The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-12-21


in upon the tenure of Office when the term Of
Senator commences and that of another terminates.
lie therefore put out OF view the Limitation OF the
Sena toral NJ made by the Governor of Kentuc-
KY and all the remarks TO which it had given rise
He took il for granted that the Governor made "a
| temporary appointment to fill Mr.. Clay's ava
cancy," but the duration of that vacancy and Of
that appointment was question for the Senate,
and one from which ii could not escape.
lie wished il were in his power to vote for the
ADMISSION OF MIR. Dixon. lie had much rather do
| 1t than vote against him. 1t with reluctance
| that he felt himself compelled to make n decision
which will prevent gentleman elected by the LIE
gislature oil sovereign State from taking seat
| In this body. lie did not cali in question the
lldity OF the leg islatve proceedings at the time
they occurred, but considered them rendered mop
erative by the sad event which created
pected vacancy, inconsistent with the action pre-
| viously had.
How, then, stood this case? The third clause of
the first article of the Constitution provides for the
composition OF the Senate, by fixing the terms OF
service and the mode Of selecting the Senators, per
| Tnanent and temporary. Ii declares that eli va
cancies happen, 10y resignation or 9th rwse, dur
ing the Of the Legislature of any State the
| Executive thereof may make temporary appoint
ments until the next meeting OF the Legislature,
| which shall then fill such vacancies" The regu-
lar terms of the Senators for six years; and the
''vaCancies' herein provided for the unex pired
portions OF such terms, which are to be "fet" by
| the Legislature when it can act, and, when il can
| not, are TO be occupied by temporary erecutoe
appointments If therefore a Senator resign, his
seat is otherwise vacated, except by the expiration
| u his term, the 'vaCancy' Is for his original pc
nod Of service, to be temporarily appointed by the
| Governor, or filled by the Legislature
We come now to the question when did va
! cancy occur III the Senatorial term OF Mr.. Clay.
| All agree that none could be created by his resig
nation TIL the advent of the lst day of September
and no perso here denied that ''happened' the
| moment Of his death. On the 29th day of June
| the day OF that national misfortune, "a vacancy
| happened by resignation or otherwise" and it be
ing during the recess OF the Legislature OF the State
OF kentucky, the executive thereof was called upon
| 10 make a temporary appointment. And for hat
time? It'll the next meeting of the Legisature'
| whose duty it would then have been, in the words
Of the Constitution ",o fill such vacancy"
All this is very clear; and the Senate gave to the
certificate Of the Governor Of Kentucky its full con-
| stutional effect when it conceded that there
| a vacancy during the recess Of the Legislature.
| and he righttully appointed Mr.. MEaiwEThER to
fill 1t. But when he undertakes TO fix a limit to
the tenure Of the appointment, and fixes one diff
ferent from the Constitution, ia duty, while
| recognise the appoint to look to the Constitu
tiCn and not to the certificate for the iod of
vice. lie did not see why the Governor had not
the same right to determine any other Of the Incl
dents Of tie office, its compensation Tor instance,
as its duration. His connection with the subject
ceases when he has made the appointment and
granted the certificate.
In What manner is it contended that this Gle r
Constitutional provision is rendered imperative n
| the case before us? Mr.. Clay rendered to the LIE
| gslature of Kentucky during ito session the pre-
| Ceding December. letter Of resignation, to be
come such on the first day Of the succeeding Sep
| tember, and tbereupon the Legislature elected a
| successor to "fIl the vacancy on the arrival Of
! that day. And what was the nature and the con
stitutonal effect of these proceedings? 1t ID not
necessary to call in question the right of the lie.
gislature to make prospective election OF Sena-
tor Certainly, far as regards new term,
where nothing caa defeat its occurrence the prac-
ticc is too well standardization necessary, Indeed
to deny its validity. With respect TO accidental
pdcancits. the Constitution, by strict consruc-
tta hair kn
fore provision can be made for filling them. Such
uacCncies, Chose occurring during ths recess
says the Constitution, after providing for the &C
ton Of the Governor, -hcH be filled by the Lesisla
| ture at its nsIt session. This presupposes an
| tual, not a prospective existence of the vacancy,
| before legislative action, which is to follow, not
| p-ecede, that OF the Governor. However, he un.
deratood the practice has been otherwise, and did
not feel disPosed 10 question it, especially as a
different construction might deprive State Of one
OF its Senators for long time Bot the provision
under ouch circumstances, must be incomplete
and prospective, assuming only it's legal effect
when the pdcaRcy happens as contemplated.
