The daily union., 1852-12-09

thai he has no Tile or lght TO deny H. II would be just
as violent presumption Tor the Senate, on the 4th cay
OF March next, when The other honorable senator liou
Kentucky, Mr. UEDEawooD,l whose time VIII 'hen
have expired and II his should then appear 70
take his seatI say i would be just as violent PIE.
sumption for The Senate 10 refuse 10 admit bs
upon the ground that Mr. Underwood might site, al
come back and claim right 20 OH H. ibis woulu ue
exactly the would be 70 suppose lhat lhe
honorable senator from Kentucky, MIR. Menwelher,
might appear here on the seventh Gay oil December,
1852, take the chair which he was a1ihohzea 70 i
and which he assumed 10 MI only uhi Tue s' uay VI
iorbear from going into the merits of the question
which hes beyond, did yesterday but cannot AVOID
saying that il is question which touches the rights and
interests only of the State OF Kentucky but also the
rights and interests OF all the States There is no claim
upon the part OF Kentucky that this place shall be kep
vacant Kentucky has right TO deny this vacancy and
nobody but Kentucky has right TO deny y. bul now
there is opposing claim, and the state oil kentucky
appears here in the only IN which she can ap-
pear, AMI demands in the person that she has sent
here her representative, that he shall be received
and be allowed take his place Ii you deny 1t upon
the ground you have assumed you may equally IN every
case where senator shall come TO fill vacancy insist
upon i, that you will make him stand outside oi Inc
bar, and that the Stale shall stand outside OF the senate
chamber, until you have canyassed his pretensions
and ascerained whether they final and conclusive
In that way You keep the State OF heniuoky ana
you keep any other States you please, OUT OF e
Senate, and the majority may determine what Stale snail
be admitted settle any desired question: and what States
shall not | rejoice that there nothing IN the circum
stances which wonld give rise 10 The supposiion hal
such purpose is aimed here and tits because
the circumstances prop,ous 10 have ihis case de-
cded upon Is mer,s without political bias upon The
part OF the Senate, do most sincerely hope there
may he no departure now from what has been the Gus
tomary practice, and that this honorable senator may be
allowed take his seat and then, II 1t becomes neces-
saTy 10 investigate The nature ana gtounos oi hs u,e-
but which does appear necessary mewe shall do
il af'eru ards has always been done IN such cases
heretofore.
from Nouh Carolina Mr. MAkGuml proposes the adms-
sion OF the claimant 10 seat po ~ the decision OF Inc
question OF right There seems 10 De IN this case seri-
objection TO this arising IRON the iact iha Ia
the The Senate should determine that ne was Eol
entitled TO the seat, there would, Tor the lime being be
three persons who would have the Senate from
the State oil Kentucky al the same time. Ihis anomaly
would require TO determine the question OF
right before admit to the seat II is constitutional
question that arises and will not admit OF being changed
by courtesy
The honorable senator from New York remarked tina,
hlsis question touching the rights and interests OF the
sovereign State OF kentucky II appears TO me that The
true question is nhtnr NE legislature Of State has
rghio elect senator 10 fill contemplated raeaney 10
hoppen during recess Of me tegtdalws, pror 10 me
time trLen such uacaney shall hlppen. When dld the
vacancy arise in THIS ca,e The resignation did moi
create vacancy until il took effect. IL Will not be con-
lion until The time when Mr. Clay ceased 10 fill IT, The
resignation made IN December, TO lake effect IN fmuTo,
did not leave that seat vacant until the hrsf MoRua5 ol
September The legislature had adjourned prior TO iha,
time The question then arisesii indeed II arises TO
question-was this mol a vacancy which, IN the Ian
euage oihe constitution, happened during te recess OF
that lit II arose during such recess.
Ii this, the constitution PTescrioes a
mode by which such vacancies shall be hed The Ian
gusge OF the constitution would seem TO he TOO PLAIN and
explicit upon this point 10 aemit OF doubt. Ii declares
that f vacancies happen by resignation or otherwise,
during The o the legislature o any State The ex
ecutive thereof may make temporary appointments unti
the meeting oil the legislature, which shall then MI
such vacancies" In The FIRST place, the constitution de-
wolves upon the executive the power 10 fill such vacnacy
But in this case taid the legislature undertook
fill it. The legislature is authorized IN one contingency,
10 fill a vacancy happening during recess; but Uhen
Can The Legislature under The constitution, h The va
cancy in advance OF the time when il happens Has the
power of filling il in adrance been conferred by The con-
stituon' The consultation prescfIbes that the execu
tive "may make Temporary appointments uniil The next
meeting OF the Legislature, which shall then NIL such va
cances" So that neither the executive nor the iegisla
authorized BY the constitution. il would seem, 10
fill a vacancy happening during OF the leglsla
ure until oJr the vacancy shall happen; and therefore,
il this vacancy arising during the recess, and one
that the legislature might 6ll, it must be al meeting
subsequent to happening OF the vacancy But the
face OF these CREDENTIALS appears that the legislature o
Kentucky undertook TO I'LL the vacancy IN advance, so
that the question presented upon the face OF the
denlias; and TO inquire whether The legislature
OF Kentucky has followed the authority conferred by the
constitution. have felt called upon TO say this much IN
reply TO suggestions thrown out by the honorable sena
from Tennessee and the honorable senator from New
York. who have gone AT length into the discussion OF
the general question, lest il should be supposed Their
views assented 10 correct aud unanswerable.
Bat when did the vacancy inqueston tTst occur Did
il in fact happen the hrs day OF September! The
death 0f henfy Iiay nepOreu Dy te WHoe haNoH, OC.
CURED the 29h Of June last and that death created
vacancy which may be regarded covering the whole
unexpired term OF Mr. Clay. Can that vacancy which
first occurred be divided and cut up into parts except
far the constitution prescTbes The executive can
ill that part OF which occurs before the rs meeting OF
the legislature but can he divide such portion INTO parts
II is there anything 10 prevent bis appointing new
senator for each day u the period he i authorized 10 NIL
Has he any other authority than 10 m the vacancy, with.
out imposing other limitations than those prescribed By
the charter under which he acts
IL would seem, then, that two difficulties are present.
ed first, whether this not OF those vacancies
vacancy 10 be filled by the executive, whether
il was not that be filled by the legislature sub
sequent TO The lime when il happened And IL makes
difference in my mind whether there is or is not any
present claim the seat The question is whether the
legislature OF Kentucky at the time II undertook TO make
this election possessed that power II has already been
decided in one case-the case OF Mr.. Lanman, who
claimed senator from Connecticut under txecu
tive appoinmenl-that The executive has authority TO
make an appointment 10 I'LL a vacancy prior 10 the lime
such vacancy has actually arisen II remains TO be de-
iermined whether the legislature possess such power
Story, in his Commentaries upon the Constitution, page
2o4, adver,s 10 this subject, aud says:
.There seem 10 have been presented for
the Consideration Of tho convenuop-cheT 20 leave the
vacancies nnhrd unit the meeting ol The STATE legisls
ture or allow hc State sgisstnf- provide their
pleasure pospecvey e., their 70 conhde
temporary appointment some select state ianctonay Or
body"
II would seem, therefore, that the great question s,
whether the constitution conferred upon the Legislature
authority 10 I'll Tins vacancy IN advancel IL ls unlike
the OF eeciing 10 MI term which is 10
commence al future day for In such the
So Alor