. 366) for the relief of David W. Stockstill; BILLS INTRODUCED. which was read twice by its title, and rnferred to the Committee on Mr. INGALLS. By request I ask leave to introduce a bill for the .Military .Affairs. relief of tbe Central Branch Union Pacific Railroad Company, and I Mr. ANTHONY asked, and by unanimous co:&.sent obtained, leave ask that it lie on the table; I shall move its reference hereafter. to introduce a joint resolution (S. R. No. 17) authorizing the printing By unanimous consent, leave was granted to introduce a bill (S. of a portrait o;f the late Joseph Henry to accompany the memorial No. 349) for the relief of the Central Branch Union Pacific Railroad volume heretofore ordered; which was read twice by its title, and Company; which was read twice by its title, and ordered to lie on referred to the Committee on Printing. the table. · AME:J\TDMENT TO A BILL. Mr. HILL, of Georgia, asked, and by unanimous consent obtained, Mr: PLUMB submitted an amendment intended to be proposed by leave to introduce a bill (S. No. :350) to amend the act entitled "An him to the bill (H. R. No. 1) making appropriations for the support of act for the relief of Robert Erwin;" which was read twice by its the Army for the fiscal year ending June 30, 1880, and for other pur title, and referred to the Committee on the Judiciary. poses; which was referred the Committee on .Appropriations, and Mr. PLUMB asked, and by unanimous consent obtained, leave to to introduce a bill(S. No. 351) to extend the time for filing claims fol ordered to be printed. horses and equipments lost by officers and enlisted men in the service ACCOUNTS OF JOHN I. DAVE:NPORT. of the United States; which was read twice by its title, and referred Mr. BAY.A.RD submitted the following resolution: to the Committee on Military Affairs. Resol"Ced, That the Secretary of the Treasury be, and he is hereby, directed to Mr. TELLER asked, and by unanimous consent obtained, leave to transmit to the Senate a statement of all sums of money which have, in 1870 and in introduce a bill (S. No. 352) for the relief of Frank D. Yates; which each year since, been paid out of the Treasury to John I. Davenport, either a.s chief supervisor of elections, clerk of the United States circuit court. United States was read twice by its title, and referred to the Committee on Indian court commis:iioner, or in any other official capacity, or for any service or disburse Affairs. ment whatever; distin~shing between payments as chief supervisor, clerk of the He also asked, and by unanimous consent obtained, leave to intro circuit court, or Unitea Stat.es commissioner, and for other services or disburse duce a bill (S. No. 35:3) to enable the State of Colorado to reclaim cer ment; and to transmit to the Senate transcripts of any and all bills, accounts, or claims on which such sums were paid to the said Davenport, and all official corre· tain waste lands; which was read twice by its title, and referred to spondence respecting such acconnts, claims, auditing, and payment. the Committee on Public Lands. Mr. CONKLING. That seems to be a good resolution as far as it 1tlr. WHYTE asked, and uy unanimous consent obtained, leave to goes, but I should like it to lie over so that it may be made a little introduce a bill (S. No. 354) for the relief of Jacob and Elizabeth more capacious, perhap!:!. Sen er; which was read i·wice by its title, and, with the papers on file Mr. BAY.A.RD. I ask that it be printed. relating to the case, referred to the Committee on Claims. The VICE-PRESIDENT. The resolution will lie over and be Mr. ALLISON. .A.t the request of a member of the House, Mr. printed. DEERIXG, of Iowa, I ask leave to introduce a bill for reference to the DISTRICT WATER SUPPLY. Committee on Pensions. By unanimous consent, leave was granted to introduce a bill (S. No. Mr. ROLLINS submitted the fo1lowing resolution; which was con 355) granting a pension to Mrs. Elizabeth lJpright; which was read sidered by unanimous consent, and agreed to: twice by its title, and referred to the Committee on Pensions. Resolved, That the commissioners of the District of Columbia be directed to fur nish to the Senate a schedule of the water rents now charged and collected in said Mr. ALLISON. .Accompanying the bill I present a letter from the District; what changes may be made therein in order that they may bear equita Secretary of War, under date of February 11, 1879, addressed to Mr. bly upon all classes of water takers; and what increase, if any, is requirecl in said DEERING, and I move that it be referred to the Committee on Pensions. rates to provide for the just and proper expenses of the wat.er department; to Tho motion was agreed to. ~ether with the a.mount now collected, and what amount will be realized from such mcreased rates. Also, what arrearages are due for water rents or water-mains, Mr. SLA'l'ER asked, and by unanimous consent obtained, leave to and what st.eps, if any, have been ta.ken for their collection. introduce a bill (S. No. . 356) to transfer the control and management of Indian affairs from the Interior to the War Department; which U:NION PACIFIC RAILROAD FREIGHT DISCRIMINATIO~S. was read twice by its title, and referred to the Committee on Indian Mr. COCKRELL submitted the following resolution; which was Affairs. considered by unanimous consent, and a.greed to : Mr. HILL, of Colorado, asked, and by unanimous consent obtained, Resolved, That the Secretary of War be direct.ad to furnish to the Senate any leave to introduce a bill (S. No. 357) to provide for coinage at the and all reports made to him by the Quartermast.er-General of the United States Army abollt the month of October in the year 1878, and prior and subdeqnent to branch mint at Denver, Colorado; whio.U was read twice by its title, that date, of any discrimination made by the Union Paci.fie Railroad Company in and referred to the Committee on Finance. favor of private shippers as against the United Stat.es, and all correspondence Mr. CAMERON, of Wisconsin, asked, and by unanimous consent relating thereto. • · •
1879. OONGRESSION AL RECORD-SE~ ATE. 273
LEGISLATION ON APPROPRIATION BILLS. If language is capable of expressing l'!Jl. idea with any sort. of pre The VICE-PRESIDENT. If there is no further business for the cision this means that two Senators should be chosen by the Legis morning hour, the Senate will proceed to t.he. consideration of its lature of each State, to hold office for the term of six years ; that one unfinished business. third part of the who1e number of Senators shouid be chosen every Mr. HEREFORD. At the last sitting of the Senate I gave notice second year, and if vacancies should occur (or happen) in the seats that to-day I should move to take from the table the resolution thus filled by the Legislature they should be supplied until the next offered by the Senator from Massachusetts, [Mr. HOAR,] for the pur meeting of the Legislature, which, as the constituent of the senatorial pose of submitting some re.marks up?n it, put inasm~ch as ~h~ ques body, should make a choice. tion involved in the unfinished busmess 1s one of high ·pnvilege, I The propositions thus reported were brought before the convention do not desire to antagonize that, but shall ask to take up the reso on the 9th of Augusii, 1787, for discussion, when lution to which I have referred and be heard upon it as soon as the Mr. Wrr..so~ objected to vacancies in the Senate bein~ supplied b.v the execu· tives of the States. It was unnecessary, a.a the Legis1ature will meet so fre. pending matter is disposed of. quent!!. SE...~ATOR FRO:U :NEW HA:\IPSHIRE. Mr. RAXOOLPH thought it necessary, in order to prevent inconvenient chasms in The VICE-PRESIDENT. The Senate will proceed with its un the Senate. finished business, being the resolution reported from the Committee * on Privileges and Elections, "that. Hon. Charles H. _Bell is not en Mr. WILLIAMSO~. Senators may resign or not accept. titled to a seat as a Senator by virtue of the apporntment by the I ask attention to this expression and to the action of the conven executive of New Hampshire;" and the pending question is upon the tion following immediately thereon : amendment offered by the Senator from Massachusetts [Mr. HOAR] Senators may resign or not accept. This provision is therefore absolutely nec to strike out from the resolution the word "not" before the word essary. "entitled." . l\Ir. BAILEY. Mr. President, the failure on the part of. the Legis The provision was retained, but immediately after on the page lature of New Hampshire to elect a successor to Mr. Wadleigh, whose following of the record of the debate- term of service expired on the 3d o.f March, 1879, was followed by an Mr. MADISON, in order to prevent doubts whether resignation could be made by Senators, or whether they could refuso to accept, moved to strike out the words executive appointment of Hon. Mr. Bell, who now claims a seat on after " >acancies," and insert the words "happening by refusals to accept, resig. the :floor of the Senate in virtue of that appointment. The ques nations, or otherwise, may be supplied by the Legislature of the State in the rep. tion presented.fa whether, under the third section of the first article resentation of which such vacancies shall happen, or by the executive thereof un of the Constitution of the United States, .Mr. Bell is entitled to a til the next meeting of the Legislature. seat on this :floor. The Constitution declares, in the section to which So that that clause of the Constitution shall read: I refer, that- Vacancies happening by refusals to accept, resignations, or otherwise, may be The Senate of the United States shall be composed of two Senators from each supplied- State, chosen by the Legislaf.ure thereof, for six years. How 'l + * * * * Immediately afte they shall be assembled in consequence of the first election, by the Legislature of the State in the representation of which such Tacancies shall happen, or by the executive thereof until the next meeting of the Legisla,. the> shall be· divided as equally as may be into three classes. The seats of the ture. · Senators of the first class shall be vacated at the expiration of the seoond year; of the second class, at the expiration of the fourth year, and of the third c1ass, at It