"And if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." The question presented to the committee by the foregoing resolution may be thus stated: What shall be the operation of an appointment of a senator made by the governor of a State in the recess of its legislature, where the legislature has met and failed to fill the vacancy by an election? The decision of this question depends upon the construction of the above words of the Constitution. If the power to fill the vacancy is devolved excluively upon the legislature at its next meeting, then it would follow that the appointing power of the executive would be exhausted; and the senator appointed by him could, according to precedent, hold his seat only during the session of the legislature; or, in other words, his commission would expire at the adjournment of the legislature. The question may be presented in another point of view, which might possibly lead to a different conclusion. If the legislature has merely the potential capacity to fill the vacancy according to its discretion, then a failure to perform this function might leave the executive appointment good to fill a continuing vacancy. This reduces the question to this proposition, viz: Do the words of the Constitution impose a limitation upon the office or the appointing power ? Before stating the conclusion of the undersigned, it may be proper to cite the precedents which are applicable to the question under consideration. The first case upon record is as follows: George Read, a senator from the State of Delaware, resigned his seat upon the 18th day of September, 1793, and during the recess of the legislature of said State. The legislature of the said State met in January, and adjourned in February, 1794. Upon the 19th day of March, and subsequent to the adjournment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the vacancy occasioned by the resignation aforesaid. The Senate decided- That Kensey Johns was not entitled to a seat in the Senate of the United States, as a session of the legislature of the said State had intervened between the resignation of the said George Read and the appointment of the said Kensey Johns. Mr. Eaton, from the Select Committee to whom was referred, on the 5th instant, the motion "that Mr. Lanman be admitted to take the oath required by the Constitution," together with the credentials of Mr. Lanman, submitted the following report: That Mr. Lanman's term of service in the Senate expired on the 3d of March. On the fourth he presented to the Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, setting forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to him. The certificate of appointment is dated the 8th of February, 1825, subsequent to the time of notification to him by the President. The certificate further recites that, at the time of its execution, the legislature of the State was not in session, and would not be until the month of May. The Senate decided that Mr. Lanman was not entitled to a seat in the Senate of the United States. In May, 1809, the President of the Senate laid before that body a letter from the Hon. Samuel Smith, of Maryland, stating that, being appointed by the executive of that State a senator, in conformity with the Constitution, until the next meeting of the legislature, which will take place on the 5th day of June next, he submits to the determination of the Senate the question, whether an appointment under the executive of Maryland, to represent that State in the Senate of the United States, will, or will not, cease on the first day of the meeting of the legislature thereof. The Senate decided that the Hon. Samuel Smith, a senator appointed to fill a vacancy, was entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryland, which, by the proclamation of the governor of said State, was to convene on the 5th day of the present month of June; unless said legislature shall fill such vacancy by the appointment of a senator, and the Senate be officially informed thereof. The chairman of the Committee on the Judiciary, at the 2d session of the 31st Congress, to whom was referred the resolution of the Senate directing said committee to inquire and report at what period the term of service of a senator appointed by the executive of a State, during the recess of the legislature thereof, rightfully expires, submitted the following report: The question presented by the resolution turns mainly upon the construction of the clause of article 18, section 2, of the Constitution of the United States, which provides that, "if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointment until the next meeting of the legislature, which shall fill such vacancies." Your committee are of the opinion that the sitting member, under executive appointment, has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a senator, during the next meeting thereof. To fill such vacancy, it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion, that such acceptance should appear by the presentation to the Senate of the credentials of the member elect, or other official information of the fact at which time the office of the sitting member terminates. When the member elect is present, and ready to qualify, his express acceptance is at once made known; and when his credentials are presented in his absence, his acceptance may be fairly implied. Perhaps it would have been as well if the strict and literal meaning of the words, "until the next meeting of the legislature," had been observed on the first occasion in which their construction was brought in question; that would have had the merit of certainty, but a certainty that might have been too severe for the true and liberal intendment of the framers of the Constitution. They certainly did mean to say that an executive appointment should terminate when legislative jurisdiction shall commence or be exercised. To give this severe construction to the words quoted would in all cases leave a State unrepresented for a time, that depending on legislative action. Rather than lead to that result, the Senate, under the precedents quoted, seem to have regarded the "next meeting of the legislature" as synonymous with the next session of the legislature, during which time the member under executive appointment might hold