Southern telegraph., 1838-03-27

Island, and Massachusetts,, It not others
contain such protests and instructions.
In all the commentaries upon this pro-
vision of the Constitution; in the able essay
Of the Federalist; in the interpretations o'
that eminent jnrist, Judge Story; N the 'e'
rislativc constructions Of all the States, u
has been considered as we'll settled az any
other principle Of the Government, that the
power to provide for any failure or neglect,
nr npr,per regulation on the part OF the
State Legislatures in relation to the time
places and manner Of election, resides no
where except in law Of Congress. THAT
the power Of supplying a deficiency OF 'c-
aisa,ive action OIL this subject exists, as has
been advanced in this discussion. IN the
Governors of the States, is doctrine not
less nnvel ,han absurd. The I'd section OF
the lst article, by which s'ch power Is sup
poscd to he conveyed, was deemed go tri-
Hn1 i'm lis character, and SO incapable o'
miscnnstructien. that it was never once al
luded 10 in the debates in CONVENTION Of any
State, nor in the commentaries of any wr'-
ter. 1t rcmains for the holiness ofthe pre-
sent day to assert that this clause contains
the great conservative principle, the sell,
preserving power, which the foolish trainers
of the ..stitution imagined had been EN-
braced in the 4,h sectian, and confined IN
is exercise to Congress alone.
The whole power and jurisdiction over
the sui jcct is, by the Constitution, divided
between thcState LegiSl,nres,suhject to the
control Of Congress, and the State Exccu-
tive. Now, there is no principle OF our
government more important or better set.
tied, than that which limits the exercise oi
power to the department in which 1t Is
cons'itutonally deposited. 1t is this princl
pie more than any other, that constitutes
the beauty and safety Of our political sys
TEN. The executive cannot exercise lc.
gisltive, nor the legislative executive tnnc
tions. Whatever then, may be the mean
ing of the clause "when vacancies happen
in the representation from any Siate," NC
it is clear that the power and jurisdiction t.
direct elections to fill vacancies belong ex.
clusiveIy to the Executive authority of the
State. No one, imagine, will contend
that the Legislature could direct elections
to fill such vacancies. So, ON the other
hand, il will hardly he cnntended that the
Executive can exercise the legislative pow
er given in the 4th section of the lst article.
The powers, whatever they may be, are
distinct and Independent.
have attempted. by fair construction
of both sections, to show that the Legislative
authority embraced the general election
and prescribed the time, place and manne'
of the election to fill the term, after which
election the Executive jurisdiction attached
with power to supply all vacancies which
might happen in the representation SO pre-
viouslv elected. This construction pre-.
vents the executive and legislative powe,
from clashing, so cohsonant with reason
and the spirit Of The constitution, and is bas
ed upon principles which have been re-
peatedIy recognized. The case of John
Hngc, p7ge l35, Contested Elections, in
voIved ;he question whether, in the absence
of any Legislation on the subject, the Cover
nor Of a State could, when vacancy hap.
in the representation from the
State, not only issue his writ, but fix in il
the time and place of election. 1t was de-
ground that the fourth section Of the first
article, giving the legislature the power to
fix the time, place. &c. applied to general
elections, and not to cases of vacancies
which might happen, and that the powe,
given in the second section tO:he Executive
authority was an exclusive, independent
power, carrying with it all the incidental
powers necessary for its exercise. | un-
derstand it to be expressly recognized, both
h1ff fho II III
case, that the executive and Legislative
powers over elections are distinct and indie
pendent, and not concurrent that the gene
raj election law Of State has no applica
ton to such cases as come within the juris
diction of the Executive, but that the Exc.
cutive can, in such cases, act without an,
regulation or law whatever upon the sub
ject.
The case Of Kensev Johns CONTESTED
Elections, p. S74) is still more in point
The facts were these: Geo. Read, Senator
from Delaware, resigned his seat ON the
18th September, 1893, during the recess o
the Legislature. The Legislature met ia
January and adjourned in February, 1874
without electing a Scnetor. On the 18th
of March, after said adjournment, Kensey
Johl rs was appointed by the Governor te
till the vacancy.
Up~., this stale of facts, the committee
reported the following resolution, which was
adopted by vote of 90 to 7:
''Resolred, That Kensey Johns, appoint
ed by the Governor of the State of Della
ware as Senator of the United States fol
said State, is not entitled to a seat in the
Senate Of the United States, a session o
the Legislature Of the said State having in
tervened between the resignation Of the
said Geo. Read, and the appointment of the
said KeI1sey Johns -