is very clear that doubts were entertained whether under the the expiration of the sixth year, so that one.third may be chosen every second section as repealed by the (}Ommittee, the exercise of the power t-0 year; and if vacancies happen by resi~ation or otherwise, during the reces~ of the Legislature of any State, the executive thereof may miike temporary appomt. choose a Senator for six years did not exhaust the power of the Leg ments until the next meetin~ of the Legislature, which shall then fill such vacan· islature if the Senator should live through the terCQ.. He might re cies. fuse to accept the office; he might wish to reRign; he might be pro It seems to ha\e been manifestly the intention and purpose of the moted to anotheroffice; he might be expelled. Thedoubtwas whethe1· framers of the Constitution in adopting this section of the first ar in either of these events a successor could be elected by the Legislat ticle not only to confer upon the Legislature of a State the right, ure or appointed by the executive. Hence the words employed, bnt to make it a duty, upon the expiration of a Senator's term, to " vacancies happening byrefusals to accept, resignation, or otherwise, choose for him a successor, and further to provide that after one shall may be supplied by the Legislature of the State in which snch va be thus chosen, if by resignation, by the accident of death or· other cancy shall happen, or by the executive thereof until the next meet wise, there should be a vacancy in the term for which :i choice had thus inlY of the Legislature." been made, to confer upon the executi.9-e, if the vacancy occnred dur- - i have shown that original vacancies, that is, vacancies caused by ing a recess of the Legislature, the right to ma,ke _a. temporary ap the expiration of the term, could not have been filled by the exec pointment until the next meeting of the Legislature. But we may utive, according to the plain and manifest intent of this article, as derive some light, and be instructed somewhat by looking into the reported by the committee on detail. We see above that it was not history of this clause of the Constitution, and with that view I invite the intention of the mover of this amendment nor of the convention for a moment the attention of Senators to the Madison Papers, to the in adopting the amendment to confer this power, but to provide for debates that occurred in tho convention, and the motions and resolu accidental, unexpected vacancies that could not be foreseen and tions which were a-dopted, whereby this clause became. a part and would or might ''happen," as by refusal to accept, by resignation, or parcel of the Constitution. · otherwise-that is, might occar by other accidental or fortuitous It will be remembered that in the convention propositions were circumstances. ·submitted in the form of resolutions by Mr. Randolph, of Virginia, The section as amended meant this and nothing more. and in the form of a constitution by Mr. Charles Pinckney, of Son th The Legislature was authorized to elect for a term of six years. Carolina. After days had been spent in the discussion of the propo But vacancies might happen. How happen f By resignation, by sitions involved in the two plans which had thus been presented, it refusal to accept, or otherwise by accidental and unforeseen contip. will be remembered that certain agreements were made, certain reso gencies or events. lutions were adopted, certain conclusions were reached, and a com In such case the Legislature, if sitting, should fill the remaindero:C mittee of detail, as it was called, was appointed in order to throw the term; or, if it was not in session, the executive should appoint into shape the resolutions and conclusions of the convention. That until the next meeting of the Legislature. committee made a report to the convention, and I ask leave to read The language employed by Gouverneur Morris, who seconded the this article of the constitution as it was reported by that committee. amendment offered by Mr. Madison, strengthens the conclusion I have 'l"'he clause as reported by the committee reads as follows : reached. He said : AltTICLE V. This is absolutely neoessary; otherwise, as members chosen into the Senate are SECTIOX 1. The Senate of the United State shall be chosen by the Leg-islatures disqualified from being appointed to any office by section 9 of this article, it will of the several States. Each Legislature shall choose two members. Vacancies be in the power of the Legislature- JJlay be supplied by the executive until the next meeting of the Legislature. Each N ot by refmtlng to appoint, for it was assumed that that duty would member sl:tall have one vote. SEC. 2. The Senators shall be chosen for six years ; but immediately after the be discharged- first. electio.n t.hey shall be divided into three classes, as nearly as may l:e, imm· it will be in the power of a Legislature, by appointing a man against his consent- bared 1, 2, and 3. The seats of members of the first class shall be ;acated at the will expiration of the second year ; of the second class, at the expiration of the fourth One who not accept, or one who may choose to resign- year; of the third class, at the expiration of the siith year; so that a third part to deprive the United Sta.tos of his serdces..- of the mwnbers may be chosen every second year. Unless the amendment shall be adopted. Now, let us go back for one moment and consider what was re Now, Mr. President, the clause thus amended on the motion of Mr. ported in this article. We find, Madison went to another committee. It was not thereafter discussed First. That the Senate of the United States should consist of two or debated. This was regarded as settling the purpose and intent of Senators from each State. the framers of the Constitution in regard to vacancies in the office Second. That these Senators should be chosen by the Legislatures of a Senator. A committee was appointed in September, 1787, to re of the different States. vise the style and arrangement of the articles which had been agreed Third. That immediately after the first election they should be on by the convention. What articles T The articles agreed npon, and divided in~ three classes, so that a third part of the members would among others the one which we have just now been discussin(J', and be chosen every second year. whicb expressed the sense of the convention and the intent an:l pur Fourth. That va-cancies should be (or may be.}...stlpp1ied by the ex pose of the convention in regard to the question of vacancies. ecutive until the next meeting of the Legislature. That committee, mark yon, was ·not charged With the duty, nor was JX-18
• \ • 274 CONGRESSIONAL RECORD-SENATE. .APRIL 7,
it authorized to change in the slightest respect the sense of the arti It came up again the next day and it again was the subject of some cles which had been referreci to it. It w~ a committee simply upon discussion. It went over, I believe, until a future tention of the Senator from Vermont for a moment to some things Elections to-day was the proper and correct construction. I say, then. that were said on that occasion not only by Mt. Phelps, but also by that so far as this question has a history, there can be no doubt his colleague, Mr. Foot. The question was debated by Mr. Butler of upon it. South Carolina, Mr. Badger of North Carolina, Mr. Geyer of Missouri, Beforo I depart from this poini, however, let me re.fer to the fact .Mr. Bayard of Delaware, Mr. Foot and Mr. Phelps of Vermont, by Mr. that a friencl has banded me l\1r. Benton's Thirty Years in the United Toucey of Connecticut, and by one or two other Senators. I have States Senate, in which he thus treats Lanman's case: taken the pains to examine the debates of that day, and I say here lli. Lanman had served a regular term as Senator from Connecticu r. His term that every Senator without exception who spoke upon this point at of service expired on tbe 3d of March of this year, and the General Assembly of all, or made any allusion or reference to it at all, not only recognized the State haying faile.t to make an election of Senator in his place, llo l·eceivcrl a temporary appointment from the goyern01·. On presenting himself to take tl,ie oath the authority of tho Lanman case, but expressed the· opinion that the of office, on the 4th day of ~[arch , being the tirst day of the spacial senatorial ses decision in that case was correct. Mr. Phelps him elf, the claimant sion con-Yokecl by the retiring President (~fr. l!onroe) according to usage for the of the seat, made this distinct a-Omission. inauguration of his succe sor, his appointment was objected to as not harlng been Mr. C4-~1ERON, of Wisconsin. If the Sena.tor will allow me, tbe made in a ca e in which :i.governor of a 8tato could fill a vacancy by making a. tern· porru:y appointment. Mr. Tazewell wa;i the i1rincipal speaker against the validity miu~rity of the committee do not question the c0rrectness of the de of the appointment, arguing all:ainl'.t it l>oth on the words of the Constitution and cision in the Lanman case, but wo say that the decision in the Lan the reason for Lhe provision. Tho words of the Constitution are : "If vacancie hap man case is not what it was statetl to be by Mr. Grundy in his report pen (in the St!nate) byresi~ation orotherwi. c, rluring the recess of the Legislature of any State, the executi 'l""e thereof may make tern porary appointments, until the next on the Sevier case. meeting of the Legislature." ''Happen" was bold by Mr. Tazewell to be the aovern Mr. BAILEY. I will show you, Mr. President, alltl I will show the ing word in thi. pro>ision, and it always implied a contino-enoy, and an une~ected Senate that the gentlemen who discussed this question in 18'.