his seat, unless it should be filled by an election before the termination of a session; and this was probably in analogy to that provision of the federal Constitution by which power is vested in the President "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." As there was no reference to a committee, and no reported debate in the case of Mr. Smith, of Maryland, which made the precedent, the essential reasons which govern the judgment of the Senate are not given; the case, however, seems to have been well considered. There are two considerations which seem to have entered into that judgment: first, that the State legislature, after their meeting, should have an opportunity of consultation, in making a choice of senator, and the State, during such term of consultation, should not be deprived of a representative in the Senate. The utmost limit contemplated for the exer cise of this legislative jurisdiction was the term of the sitting of the legislature. The second consideration was a confident assumption that the office would be filled during such term. The idea that a session would pass over without an election was not in the mind of the Senate. The Senate went very far when it gave an interpretation to the words referred to beyond their literal meaning, limiting the tenure of office of the sitting member to the day of the meeting of the legislature. This met with a decided opposition from a respectable minority, and in subsequent cases distinguished senators maintained the same view of the constitution. By the report of the committee, we are required to recognize as authority and to enlarge this liberality of construction. To say that the words, "until the next meeting of the legislature," may be construed to mean not only until and during the session of the next legislature, but beyond the next meeting of the legislature-in other terms, that until the next meeting, &c., may operate under the authority of precedent to give the sitting member a right to hold his seat beyond the meeting of the legislature. We cannot agree that by the authority of any precedent these words, "until and beyond," shall have such a meaning as will control the import of the Constitution, both in its spirit and letter. The Senate of the United States is composed of organized constituencies, the State legislatures; to them belong the power primarily of electing their senators, when they are in session at the happening of the vacancy, and at their first meeting when it happens in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. Their right and authority to fill or supply vacancies, which have been temporarily filled by executive appointment, are as absolute and exclusive as was their power in an original election. When their power is brought into existence it must supersede all others, with this qualifi cation, and that according to precedent, that they have a session to make the choice. In our view it does not depend on the actual exertion of the power to elect, but on its existence. A senator under an executive appointment may, or may not, represent the political views of his State; he may be the mere personal favorite of the governor. The Senate, as far as practicable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union. In nothing that is said here would we have it inferred that we regard the sitting member, whose case is before us, as one who may not claim his seat on high grounds and respectable authority. The sanction of a majority of the committee, the opinions of eminent jurists, out of this body, go far to sustain his claim. But from the views of the undersigned, above presented, we do not think the Hon. Samuel S. Phelps is entitled to hold his seat in this body. A. P. BUTLER. The vote upon the resolution reported by the committee was-yeas 12; nays 26. So it was rejected. NOTE. The debate will be found on pages 176, 250, 303, 630, 689, and 646 of the Congressional Globe, 33d Congress, 1st session. THIRTY-FOURTH CONGRESS, FIRST SESSION. Mr. TRUMBULL, of Illinois. The State cannot add to the qualifications of a United States senator prescribed in the Constitution of the United States. Whoever possesses those qualifications is eligible. IN THE SENATE. FEBRUARY 27, 1856. Mr. BUTLER, from the Committee on the Judiciary, made the following report: That it has been under consideration and discussion by the committee, and there being such a division of opinion as to render it proper, in their judgment, to refer the subject to the Senate, they ask to be discharged from the further consideration thereof. Certified copy of the resignation of Lyman Trumbull of the office of justice of the supreme cour of the State of Illinois. ALTON, May 19, 1853. SIR: I am induced, by considerations of a personal and private character, to resign the office of justice of the supreme court; but to allow time for the election of a person to succeed me, so that no public inconvenience may result from a vacancy on the bench, I hereby tender my resignation of said office, to take effect on the fourth day of July next. Yours, very respectfully, His Excellercy JOEL A. MATTESON, Governor of Illinois. UNITED STATES OF AMERICA, State of Illinois, ss: LYMAN TRUMBULL. I, Alexander Starne, secretary of state of the State of Illinois, do hereby certify that the foregoing is a true and correct copy of Lyman Trumbull's resignation, filed in the secretary's office May 20, 1853. And I further certify that Walter B. Scates was elected to fill said vacancy, and entered upon the discharge of the duties of said office July 13, 1853. In testimony whereof, I have hereunto set my hand and affixed the seal of State this ninth day of November, A. D. 1855. [L. S.] ALEXANDER STARNE, Secretary of State. Certificate of Joel A. Matteson, governor of the State of Illinois, relative to the election of Lyman Trumbull to be a senator of the United States, and also to the office of justice of the supreme court of that State. EXECUTIVE DEPARTMENT, State of Illinois, November 1, 1855. I, Joel A. Matteson, governor of the State of Illinois, do hereby certify that it appears of record that on the eighth day of February, A. D. 1855, the two houses of the legislature of the State of Illinois met in convention and proceeded to vote for the election of a senator for said