Southern telegraph., 1838-03-27

the 25th Congress,w was vacant, ana ot course
there was vacancy in the office, which
continued up to the time on which the dov-
ernor ;ssped his writ. But have already
attem tied to show that it was not vacan-
cv which hid happened in the representa-
lion from the State, within the meaning ol
Lihe Cd section, 1st article. II was one o'
those regular, stated, and periodical vac"n-
cies which it was the duty ofthe Legislature
and no, the Executive To provide, and tor
which the unncra! election law OF the stale
does. as contend, make full constitutional
provision. All elections, whether genera
or special, whether bv law or by executive
authority. are to fill vac ,ncics; tor an OIL
flee must be vacant before it can he hlied;
and power to Gil vacancies would be
p,wcr to gill all Offices. II is true, rs the
gentlemen say in their argument, lint the
propriely of film. vacancy does not de-
pend upon tie particular mode of Ms hap
pcning; but upon the particular mode OF IT'S
happcnng depends the propriey OF piac'ncs
the power Of directing the time, place ana
manner Of filing it IN the hands of the Ie-
.isla,ure. instead Of the Executive. The
constitution intended that all vacancies
sh ,uid lie filed; but it gave t. the Legisla-
iure the authority To direct the filling OF the
regular periodical vacancies, anil to tho
Executive the direction in filling such va
cancics as were unforeseen, and the result
of accidentand contingency. Each of these
repositories may neglect to exercise the
delegated power, but such neglect does not
taansfcr the power. Will any one contend
that, upon the resignation of Representa-
tive, and the delay Of tho Governor in issu-
Ing his wri', the Legislature could order the
election TO fill such vacancy:
II is conceded on all hands, that the pro-
clamation of the President, convening Con-
gress, did not create the vacancy; but that
it existed as fully on the 4ih OF March as
when the Governor issued his wri; to fl it.
| Now, for the sake of argument, admit that
| it came within the meaning of the 21 section
If the lst article, and let us see the result
At what time must the Governor issue his
| writ, ordering an election to fill such vacan
cy? The constitution says, .when vacan-
cies happen i'll she representation from any
| State, the Executive authority thereof sl,al!
issue writs," &c. The happening Of the
vacancy then, indicates the time when the
Executive authority shall act: his duty is
clear and positive: he has no discretion
whether he shall act or not: his only dis
| creion is that which necessarily attaches TO
the exercise of the duty, in the fixing Of a
| reasonable time, place and manner Of cleo
tion. The issuance Of his writ, denotins
the time, place and manner, is duty in-
cnmbent upon hun, Sd soon as he is aware
''that vacancy has happened" &c. The
vacancy under consideration, ifii lappene''
at all, happened on the lih of March. II
was "a regular, anticipated, and forcseen va
cancy. The Governor knew beforehand
when it wonld happen; an! was bound i'm
imperative command Of the constitution, and
issue his writ of election. The constitu-
ton does not say "wben Congress is con-
vcned," or 'when an emergency arises,'
or sswhen the Executive authority deems il
| eypedcnt and necessary, he shall Issue his
writuf riecElon;" but "when vacancies hap
pen," &c. he shall do it.
The argument OF Mcssrs. Claiborne and
GholsOu submitted to the committee at the
special session, presents probably the only
instance on record Of "A grave attempt To
prove the Executive authority of a State is
not bound to perform an act which the con-
siiin'Ion expressly commands, unless he
thinks such act necessary and expelient;
and that if he thinks M Inconvenience is
likely to result from his fiilure to obey the
command, he need not obey it; in other
words, that the performance or non perfnr-
mance,' by the Executive, Of constitutional
duties, depends entirely upon exec ltive dis
cretion. Slrely these are new and elastic
principles unconstitutional law, and must be
exceedingly palatable to executive taste.
have always understood that when the
constitution directs the performance of an
act, by ministerial officer, the direction it.
seitis constitutional decision that snch act
is necessary and expedent, and that the a
gent to whom the peri rmance is assigned
has no right whltever to interpose his dis
crctIon Or Judgment as to its expediency or
necessity.
take 1t, then, that the provision making
1t incumbent upon the executive authority
to issue his writ, when vacancies h,ppan.
&C, Is OF itself constitutional decision.
both OF the necessity and expediency of the
ACT, whenever the contingency accurs If
am correct in these positions. and this
was vacancy within the 2d section of the
LIST article, 1t follows, as matter of course
that the governor was bound immediately
after the 4th of March, (he time when It
hapPened,) to issue his writ of election: and
that he had no discretionary power to alb
stain from the act.
Now, It the executive authority was
bound on the 4fh of March, to have ;asuoa