>4, Mr. one. Phelps the claimant, his colleague l\.Ir. Foot, Mr. Badger, .Mr. Butler And in th is bis argument is ingnlarly in accord with the remarks the chairman of the Judiciary Committee at that date, other Sena of Mr. Madison when be offered the amendment to the resolution that tors known to fame and t o the whole counti·y, discussed that question,. had been originally adopteclin the conYention to frame the Conr;titu and without exception they recognized the ruling in Lanrilan's case tion: to have been a ruling upon the very question that is now preseRted Itconldnotapplyto a fore een event, bound to occur at a fixetlperiod. Hero the to the Senate, and not-one of them stated, and I make the affirma vacancy was foreseen ; there was no contingency in it. It was regular and certain. tion that it has never been stated upon the fioor of the Senate from It was the right of the Legislature to fill it, and if they failed, no matter from ,Yb at • the year 1825 down to this day that the ruling in Lanman's case was cause, there was no right in the go-..ernor to supply their omission . other than I have stated, and it remaineu for the minority of the .A. committee was appointed on motion of Mr. Eaton to look for Committee on Privileges and Elections now to undertake to make a precedents, &c. Tbey reported the cases of 'William Cooke, of Ten distinction between Lanman's ca-se and this and to hold that the de nessee, and others, to which rnference has been ma 1879. CONGRESSIONAL RECORD-· SENATE. 277 I will read, though they wou]d all be interesting. He introduced qualifying words are sti:onger in the .senatorial c1a?se than in the these resolutions on the 29th of July, 1813: executive clause m relation to vacancies. As my friend from Ten The President of the United States having by the Constitution power?> fill up nessee suggests, it occ?r~ed s~veral times in that w_ay. It oc~~ed all vacancies that may happen during the rec;:e s of the .Senate by grantmg com- on appointments to miss10ns rn several cases, and m appropriatmg missions whinh shall expire at the encl of their next sess10n: . money power was given to the Presiden~ to fill vacan~ies b3'." express Resolved, That, in 1.he opinion of the Senate, no such vacancy can happen m any office not before full. authority of law after the Senate had aclJourned, aud.dIBcui>sion arose in various cases in that way. · A.ncl he followed it up with very e]aborate resolutions condemning By these two O'reat occasions to which I have alluded, in which the the net of Mr. Madison in appointing three commissioners to nego Senate struO'gled for nearly a yea,r with the question clnring Mr. Mad tfa,te a treaty of peace and commerce with Russia and Great Britain ison's admi~istration without deciding it, and on which was sub as unauthorized by the Constitution. These resolutions were deemed mitted an elaborate report i.n Mr. Monroe's administration when t~ey so important that the Senate in executive session ordered that they did decide it, the attention of Senators was brought to the question, should be discnssed in open session, and some very elaborate speeches and therefore when Mr. Lanman presente~ his credentials .in 182U the were made, tho whole question being the power of t~e President to poi.nt was raised that that vacancy, like those alluded torn the pres fill an original v~cancy, and founded _up~n the ~eanrng of. the word idential clause, was a vacancy whieh did not happen, and therefore "happen" in tbe clause of the Const1tut10n which gave him power the governor of the State had no authority to fill it, and tho Senate, to fill up all vacancies that should happen during the recess of the following the precedent of 1822, de?i~ed that the gov~rn~r of a State Senate. That discussion continued for nearly one year, and very had no authority under that provision of the Const1tut10n to make elaborate speeches, as I say, were m.ade by various able Se~ators~ i.n an appointment at the beginning of a term; and from that day_ to which speeches a good deal of feelmg was shown. The d1scuss10n this that question has been considered as settled. I reaffirm with is very important and very i~struc~ive. Mr. Gore, t~e auth.or of tJ;ie emphasis what the Senator from Tennessee said, from that day to resolutions, concluded the discussion of the resolutions hunself rn this that question has been accepted as settled; govern?rs ave acted open session, making a very elaborate argument, on the 12th day of upon it in various instances; the statesmen of all p~rties l:iave acted April 1814. The resolutions were introduced in July, 1813, were trans upon it, and it has not been reopened, except by this. case, when the ferred to the open Calendar, and debated continually and frequent1y governor of New Hampshire has again reopened it by sending ~fr. nntil April, 1814, when they were disposed of_by making t~em the Bell here with a commission to take a seat in the Senate. special order for the next December, and they were never agam taken Mr. ROLLINS. Will the Senator yield to me fur a question f Was up. Therefore the resolutions introduced b;v l\fr.. Gore were neither not the Sevier case in 1837, following 18'25 ; and is it not the fact that adopted nor rejected; but that elaborate discus1'10n had upon the in that case the appointment was made for the beginning of a term T meanin()' of the word "happen'' is the first discussion I have been Let me ask further what evidence has the Senator found to show that able to ftnd in the history of this transaction. _ the decision i.n the Lanman case turned upon the point he has now The Senator from Tennessee has referred tctthe next important dis suggested 'I cussion that occurred, which was in 1822. Mr. HILL, of Georgia. I find this evidence : · It has been repe~t~d Mr. CAMERON, of Wisconsin. Before the Senator from Georgia to the Senate by the Senator from Tennessee ; it was the issue made passes from the consideration of the first discussion which he finds, on the case at the time. Nobody ever said otherwise except the will he allow me to call his attention to this point 1 If I up.derstand the National Intelligencer and a gentleman by th4:' name of Gordon, whose readin(J' of the reso]utions offered on the occasion to which he has digest was adopted by Judge Story. But it was repeated by Mr. alluded, it was that there was no vacancy because the office had not Grundy in his report i.n 1837, and it .was repeate~ in the debate of been filled. J s there not this disti.nction between that case and this: 1854, in the case oj Phelps. Now I wish to say thIB-- the office of Senator from the State of New Hampshire was filled prior Mr. ROLLINS. Mr. President-- to the 3d day of March last f Mr. HILL, of Georgia. Donot interrupt me,foritwill be unneces Mr. HILL. of Georgia. I will come to that. I am now giving the sary if you will listen to me. The Senator asks did not the question history of the question. The Senator from Wisconsin will please ex recur in 1837, i.n Mr. Sevier's case 'I I say it did not. It is true :Mr. cuse me for the present, I will come to that point presently. I am Sevier was admitted. Why 'I The committee and the Senate of ld37 showing how the discussion on this question oft.he power of the Presi recognized the pri.nciple of the Lanman case. They did not reopen it; dent and the power of the governors of the States to fill a vacancy they reaffirmed it distinctly, said it w.~ a correct decision. _A;nd under the word ''happen" occurred. what did they say was the correct decision 'I The correct decision Mr. BAYARD. I ask the Senator from Georgia whether the com was that the governor had no authority to appoint a Senator to fill missioners so nominated did not proceed to act and were not in con a vacancy at the beginning of a term, because that was not one that tinual service till they negotiated the treaty of Ghent' happened by casualty. I know a contrary impression is made Ly the Mi·. HILL, of Georgia. Two of them did serve; Mr. Gallatin was quotation from Story, but that is evidently wrong, as the whole record rejected. It is a historical fact that strong feeling was engendered shows; but the Senate admi~ted Mr. Sevi~r notwithst~nding, I tl~ink between the Senate and Mr. Madison by the introduction of the reso upon an insufficient reason. But why did they admit Mr. Sevier. lution~ of Mr. Goro. Mr. Gore stated he had no desire to interrupt Because they said the vacancy to which Mr. Sevier was appointed the mission or defeat the gent1emen appointed, but he desired to make occurred by lot, and therefore it might be sa.id that it happened; it the point of power with the President, to prevent its exercise as a could not have been foreseen. With all due deference to the great precedent, that the Senate _should contest it as a principle, and the men of that day I do not think it was a forcible distinction; but they discussion of Mr. Gore's resolution did not take place until after the admitted the pri.nciple of the Lanman case that the word " happen" a-entlemeu alluded to were confirmed and the mission was completed, could not be applied to a vacancy that could be foreseen. They s::i.i·d because Mr. Madison when the Senat.e met sent i.n the names by regu such a vacancy could not be said to happen; but they said the Sevier lar nomination. Two of them were confirmed and Mr. Gallatin was case was excepted from that, because his term was decided by lot, not at that time. and the result of a lottery could not be foreseen by the Legislature of The next discussion of any consequence that arose was in 1822; I Arkansas and therefore they admitted him. So far,, then, from that beHeve it was alluded to by the Senator from Tennessee. In that dis case being a repeal or overruling of the decision in Lanman's case, it cussion the Senate did come to a conclusion, lmt that discussion again was a reaffirmance of it. arose upon the power of the President to fill up a vacancy occurring The uentleman representing the governor of New Hampshire so in the recess of the Senate; Let me state the conclusion at which the ably on°this floor and the minority of the committee have put this • Senate then arrived. I aru not going into the :particulars but only case upon the ground of the decisions made previously to 1 25. All propose to give the points as they arose. The report of the commit lawyers know that. the decision in the Lanman case, which. was well tee was: considered and which was debated, overruled all those previous cases • In tbe second ection of the second article of tho Constitution of the United which were not considered, and they became as nothing, and the States it is provided, that" the President shall ha"°e power to fill up ull vacancies decision overruling them must stand as the law until it shall bo over that may happe:n during the recess of the Senate, by !!ranting commissions which wa.s shall expire at the end of their next session." l£ t'fie offices to which Colonels ruled. The case of Lanman has never beel!l. overruled. It re Towson and Gadsden are nominated were original vacancies created by the act of affirmed in 1837, was recognized and reaffirmed in 1854, and it has the 2d March, 1821 the committee contend that they wero not filled agreeable to been acted on, as the report of the committee shows, in a great num the provisions of the Constitution. The words " aii vacancies that may happen ber of cases by the governors of various States. cluring the recess of the Senate," evidently mean vacancies occurring from death, resignation, promotion, or removal; the word happe:n must have reference t.o some But, ~fr. President, I wish to say another thing._ This decisi?n that ca.