State to the Senate of the United States; that upon the final vote Lyman Trumbull received fifty-one votes, Joel A. Matteson received forty-seven votes, and Archibald Williams received one vote; and the Speaker of the House of Representatives thereupon declared Lyman Trumbull elected a senator of the United States for the State of Illinois, for six years from the fourth day of March, A. D. 1855. That it further appears from record that the said Lyman Trumbull was elected on the seventh day of June, A. D. 1852, a justice of the supreme court of the State of Illinois for a term of nine years; that on the 24th day of June, A. D. 1852, he was duly commissioned as justice for the term aforesaid, commencing on the first Monday of June, A. D. 1852, and ending on the first Monday of June, A. D. 1861; that he was sworn and entered upon the discharge of his duties appertaining to said office; that the constitution of the State of Illinois contains the following provision, to wit: "The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit in this State or the United States during the term for which they are elected, nor for one year thereafter; all votes for either of them, for any elective office, except that of judge of the supreme or circuit court, given by the general assembly or people, shall be void." All of which, together with the legality of said election, are respectfully submitted to the Senate of the United States. By the governor: To the PRESIDENT OF THE SENATE of the United States. J. A. MATTESON. [L. S.] Secretary of State. ALEXANDER STARNE, UNITED STATES OF AMERICA, State of Illinois, ss: I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that Lyman Trumbull was on the seventh day of June, A. D. 1852, elected judge of the supreme court of the State of Illinois, and was duly commissioned as such for the term of nine years, from the 24th day of June, 1852: that he took upon himself the oath of office, and entered upon the discharge of the duties of the same; that said term of office for which he was elected is unexpired, and will not expire until the 27th day of June, 1861. In testimony whereof, I have hereunto set my hand and affixed the seal of said State this 24th day of February, A. D. 1855. [L. S.] ALEXANDER STARNE, Secretary of State. Protest of certain senators and representatives of the legislature of the State of Illinois against the election of the Hon. Lyman Trumbull as a senator of the United States. To the honorable the Senate of the United States: The undersigned, senators and representatives of the people of the State of Illinois, in the legislature thereof, respectfully represent: That at a meeting of both houses of said legislature, in general assembly convened, on the 8th day of February, 1855, for the purpose of electing a senator for said State to the Senate of the United States, for six years from the 4th of March, 1855, fifty-one votes were cast for Lyman Trumbull, forty-seven votes for Joel A. Matteson, and one vote for Archibald Williams, and that one member of said legislature was absent. They further represent that the constitution of the State of Illinois contains the following provision in the tenth section of the fourth article thereof: "The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit in this State or the United States during the term for which they are elected, nor for one year thereafter; all votes for either of them, for any elective office, except that of judge of the supreme or circuit courts, given by the general assembly or the people, shall be void." They further represent that said Lyman Trumbull was, on the 7th day of June, 1852, elected judge of the supreme court of the State of Illinois, and was duly commissioned as such, for the term of nine years from the 24th day of June, 1852; that he took upon himself the oath of said office, and entered upon the discharge of the duties of the same; that his said term of office for which he was elected is unexpired, and will not expire until the 27th day of June, 1861; and that in and by virtue of the said provision of the constitution of the said State of Illinois, the votes cast by the members of the general assembly for said Trumbull, for senator of said State, as aforesaid, are null and void, and said Trumbull is not legally elected to the Senate of the United States, and is not entitled to his seat in said Senate; and against said pretended election the undersigned, in behalf of themselves and their constituents, do hereby protest. Senators.-Hugh L. Sutphin, Joseph Morton, James M. Campbell, J. C. Davis, W. H. Carlin, A. J. Kuykendall, M. O. Kean, Ben. Graham, John E. Detrich, Silas L. Bryan, James L. D. Morrison, G. R. Jenngan, and A. P. Corder. Representatives.-F. D. Preston, C. L. Higbee, Tho. P. Richmond, George Walker, T. B. Sauner, Dr. H. A. Browne, S. D. Masters, Saml. H. Martin, William J. Allen, B. P. Hinch, Eli Seehorn, James Bradford, Jonathan Dearborn, D. McClain, Frank M. Rawlings, G. M. Gray, Jona. McDaniel, Wm. R. Morrison, P. E. Hosmer, L. F. McCrillis, George H. Holliday, J. R. Bennett, S. W. Moulton, W. N. Cline, Presley Funkhouser, James M. Pursley, Hugh Gregg, C. C. Hopkins, and Henry Richmond. Credentials of the Hon. Lyman Trumbull, elected a senator by the legislature of the State of Illinois. It is hereby certified that, in pursuance of a joint resolution to that effect adopted, the two houses of the general assembly of the State of Illinois, now in session at Springfield, in said State, did convene in joint session in the hall of the house of representatives on the eighth day of February, in the year of our Lord one thousand eight hundred and fifty-five, for the purpose of electing a senator to the Congress of the United States for the term of six years from the fourth day of March in the year aforesaid, and that Lyman Trumbull was then and there, by said joint session of the legislature of said State, duly elected senator to represent the State of Illinois in the Senate of the United States for six years from the said fourth day of March next. Dated at Springfield the ninth day of February, one thousand eight hundred and fifty-five. Attest: Clerk of the House of Representatives. THOMAS S. TURNER, Speaker of House of Representatives and presiding officer of said joint session, |