Bot he repeated that these questions did not af-
feet his vic-. Of this subject. And therefore he
considered the analogy which has been drawn be.
tween this case and cases where prospective ap.
pointments have been made and which were rem
derea operative by the iuflment Of the condition,
or, in other words. the arrival OF the day during
the lifetime of the bent, as utterly tallaciou5
The point is the effect Of the death of Mr.. Cha
upon his own resignation, and upon the proceed
ings Of the Governor and of the Legislature.
The principles involved in this matter nei
ther deep nor implicated. The of Mr.. Ga
was an inchoate one to become complete and ef-
fectual on the LIST day Of September, # he was then
living, for certainly no act OF an incumbent can
affect the tenure of an office after his death Death
certainly dissoves all conneIion with office; but
tic question is not, as the Senator from New Hamp-
shire rep. esentcd, or rather nisrepresented, Ger
| tainly automatically, whether dead man can
resign, but whether the acts Of a dead man, done
when living, affect any of the attributes of the
office he held. He agreed with the Senator from
Connecticut that they could not.
He had nothing to say concerning the question
| which had been raised OF the power of Mr.. Clay
TO withdraw his resignation after he offered it.,
and before his death because that question is not
| involved here. Whether revocable or irrevocablc,
| it does not bear upon the conclusion at which he
arrived
He repeated. the act Of Mr.. Clay inchoate,
producing no vacancy, and the aci Of the Iegsla-
ture equally inchoate, filling none, unless rem
dered perfect by the occurrence of the fact upon
| which their operation depended
Did any "vacancy happen take place, occur,
on the tat day of September Certainly not; for
the seat Of IIr Clay became vacant in June pre-
ceding and no previous act OF Mr.. Clay could lave
any effect in terminating the vacancy or in Gre
ating another at the time indicated, for he was
then dead, and all his connection with the office or
control over it, had ceased. As it on the 3lst
day of August 30 it was on the lst day of Septem.
Der. There was nothing for the resignation to act
upon, for the Office had departed from him. or ra-
Their he from the office. lie said to the Legislature
| Of Kentucky, hold this office till the lat dav of
September, then relinquish it; but before that
time the act ofGod came to supcrsede this arrange
ment and the legislative proceedings to which it
led. An illustration may confirm what it appeared
10 him nothing could render clearer. Suppose the
Legislature had been in session upon the Gcath of
M. Clay can any one doubt their right to fill the
office with its constitutional tenure for the residue
of his term Of service? If they could not, then Mr.
| Clay created two vacances, one by his dealt and
anot, ~ his resignation, both of which required
the action of the Legislature; anomaly utterly
| unknown to our Constitution.
! The view he had taken rcConciled the proceed.
ings OF the Legislature of Kentucky with the plain
| provisions Of the Constitution, respecting the
"happening OF vacancy" in its recess, by con.
sdering the proceedings inchoate and incomplete
though regular, but deprived Of any validity by
subsequent occurrence which prevented the resig-
nation from taking effect.
Mr.. SEWARD said that, since he had addressed
| the Senate in favor Of Mr.. DIxoN's right to the
seat, proposition had been made admitting him
without reservation as u Senator from Kentucky
lie desired to give his for his vote He
quo..d the several clauses of the Constitution
touching the election Of Senator'S and stated the
fscts OF this case. Mr. Clay's resignation tb. ac
ton OF The Legislature, death Of Mr.. Clay appoint
| ment Of MIR. MERiwETHER by the Gov ernor &c
to bold his seat till the first Monday in September
nj pIrp rum