•malty not protlded for by law. I refer to i.n 182-2 bas been adopted by the law writers as settlmg the meaning of the word" happen." I will re~d from. .Mr. Justice Story There is no contro>ersy about that. That is the report of an able upon this subject. He has been read from m relation to the Lanman committee. Let me read part of it again: case. I will read from him on this particular point. Section 1559 of The words " all vacancies that may happen not adopted. It cannot, therefore, be properly said that a protest one sense, but that is not the Constitution. The draught as reported by was entered by tbe Senate. the committee of detail was" vacancies in the Senate shall be sup On a snbse<] uent occasion, (April 20, 1822,) the Senate seem di tinctly t o have plied by the executive." It did not qualify, it did not restrain, it held that the ! >resid ent could not create t be office of minister, and make appoint said " vacancies," and if that language had been adopted you might m en ts to such an office • 1879. OONGRESSIOKAL RECORD-SENATE . . 279 therefore cannot be well provided for. Will any Senator say on this all that it is necessary for me to prove, I suggest to the honorable Sena floor that the term of Senat,or Wadleigh happened to expire 'f Did the tor from New York, vh the question of construction as to whether term now unfilled happen to begin on the 4th of March f Did we not the word "happen" was a qualifying word or not, is that while the all know, did not the go>ernor of New Hampshire know, did not the framers were willing to trust it in the other tw~ cases, (and there Legislature of .New Hampshire know, long ago, years ago, that the might have been reasons why they should trust it in the other two term of Senator "Tadleigh would certainly expire at a fixed time-a cases,) yet in this particular case, as there was the specific objection time fixed by law~ Did you not know that the new term would then in the convention to conferring this power upon the governors at all certainly begin, that the law had fixed that it should then begin, and upon any terms, there was a reason why in conferring it they should will you say that-that which was fixed inevitably to come, which was be tqe more particular in fixing the qualification. 'l'hat is all I can certain to come, happened to come f Will anybody say that? Will · say on that point. any lawyer use terms in that way f Now, Mr. President, what is the meaning of the words "by resig Mr. CONKLING. Will the Senator allow me one moment f nation or otherwiset" I say to the Senator from New York if the Mr. HILL; of Georgia. Yes, sir. · interpretation given to the clause of the Constitution which author Mr. CONKLING. The Senator says there is a difference between izes tho President to fill vacancies that was adopted in 1822, and a vacancy and a vacancy which happens. I agree with him about which Mr. Story and Mr. Sergeant both tell us has been the accepted that, and would not trouble him to amplify his remarks; _but Le says rule since, was correct, I grant that the same thing would follow in again there is a difference between a vacancy which happens and one this clause in relation to filling vacancies in the Senate without the which happAns from resignation or otherwise. ~Vill the Senator be words "by resignation or otherwise." But even if it be true that kind enough to point me to the difference between a vacancy which the interpretation given to the word "happen" in the other two ba.ppens1 ~nd a acancy which happens from resignation or other clauses be incorrect, still that is no reason for holding that the quali wise f fication does not exist in this senatorial clause,·because in addition to Mr. HILL, of Georgia. The Senator from New York has misun- the word "happen" the kind of happening is specified, that is, it derstood me. I have not said that. . · must be 11 by resignation, or otherwise." So unquestionably, whether · Mr: CONKLING. I so understood the honorable Senator. the qualification exists in the other two clauses derived from the word Mr. HILL, of Georgia. I said that a vacancy would happen- "happen" or not, it certainly does exist in this clause. That is the Mr. CONKLING. I understood the honorable Senator from Georgia point I make, and that is all. The qualification certainly does exist to say, first, that there were qualifying words in the Constitution as in this clause, because in addition to the word "happen" it says that to vacancies; that one of those qualifying words was the word "hap the vacancy must happen "by resignation, or otherwise." What do pen;" and that a vacancy which happened need not nec08sarily be a those words meant They were not inserted idly. The framers of vacancy which only existed. I understood him to $0 further and the C<:mstitution were not in the habit of inserting idle words in the say, that following the word "happen" were still additional qualify Constitution. Gentlemen construe the word "otherwise" strangely. in~_words, to wit, "by resignation or otherwise." · They say that the word "otherwise" means any vacancy, that is, .Mr. HILL, of Georgia. That is right. they say that the framers of the ConstituLion put in a qualification Mr. CONKLING. The Senator admits that I am right so far, while by the word "happen 'J and by the words "by resignation,'' and then think I am right in the foundation of my curiosity and of my ques- destroyed those qualifications by putting in the additional words "or tion, which I shall state again. I want to know what is +,he distinc otherwise." In other words, you use the word "otherwise" so as t<> tion between a vacancy which happens only, and a vacancy which leave the power without any qualification, as though it read, "If happens from resignation or otherwise 7 There certainly must be a vacancies should happen to occur during the recess of the Legislature difference, provided the Senator is right in saying that he finds qual the governor may fill them by temporary appointment." That is ifying or restraining words in the language "by resignation or other your meaning. wise." If those words qualify, then they do certainly distiniuish I submit to Senators that the very position itself is absurd, for there between a va-cancy whic:.h only happens and a vacancy which happens are well settled rules of law for the construction of this sentence. by resignation or otherwise. You cannot take a sentence that way and use one word to destroy Mr. HILL, of Georgia. The Senator is wholly mistaken in the in the meaning of other-words. You cannot take a general phrase ference which he drew from my position, although he states my posi and use it to destroy the meaning of a specific phrase. On the con tion correctly in the last remark. Iu my opinion, the words " by res trary, you must restrain and qualify the general phrase by the mean ignation or otherwise" are additional words of qualification. That ing of the specific phrase. That is a well settled rule. Why f Be is an I have said. cause it is your duty in construing to givo effect to every word and Mr. CONKLING. Yes. · to give a meaning and a sense to every word. You are not at liberty Mr. HILL, of Georgia. But they are words of qualification which to say that the framers of the Constitution not only used idl.e words <>nly make more certain the character of vacancies fixed by the word but used words of significance if standing by themselves, and then "happen." destroyed the significance of those words by using a general term Mr. CONKLING. Then, if my honorable frieml will pardon me afterward. I wish to read some authority on that question. I will once more," they only make more certain." Now I quote him exactly. read some very strong remarks made on that subject in the speech They only make moro certain. If they do, <'-ertainly it is by some of Senator Gore in 1814, to which I allutlecl. Speaking upon that substantive meaning, by the fact that they import into this clause subject he said: · of the Constitution some visible, tangible, or ascertainable thing The first resolution declares the opinion of the Senate, that no such vacancy can which without them would not be there. I ask the honorable Sen happen in any office not before full. One of the geutlemell calls on me for author ator what is that thing which they only make mor-e certain T Point ity to show that the office must ha•e been before full. The answer is, that the plain sense and meaning of the terms will admit of no out to me the meaning, the substance, the thing which is made more other interpretation. certain. It is a sound principle of construction, that in every instrument you must give Mr. HILL, of Georgia. If the Senator will allow me, I am coming sense !'"d meanin~ to e>ery w;_ord if poss~ble. * • • to the point as to the meaning of the words "by resignation, or other If the construction contended for by gentlemen who oppose this resolution b6 wise." That is the very next point in my argument. It is not at all true, the words "that may haJ?pen," are useless; and surely if the Constitution in incumbent upon me to show why the words were put in, or rather to tended to convey the power like that exercised by the !'resident, in the present show a purpose different from that which actuated the framers in case, it might and would have said. "the President shall have power to fill up all putting in the word "happen." That is not at all necessary for me vacancies during the rooess of the Senate." This is precisely the construction con tended