The daily union. [volume] (Washington [D.C.]) 1845-1857, 1852-12-22

The action of The Senate al least in one event. will
be canyassed throughout the country. and Tor many
years; shall therefore assign the reasons for my vote
The question involves construction oil lhe eons'u-
ton.
The only portions of the constitution touching the
case are these: xs
.AHr l. sxo 8 The Senate of the United States shall
be composed Of senators from each State chosen oy
the legislature thereof for six years I'm, \,
the first election they shalt be divided MS equally as may
shall be vacated the expiration OF the second year
of the second class at the expiration OF the fourth year. ana
one third may be chosen every second year ii
ces happen resignation Otherwise during the recess
make temporary sppoin,msn,s unl he next meeting
the legislature which shall then fill such vacancies
lions senators shall be prescribed in
each State by The Legislature thereoi bur the Congress
may any ne by law make alter such regulations,
except as 10 the places OF choosing senators
Kentucky has prescribed this matter for herself and
Congress has not at any time, by law made or altered
any regulations" concerning il.
The following facts make up the case: On the nth OF
December, 1851, Henry Clay was senator from Ken
lucky chosen by the legislature for six years. which
would have expired on the Sd of March, 1855. Being
senator he resigned by communication to the legsla
ue OF Kentucky declaring that was 10 take effect on
the first Monday in September, 1852. The Legislature,
then in session, received the resignation and chose Mr.
Dixon 10 fill the vacancy thus 10 occur, from the first
Monday in September, 1859, 10 the third day OF March,
1861 The Legislature then adjourned On the 29h day OF
June 1852 during the OF the legislature OF Kentucky
Mr. Clay died. and the governor Of that State made STEM
porary appointment of Mr. Meriwether senator from
Kentucky, 10 hold the seat until the first Monday Of Sep
tember 1852 Mr. Meriwether Immediately took the va
seat and held il until Congress adjourned the last
day of August 1852 On the 9th Of December, 1884, the
Senate reassembles Mr.. Meriwelher does not appear,
and Mr. Dixon appears and presents his credentials, and
claims the vacant seat.
Alanesly Mr.. Dixon is one of tcO senators "chosen
by the Legislature OF Kentucky for six years." and he
chosen TO fill vacancy which has happened in the
| term of Mr.. Clay.
The whole question turns on the point, How did this
Monday September the day when he should vaeats
his seat and died nevertheless senator before that day
arrived. Mr.. Dixon was appointed by the legislature
when in session, before not only the day which Mr..
Cay's resignation fixed for his retirement, but also be-
i fore Mr. Clay's death.
We who maintain MIR. Dxons title insist that the va
\ cancy happened by Mr. Cays resignation On the con-
trary. those who deny Mr. Dixons title insist that the
vacancy happened by Mr.. Clay's death.
i Four questions arise: first, can senator resign
Second, senator resignng appoiMa future day for
his retirement from, the Senate Third. the proper ap-
pointing power receive such resignation, and prospect
lively fill the vacancy Fourth, # the Legislature go pro-
speclively fill the vacancy, the appointment be de-
ead by the death OF the resgniDg senator before the
arrival Of the day fixed for his retirement IRON The
Senate tM
If senator can resign, and can so resign prospective
y, and if the fill the vacancy prospect
iusy and their action cannot be defeated by ihe death
OF the resgnng senaior then Mr. Dxons title is good,
valid, and complete.
The first question is expressly decided by the consti-
tuition. which declares that vacancies may happen by
The second question is decided by an unbroken
cession of pecedents from the foundation OF the govern
ment Mr. Bledsoe so resigned, fixing future day so
did Mr. Clay in 1S42, and did Mr.. BeneR in 1852,
and so did Mr.. Fooe in 1852.
i The third question is answered with equal distinct
ness by precedents The legislature OF Kentucky pros
pecliyeIy filled the vacancy made by Mr Clay's resg-
nation in 1912; the governor OF Georgia pfospectyey
led the vacancy of MIR Berren in 1862 and The gov
legislature OF Mississippi prospectvey hlled The
vacancy OF Mr. Fooie 10 1854
The only question remaining is the fourth Can the
death OF the resgnng senator after the legislature has
prospecvey filled the vacancy, and before the day fixed
for his retirement defeat the appointment OF his successor
already made
No such event has happened before this, and there
is precedent On each side we are left to reason
LIST, Now il is clear that the resignation and appointment
no, any oppressed condition that the resgning sena
tor shall live until the day fixed for his retirement but IL
is the contrary on Its face unconditional and absolute
There two parties and only two parties to The act
the senator who resigns, and the State which receives
the resignation and appoints the successor Both these
parties agree that the resignation shall be unconditional
and absolute on the face OF the Transaction.
ii Has the esignng senator any reserved power over
his resignation arising from implication OF law after de-
lveTing publishing IT, TO revoke IL or 10 defeat the
prospective appointment OF his successor already made
No In Bedsoes case that senator, when the day liked
for his retirement arrived declared his purpose TO revoke
his resignation and to retain the seat The Senate de;
eided that be could not that his resignation was beyond
his control, and was absolute,
II The retiring senator cannot revoke his resignation,
and defeat the prospective appointment OF his
sOr already made, then s equally clear That he cannot
by giving up his and retiring before the day fixed by
his previous resignation, annul the effect OF that act
defeat the prospective appointment of his al
he could do in one way what he could do in another
that he could do by indecon what he could not do d
reotly.
What is the why the resigning senator may not,
by revocation by another act OF resignation IN the in
erva defeatthe prospective appointment oil his successor
already made II is because the act Of resignation,
when delivered published and especially when receiv
ed and made the foundation o the prospective appoint
ment OF his successor rs faf oocompiia vacancy is
perfectly made and is perfectly filled. Whatever after.
wards may be done may happen. the appointed sue
has title TO the place 10 WHICH he Is thus appoint
| ed WHICH is necessarily indeieasibe.
| And now, If the retiring senator cannot defeat the
prospective appointment oil his successor peher by re.
vokng his resignation nor by SECOND and intermediate
of resignation, then he cannot defeat n by dying
whether his death be voluntary or Involuntary The
policy OF the constitution is the same in whatever way
the obstruction the act of the Stale appointing the sue
cessor may oder ise The first resignation was CON.
pee and ndefeasble and the appointment oil The sue
cessor is also complete and lndeieasibe.
proceed TO NOTICE the objections to this view. First,
resignihg senator makes vacancy which renders the
happening OF the one contemplated in and consequent
upon his resignation impossible. | reply, he does moi
make il impossible. Certainly, when The day liked ars
rves the seat vacant equally whether The resgning
senator ia dead then retres. He does one oil two
thinaseilher, FIRST he makes interruption Of repre-
senalion which be filled up until the day for his
successor 10 enter shall arrive, or, second, he makes
temporary vacancy" which be hed up by the COM
peten authority until the day when the successor can
Ter shall have arrived THIS latter view has been adopt
II. r. L. l.s.t. n.fL