for, and thus it is in.sisted that tbp special power contains a general ~nt, to do; it is not at all important to my argument; bnt we are face to which renders the special nature of the delegation useless, at the same time that it face with the faot that.the framers of the Constitution had before renders null apd void the authority cont"ained in the general grant of the President them three occasions in which to pro\"ide for the filling of vacancies, and Senate, and authorizes the Presiclent to annihilate all the pririlegesof the Sen and on all those occasions they spoke of vacancies which should ate in respe.ct to the power of appointment. I may surely return the question, add happen. On two occasions they spoke only of vacancies which should a.sk the honorable gentleman whence he obtained authority for such a construction. happen. On the third occasion they not only spoke of vacancies which Again he says : should happen, but they defined the manner in which they should AU general phrases are defined and limited by the particular enumeration of happen, that they should happen "by resignation, or otherwise." powers which would otherwise have been embraced by the gei:eral phrases. '!'be best reason that I can give to the Senator, assuming that the In the twelfth volume of Georgia Reports I find this very strongly interpretation which our predecessors have placed on tho word "hap stated by Chief-Justice Lumpkin, who was for over twenty-five years pen " in the other two instances is correct, is the assumption that the chief-justice of our State, and who has a national reputation as a. the framers of the Constitution were determined to be more explicit jurist. On this very point he says: in the third case than in the other two cases. The fact that the I would take occasion to remark that the rule of construction applicable to all writings, constitutions, st.atutes, contracts, and charters, public or private, and meaning of "happen'' is defined in the clause relating to the Senate, even to ordinary conversation, is this: that general and unlimited terms are re and is not defined in the other clauses, bas been used by some who strained and limite accept, or a vacancy happening by any other cas~lty. Instead of has so ably and so clearly suggested-the difficulty of employing lan saying "vacancies which happen by resignation, death, 1·emoval, pro guage that would allow a governor to fill a term in the :first instance, motion," or anything else, the framers used the words "by resig to appoint at the beginning of an original term, and thus enable him nation or otherwise," intending the one word" resignation" to show to adopt means by which he could prevent the Legisfatm·e from elect you that the word "otherwise" was to be applicable only to cases ing, and thereby bring about a vacancy for himself to supply. The like that governed by "resignation;" that is, cases·of casualty which very difficulty of providing against these evils w'ls the reason why might happen. these limitations were put in the Constitution, and which result in Mr. CONKLING. Will the Senator allow me a moment f preventing him from filling such a vacancy at all. Mr. HILL, of Georgia. Yes, sir. I say to the distinguished Senator from New York that he ha.s ma.de Mr. CONKLING. I am listeningwithgreatpleasureandgreatsat th~ best argument I have heard yet in a fE:1w sentences. If you by isfaction to what seems to me a very clear and able presentation by any interpretation of these words allow the governor to appoint at the Senator from Georgia; but to enlighten myself I venture to ask the beginning of a. term simply because the Legislature for any cause him a question. Suppose the design of the framers of this instrument has not filled the seat do you not 13ee that all the difficulties to which was to deposit with the Legislature, as bas been done, the power to the Senator has so eloquently alluded will occur at once Y Do you fill original terms in the Senate; but in order that there might be ne not see that schemes may be resorted to to prevent the Legislature chasm in the Senate, or that the Senate might be kept full,' to com from filling the seat f How do you know-I do not say it., I do not mit to the governors of the States tho power to give temporary com believe it, but take it to illustrate-how do you know but that a few missions in all instances when temporary vacancies occurred, either adroit persons in New Hampshire, knowing that the act of Congresll! by death, resjgnation, expulsion, failure to accept, or, as in the pres of 1866 required the Legislature chosen next preceding the expira· ent case, a change in the fundamental law of a State bringing on a tion of Wadleigh's term to elect the Senator, int~nded to bring on a hiatus. Suppose now that was the design of those who framed this vacancy Ly electing a Legislature in November last and postponing instrument. My request to the honorable Senator is that he tell me the meeting of the Legislature until Jone next Y Do you l;lOt see that what words they should have employed different from those which if somebody had a purpose to accomplish to force !L vacancy, to bring we 1ind in order to vest that power and accomplish that object Y about a vacancy, he had only to contrive any scheme by which the - Mr. HILL, of Georgia. I will answer the Senator with a great deal Legislature would not elect T I say again to the Sen'ttor from New of pleasure. They should have employed the very words that are em York that he has stn).ck the very point. Whenever you admit that ployed in the act of Congress carrying out this power vested in the the governor can fill a vacancy which is brought about by the failure President jn certain cases. The words " occurring by death, resigna- of the Legislature to do its duty for any cause you open the door to . tion, or the expiration of a previous term where the Legislature has conspiracy and fraud to prevent the Legislature from filling that failed to elect" should have been used. That would have covered it. vacancy. Mr. CONKLING. If my honorable friend will pardon me, that would There is but one escape from that result, and that is to say that the cover more tbau I have suggested to him. Why! It would cover language of the Constitution intended to confine the power of the every case where for any rea-son a Legislature decided not to elect, governor to cases of casualty that the governor could not foresee, th:i.t whereas I put to him this case: what language should have been em schemers in the Legislature could not foresee, thatconspirators could ployed to cover, and co~er only in that respect, the instance of a va not foresee, that nobody could foresee, and therefore nobody could cancy which the Legislature had not been able to fill! If the Sena.tor conspire to bring about. That is exactly the reason of the limitation ; will pardon me for a single moment, my purpose is not to iuterrupt and the very moment you open the door in this case-that is the chief or diYert him,-far from it. significance of this question-the very moment you allow a governor Mr. HILL, of Georgia. I see ; I understand. to fill the office of Senator at the beginning of a term lJecause the Mr. CONKLING. The Senator will see that the distinction I take Legislature, for any cause, for any reason, by any means, hn.ve failed is not technical or formal; it is substantial; and I will prove that by to fill it, in that event you open the door for the governor to make the a single illustration. If it should be the established law that wher appointment whenever the Legislature fails to..elect, and the rule may ever a Legislature decided not to elect the power to fill tlle vacancy be adopted all over the country and means may be universally re should revert to the executive of the State, the Senate and all of us sorted t.o to prevent the Legislature from electing at the proper time. must see how exposed the whole process of filling seats in the Senate And for that very reason the rule was wisely settled in Lanmanls case, would become; because the governor and his friends by cabal, in and as the report of the majority of the committee shows many cases trigue, maneuver, might so arrange that the Legislature would decide have occurred since that where States havo been allowed to remain not to elect or would fail to elect in order that the governor might for more than a year without one representative in the Sena.te because gather to himself the power to fill the vacancy. The next Legisla the Legislature had failed to elect, sometimes because of the conflict ture might decide not to elect,and soindefinitelywithin the six years of parties, one party being dominant in one branch of the Legisl::i.tare the executirn power of a State might usurp that which the Consti and a11other party being dominant in the other they would not agree tution deposits with the legislative power. Therefore, I ask the hon to go into the election. We have given a list of such cases. Do you orable Senator to give me the words or the alteration of these words not see that if yon once vary the rule in Lanman's case and admit by which the framers of the Constitution would have been able to that whenever the Legislature for any cause shall fail to elect a Sen cover the case now before us, without covering other cases which we ator at the beginning of a term the governor may appoint, you offer must all know they could not have intended. to cover. an indncement to the governor and men in the Legislature, for the Mr. HILL, of Georgia. I appreciate the Senator's question be rea,gons so ably depicted by the Senator from New York, to bring cause it is a very direct and forcible one nnd well put, and he has about that failure, that very thing which it was intended to prevent, ably presented, I trust, to the Senate the very reason why the power· that very thing which Mr. Wilson dreaded when he moved to strike contended for was not given. It is difficult to find words by which out the power altogether T He did not want to trust that power to the you could confer the power contended for without opening the case executiYe; it was not right; he was not willing to risk it there. to the fraud and usurpation so well spoken of by the Senator. Doubtless his mind saw dimly what the mind of the Senator from On the one hand the object was to keep up as far as possible the New York now so clearly sees, that it would open the door to immense State representation in the Senate. On. the other hand it was in frauds. tended to prevent the very combinn,tions and corruptions and cabals This is not only the rule, but it is wise that it should be the rule. and usurpations in behalf of the State executive to which the Senu, The primary object of the Constitution is to put in the State Legis tor has alluded ; and therefore no attempt was made to get language lature the power to fill this office and nobody else ; but.casualties may to accomplish both purposes, and it would bo difficult, I confess, even occur, death may come, resignation may come, Senators may l>e ex :yow at this late day, to employ language that would do it. For in pelled; there may be divers casualties by which the term thus filled stance, take the language in the report submitted by the Committee by the Legislature may become vacant, and vacant during the recess of Detail before tllese amendments were put in by Mr. Madison; the of the Legislature and when Congress may be in session. It is im langua,ge was this : portant, therefore, a.a was said by Mr. Randolph, to a~low the gov Vacancies may be supplied by the executive until the next meeting of the Leg'..s ernor power to fill these chasms, not power to fill an original term. J.ature. I want to read in the hearing of the Senate another authority. I That covers all vacancies. Mr. Wilson objected to this phraseology, stated the other day that this word "otherwise" had received in the intimated the very trouble the Senator from New York has, so much courts a fixed interpretation. The Senator from Vermont was kind more ably than even he did, depicted in a few words, that it opened enough to say that he had never heard of such a construction put . the opportunity for collusion and corruption and conspiracy between upon the word before. I have no doubt if I had time I could find oppmiition parties in the Legislature and the governor, and gave occa numerous authorities; but if I have found one, that is sufficient for sion to usurpation by the governor, and be was opposed to putting the purpose. I read from 21 Wisconsin Supreme Court Reports, t.he ' the power in the governor's hands at all, and moved to strike oat.the case of the State, on complaint of Kennedy 'CS. McGarry, page G03, the whole clause. opinion being by Dixon, chief-justice: The object of the framers of the instrument was to close the door The st.atute defininO' the po~crs of the board of supervisors of Milwaukee County to the possibility of the frauds to which the Senator from New York for tho re;!tJlation an:i' management of the hoase of correction in that county, con has alluded, and yet provide for the filling of casual vacancies, and tains this lan~age: "Said board shall also appoint one inspector for sa1d house of therefore they put in the words of limitation which restrain the ex correction, wno shall be the priucipal keeper of said house of correction, and who shall hold bis office for tho term of two years, commencing on the first Monday of ecutive power to fill vacancies. to cases of pure casualt.y that cannot January succeeding his appointment. unless sooner removed by said boatd for in· be anticipated, that cannot be foreseen, and therefore where there competency, improper conduct, or other cause satisfactory to said board." can be no conspiracies or combinations to usurp power on the part of the executive. That is the very reason of the difficulty the Senator One of the definitions of the wor4 "otherwise" is "other cause,'~ 1879. CONGRESSIONAL RECORD-SENATE. 281 and every Senator will admit that the words are precisely the same. bered to ever since, for the purpose of admitting this most excellent Mark the language: gentleman from New Hampshire, whom I should be glad to welcom& Unless sooner removed by said board for incompetency, improper conduct, or as our associate here, you open the door to all the frauds and corrup other cause. · tions and conspiracies so well put by the Senator from New York in The question before the court was what was the meaning of those his interruption a short time ago. words " other cause" in the power of removal. Hear what th_e court I say therefore it is important that yon close up this door and say: leave it where the proper construction of the Constitution puts it,. The board may remove for incompetency, impreper conduct, or other cause sat that the New Hampshire Legislature shall fill the original term. She isfactory to the board. has ample power to do it. Nobody can prevent her from doing it; Which you see was a very broad power. The word "satisfactory" nobody can compel her to do it, and if she fails to do it it is her own is emphaslzed by th'3 court. . fault and she can complain of nobody else. But if you allow New Hampshire by reason of her own conduct, thoughtless though it may :By " other cause" we understand other kindred cause, showing that it is im proper that the incumbent should be retained in office. have been or otherwise or accidental, to break down this rule to ad 1\Iark you, unless removed for incompetency, or bad conduct, or· mit her exce1lerlt Senator here for a short space of two or three weeks. other cause. Now the court decide that the words" incompetent" or months, you establish thereby a precedent which overturns a prin and" improper conduct" limit the meaning of the term" other cause" ciple which bas lasted half a century, and open a door of fraud that to causes growing out of the bad conduct or incompetency of the nobody can foresee or calculate against. incumbent. One remark which I wished to make I had forgotten. It is on tof place in this connection in my argument, but I forgot it in the right place. :By "other cause" we understand other kindred cause, showing that it i.s im proper that the incumbent should be ret.ained in office. If tho board should Gentlemen say that Lanman was rejected because the governor gave attempt to remove him for some cause not affectin~ his competency or fitness to him the appointment in anticipation of a vacancy; that is, his com discharge the duties of the office, that would be an excess of power, and not a re mission was .culty apparently in that case, that there was no vacancy; and the in one direction in favor of the admission of Senators appointed by nnswer is that although there :was no vacancy at the time the cer State executives as wel~ at the commencement of an original term as tifi'Cato was granted, it was in the power of the governor to make an at any period during its continuance. Such is the historical fact. appointment prospectively, and the suggestion comes from all around Then came the case of Lanman in 1 25, again that of l\fr. Sevier of the bonorablo Senator from Georgia that the Legislature itself can Arkansas in 1837. There appears to be between those cases a con elect in view of a prospective vacancy. I wi h to drn.w the Senator's flict, because there was a difference of facts; but in the present case attention to the fact that the power of the Legislature to elect pros let me remind Senators that we are proceeding not only; under the pecthely and the power of the governor to appoint prospectively are Constitution but uncler a law passecl in pursuance of the Constitu not the same. It is only fol'\ a vacancy that shall happen during the tion, at least I have never heard its constitutiona1ity questioned un recess of the Legislature that the governor may appoint. The vacancy. less questioned t'o-day by the honorable Senator from Georgia. I bad not happened at that time at all; there was none. Therefore the refer to the act of 1866 now compiled in the fourteenth section of the po-wcr of the governor to appoint prospectively is not at all equal to Revised Statutes, which provide : ihe power of the Legislature to elect prospectively. The power of The Lel5isl.a.tnre of each State which is chosen next preceding the expiration of 1he Legislature is during its se sion next preceding the time the the time tor which any Senator was electecl to ~epre ent such State in Con..,.ress vacancy shall occur; but the governor shall only appoint when the shall, on the second 'l'uesday after the meeting anJ. organization thbreof, proceed vacancy has occurred during a recess of the Legislature. to elect a Senator in Congress. .l\1r. HILL, of Georgia. The power of tbe Legislature of which the By th11t law was indicated the Legislatme and the only Legislature Senator speaks is conferred by statute. 'Ve are talking about con which should fill vacancies in the Senate of the United States, whether stitutional power now. · occurring by expiration of the term or from any other cause. Now I Mr. BAYARD. I apprehend all power conferred by statute is con submit to the Senate that the case of Mr. Bell, the claimant from stitutional. New Hampshire, has no precedent in its facts; and the conclm,ion to :Mr. HILL, of Georgia. Certainly, but I say to myexce1Jent friend which this ruos.t resl?ectable committee by their majority have.come from Delaware I concede outright that if the governor of Connecti would amount to this, that by act of Congress you bad prevented the cut issued ·a commission to.Mr. Lanman to take his seat in Febrnary Legislature "chosen next before the expiration of the term" from that commission was void if there was no vacancy in Febnrnry. But acting, and by a construction it is sought to prevent the executive of if the vacancy was in March and the vacancy did occur in March and the State from acting, so that neither by its Legislature, the primary the governor, as a precautionary measure, in order to ha>e the com constituency of a Senator, nor by the action of its executive, that is mission here by the time the vacancy did occur, so that the man could the supplemental power acting contingently under special an.cl re take the seat on the first day of the \acancy, dated his commission strained circumstances, can the State obtain her equal suffrage in the in February to take effect in March, it was good. How does any rule Senate, nor can the Senate have its subscription of composition from of law prevent that f How does the date render it inoperative f It the State. Can any such case be presented as a precedent 1 Did a.ny is the effect that is to be determined by the Constitution, not the case ever arise before in which a construction was given to the Con date of the instrument. It took effect on the 4th of Much. But it stitution that absolutely excluded the State from her equal suffrage is useless to discuss that. in the Senate whether it was to come from the Legislature or from I say, now, Mr. President, that three things I consider necessary: the governor acting within the restrv-ined and contingent Jimits of fust, the word "happen" in the clause giving the power to the Presi his power ~ . I 1879. CONGRESSIONAL RECORD-SEN.ATE. 283 tional, as much within the purview of the Constitution as its regular intended, I presume, to prevent any antecedent Legislature from an sessions; and we are here under the Constitution and by la.w, and a ticipating vacancies which had not occurred, or from filling vn.can vacancy· exists in the r~presentation from New Hampshire which did cies by anticipation; in other words, usurping the power of the nearest -0ccur in the recess of the Legislature of that St ate. If the governor Legislature to the event of the vacancy by a long preceding election; of New Hampshire desired that his Stato should be represented, he and they therefore gave this interpretation to the language of the ha.done of two cottrses open. If the machinery of the government of Constitution that made it obligatory npon the Legisla,ure, after a that State would permit him to bring the Legislature together, it was temporary appointment had been made by the executive, at its" next more in conformitywith republican form that he shouldconvenethe meeting" then to fill such vacancies. The language is mandatory. LegisJature although the Constitution might give him a discretion An important question was which Legislature shall do this thing, and to make a temporary appointment; but as matter of law if he had the law answers that which is chosen at a date nearest to the time convened the Legislature what Legislature would have been con when the -vacancy occurs. In this case the Legislature so chosen is vened The Legislature chosen in November, 18i8, or the Legisla that which under the laws of New Hampshire cannot be convened ture that preceded that ¥ Clearly the preceding Legislature, the Legis until May. The Legislature that preceded it is not, according to my lature that acljourned in June, 1878, was alone the Legislature that construction of this law, competent to elect to till this vacancy. In under the constitution and laws of the State of New Hampshire could that state of things, bas or has not the contingency arisen contem be convened, and yet that Legislature wonld have been unable to platecl by the Constitution; has or has not the vacancy happened ·choose a Senator. And why f Because in the language of the act of which was contemplated by the Constitution, and which the execu 1866 it was not the Legislat ure chosen next before the expiration of tive of the State is authorized temporarily to fill "until the next the term-- • meetin~ of the Legislature f " Mr. CARPENTER. May I be pardoned for a suggestion f Mr. HILL, of Georgia. Will the Senator from Delaware allow me Mr. BAYARD. Certainly. to ask him one question f Mr. CARPENTER. I take it for granted that the State of Ne·w Mr. BAY.A.RD. Certainly. Hampshire could not have tw 284 CONGRESSIONAL RECORD-SENATE. APRIL 7, when he did act in 1825 f Certainly not. He acted on the 9th of Feb that whether ?.Ir. Fult-on his colleague or himself should have a longer ruary and there was no vacancy for nearly one month after that time. or shorter term, was a question that had been decided at once upon How then can it be said that if the constitution gives to the executive their admission by lot, or perhaps before they took their seats; but of the State only as a matter of secondary resort, not as a primary in any event it was for a constitutional term. The Constitution in power, and for a temporary period and only under certain contingen dividing Senators into three classes provides as well for terms of two cies the right t.Q make the appointment of a Senator to supply a va years and four years as it does for terms of six yeats. It is just as cancy in the State suffrage and supply membership in this body,-bow definite in one case as the other, and the fact that it was one seat in can it be said that that right exists until all the facts base occurred the Sena.te and not another seat did not affect the law or tho reason which alone justify its exercise f If the vacancy had not happened ing applicable to the law or the power of the governor of Arkansas ! am now leaving out of consideration the meaning of the word "hap to fi.11 the vacancy. The expiration of a term of two years is just as pen" and the words as ociated with it; I shall presently come to that void of uncertainty as the expiration of a term of six. You no more part of the matter, but I am treating it for the present as if a vacancy can say that a thing "happens" at the. end of two years than at the which he would otherwise have been competent to fill, he was not end of six years. If you are to apply the definition of uncertainty competent because of a lack of authority lmder the Constitution; to the word "happen" then it applies to anything that mast occur in and therefore I say that the construction given to the report of the the certainty of the world's affairs, whether it is at the end of one, two, committee who reported in his favor in 18'25, that which is taken by or three years. Mr. Sevier was app~inted; he was appointed at the Judge Story of whose authority it will do :tor no man to speak with end of one original con titntional term and the commencement of out respect, is to be regarded, and what is it¥ That the Senate by a another. Nay, more; he was appointed in anticipation of a \acancy vote of 23 to 18 decided that the appointment could not be constitu that had not happened or did not exist at ~he time of his appoint tionally made 1mtil after tlw'l:acancy had actually occurred. Judge Story ment; and yet the Senate of the United States admitted him to its O'ives that as the reason why Mr. Lanman was refused bis seat in the membership. §en ate. According to the construction adoptell by Judge Story iu his Com l\fr. JONES, of Florida. Will the Senator from_Delaware allow me mentaries upon the case of Lanman, Mr. Sevier would not have been to ask a question T There is a clause of the Constitution to which he entitled to his seat, because the contingency had not arisen at the bas not referred authorizing the President to fill vacancies in civil time of his appointment by the governor of Arkansas, the vacancy had offices that happen during the recess of the Sen~te. Does not the not happened, and until it had happened the governor had no power President appoint before the time arrives for the vacancy to take to appoint. Tha.t was the reasoning in Lan man's case ; but the Sen effect T • ate seemed to disregard it wholly in Sevier's case, and further than Mr. BAYARD. I do not speak of custom, but I know a case in that they admitted him despite the fact that he was appointecl by the which that was proposed to be done at the last session of the Senate, governor to commence a new term upon the expiration of a constitu and I remember some private conversation between the honora.ble tional term for which he had originally been chosen. The fact that Senator from Florida and myself in 1Vhich I gave him then in private wlum two Senators .first come here from a State one is to have a term the same opinion that I do now in open Senate, th!-1.t I doubted whether of two years· and the other a term of four years awarded by lot does until the vacancy had occurred the emergency fort.he executive action not affect the constitutionality of their terms. It does not affect the had arisen. right of the governor to fill vacancies ju suck terms or therightof the I prefer, however, Mr. President, to argue this case solely upon the Legislature to :fill vacancies when such terms expire. The sarue rea basis of the language of the Constitution. app1ic1:1.ble to the office of sons, tho same rules apply to fill any constitutional term under the Senator. There may be analogies between the case of filling va Constitution. cancies in the office of Senator and the power of tho Federal Execu AB terms of senatorial service are fixed by the Constitution, all are I tive to make temporn.ry appointments to fill general official vacancies equally certain to expire by the lapse of time. The power to :fill them which IQay llappen during the recess of Congress. I do not deny tllat at their commencement is as strong in one ca e as in the other, and I there may be analogies, and the same reasoning may be applicable to do not think a rea-sonable distinction can be shown wlly yon should many cases _; but I feel that in this case it is safer, and better, and it not fill the beginning of that term which is marked by the expiration is sufficient for us, to confine our present consideration of the Consti of a preceding term because that preceding term under the Constitu tution to the case of Senators elected or app.ointetl under its provisions. tion is two years instead of four or six. '!'he question in Sevier's case I have said that the case of Mr. Lanman in 1825 is not so reported was whether it wa-sto be Fulton's seat or Sevier'sseatwhich was.first as to give us a satisfactory understanding why it was that the vote to become vacant by the efilnx of time. The uncertainty was as to of 23 to 18 was cast. If the statement made by Judge Story and his which of those terms was to be fixed by lot at two or four years; but construction of the meaning of that vote is true, then it puts Lan the instant that the lot had been drawn and the term had been fixed man's case entirely beside the one which we are now considering, be its efilux was certain, there was no uncertainty about it, th~ two years cause he was excluded for a totally different rea on from that which were bound to expire as certainly UB the four or six, and the new term is sought to be alleged as the ground for refusing :Mr. Bell admission. commenced upon the expiration of the old. He was excluded, says Judge Story, on the ground that the vacancy So then I say the decisions in the cases of Lanman and Sevier aie had not occuned at the time the governor undertook to fill it, and by utterly, as far as they are reported to us, inconsistent with each other, the terms of the Constitution he could not fill it by anticipation, bnt and the reasons that rejected Mr. Lanman would have rejected Mr. mu ~ t wait for the actual occurrence of the vacancy. Sevier, and imleed there were additional reasons for Mr. Sevier's re Mr. SAULSBURY. Will my colleague allow me to call his atten jection that did not exist in Mr. Lanlllan's case. tion to wl'iat was decided in the Lanman case as stated in this body In the history of the Constitution by George Ticknor Curtis, he by his father, whose statement I will read, if be will permit¥ treats in a short paragraph of the exercise cf these powers to fill up Mi:. BAYARD. I have the case here. I admit the authority with vacancies in either branch of Congress and points out the reason why reverence; there can be none higher with me, but I think perhaps I there was a mandatory clause in relation to the House of Represent shall meet the opinion of the Senator referred to by my respected atives that did not exist in respect to the Senate: colleague by saying that he was not considering and did not consjder The difference of origin of the two branches of the Legislature made it neces any such case as that which is now before the Senate, because it was sary to pronrle for differnnt modes of supplying the vacancies that mi .~ht occur in from the language written by him in 1 54 that I read to show that them. The obvious way of effecting this in tho case of a vacancy in tho office of a. representative was to ordel' a new election by the people, who can readily assem only until the opportunity was given to the Legislature to fulfill its ble for such a purpose; and the duty of ordering such elections was imposed on functions the power of the governor to appoint ca.me in as secondary the executives of the St.ates, because those functionaries would be best informed and supplemenfal. I have quotid at length in the course of my re as to the convenience of their meeting. marks from tlle minori.ty report which I :tind at 1)age 618 of this com And I believe that under the act of Congrf.'ss now existing it is left pilation of contested elections, signed by Judge Butler of South Car- to1 the discretion of the executives of the difforent States when they . olina, and Mr. Bayard of Delaware. will call special elections to fill vacancies occurring: But I come to speak now of the case of Mr. Sevier that arose in But the State Legislatures, to whom the choice of SenatcH-s was to be confided, 1837. The decision in that case was in one important respect upon would be in session fol' only a partof the yeu'; and to summou them for the special facts similar to the one before us. Mr. Sevier was duly elected for a purpose of fillin,!? a vMancy in the Senato might occasion in-eat incon"l"'enience. constitutional term and under the Constitution his term as finally The committee of detail, therefore, provided that >acancics in the Senate might determined was for two years and not four or six. It was upon the be supplied by tho executive of the State until the next meeting of its Legisl.a.tul'e. admission of Arkansas as a State in the Union. Mr. Sevier was one Therefore, the rea~on is intelligently stated by this able and dis of the first Senators elected from Arkansas. He was elected in 1 36. tinguished commentator and historian of the Constitution why it According to the Constitution he and his colleague hail to draw lots was, from the difference of the constituencies to elect a Senator and to know to which class of Senators they should be assigned. In that a Representative, that the power was given to the executive of the lottery Mr. Sevier drew the shortest term, which expired on the 4th State to make a temporary appointment to the Senate which should of March, 1837, so that having been elected in 1836 he occupied a end when the next session of the Legislature should occur, upon seat but about one year. After he drew the short term and before whom was imposed, by mandatory phrase, the duty to fill the va the period arrived at which he would have to retire, according to the cancy which had occurred. limitation of his term of office, the governor. of the State, in antici Now, sir, as to the meaning of the words" vacancy" and" happen." pation of the vacancy which must llappen after the 3d of March, I admit there is great force in the reasoning :10d in the author.ities of 1837, appointed Mr. Sevier to fill the vacancy that would necessarily the Senators who have spoken in favor of the report of the ccmmit exist after the expiration of his constitutional term-and the Senate tee; and authorities are to be found which would restrain the mean decided to admit him under such an appointment. ing of the word "happen " so that it is to be only the result of a . Now it is said that 1he fact was that his term was decided by lot, casualty. "Happen" is used by lexicographers as a sy. onym to 1879. CONGRESSIONAL RECORD-SENATE. 285 "'occur;" " to happen" is " to occur;" "to occur" is "to happen." vions meaning of the act of Congress. I take it for granted that the The common use of words may perhaps often misapply either of these; Legislature to be called together is a Legislature competent to elect; but can we divorce this word "happen" from its associates Y Is it otherwise there is no use to call it, and now bow stands the question possible that when the framers of the Constitution, such admitted as between him and me 'f I understand still he does not consider that masters of language as they were, inserted words, they did it for the the Legislature whicli is chosen next before the occurrence of th~ purpose of restraining the meaning of the words which they had pre vacancy is the only one to elect, whereas I do, and, therefore, I think viously employed f I suggest to the honorable Senator from Georgia, that the case he puts or the impossible case which is sought to be whom I do not now see in his ~eat, that if ithau intended that nothing created by the majority of the committee iu their report, will be this, but a vacancy by resignatiou should become a case for a temporary that yon place a State in such a condition that she has no Legislature appointment by the State execut.ive, why not say" a vacancy which that can elect a Senator, and yon refuse to allow the vacancy to be shall happen by resignation and not otherwise T" Is it possible that filled by the governor. Now, that I hold is a state of affa.irs never "otherwise' means "the same f" Does not" oth erwise" mean "other contemplated by those who framed this Government. They did in 1 ways'" Does it not mean • ·not in a si Dilar manner f" I despair of tend that there should be the primary power in the constitutional appreciating the force of the EQglish language if I am told that constituency of a Senator, which is the Legislature, to elect either for "other" means" the same," and that" otherwise;' means" likewise original terms or to fill vacancies; but in their absence, when a va or similar/ I confess my inability to grasp so surprising and strange cancy happened which they, not having been assembled, had no op a meaning of the word" otherwise" as it occurs to me. You may fill portunity to fill and therefore had no uuty to fill, the governor shonlu this vacancy if it happen by resignation or otherwise, and it is here appoint until they met, and until the time had come for the exercise after that "otherwise" is placed in that connection to restrain the of the exclusive power which the mandatory phrase of the Com;titu meaning of the word ''resignation," and not to enlarge it! I cannot tion imposed upon the Legislature, which is that they shall proceed so construe it. to fill that vacancy. A vacancy has happened; it has occun-ed; it has come to pass in Mr. CARPENTER. If the Senator will allow me :i. moment, the the represenation of the State of New Hampshirn in the Senate of provision that the appointment made by the governor shall extend the United States. It did not happen by death, nor by expulsion, only to the meeting of tho Legislature it) in tho Constitution of the nor by resignation; put it did happen "otherwise." Mr. President, United States. It does not acquire support from the act of ld66, it seems to me that in the construction of the frame-work of govern and cannot lose any force in consequence of it. Therefore th.is ap ment substance, and not technicality, should be followed, and that pointment which bas been made, if it is a valid one, by the governor its great objects should be always kept in view. Recurrence to the of New Hampshire must expire as soon as the Legislature of thali debates in the convention wherein was framed this Constitution of State convenes. The CongToss of tho United States cannot determine our Government will show that there was great apprehension, and at what is the Legislature of New Hampshire, bnt if the governor of that time well founded, among the founders lest the Government. of that Sta.to should convene the Legislature of tho Stato under its con the Union should not be suppliecl by the voluntary elective action of stitution and laws to meet to-morrow morning, the old Legislatnre the States. They knew that it was in the power, as it is in the power would have to meet. of the States, or a majority of them, to refuse to elect Senators, and Mr. JONES, of Florida. Does not the Constitution require that so the legislative powers of the union would be suspended. In that Legislature to fill the vacancy ~ most luminous and able opinion which stands almost without its Mr. BA.YARD. I would rather turn the Senator from Wisconsin equal in the annals of our jurisprudence, the opinion of Chief-Justice over to the report made by the Committee on Privileges and Elec Marshall, in the case of Cohen i·B. Virginia., he states that proposition tions on this very case at tho last session. The opinion was reported nearly in the words I have used. to the Senate, and I believe it was accepted and adopted by the Sen Knowing such power to exist in the States, what was the action of ate, without any division, that the Legislature competent to elect tho convention' They met, not to place difficulties and technicali rt!r. Bainbri