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

listed until the time when il did take effect! Sir. agree
entirely with what said by the honorable senator
from Illinois lsr DouoLAsl that there vacancy
unnl the time arrived and whether that resignation
should ever create vacancy not event purely
contingent, Why, sir, there be two vacancies exist
ing at the same time Is il not an absurdity upon It's
face utterly rreconcabe with language that there can
be two vacancies existing al the time IN the
term And yet gentlemen driven TO that IN order TO
MAINTAIN that vacancy occurred al the time MIR Clay
rendered hia resgnationthat vacancy created by
his resignation, and that another vacancy afterwards
created BY his deaihtwo vacancies existing at the same
time
Now sir, in another point Of view have heard hon
orabe senators say that the Office OF SENATOR like any
other ohce is IN the property OF the holder
And they have illustrated tins, think done by
The honorable senator from South Carolina MIR BUT
LER,l by this question sis IL not competent for
or % surrender portion Of his term and to reserve to
! Mr. BU UTLER. Ii my friend from Virginia Mr.. Ma
SOM will permit me to correct him, will say that |
did make few remarks upon this question when il was
up for consideration the other day But perhaps he has
imputed language TO me which he might have heard me
say out OF the Senate instead OF that which used in the
ton AS chairman Of the Committee on the Judiciary.
should very much dislike to have this subject referred
TO that committee after what has been said and is
privileged question, in which Mr. Dixon, Mr.. Meriweth-
e and the State OF Kentucky all deeply interested
would suggest that il would be better TO settle it at
II this is the general understanding, will submit my
marks to the Senate and in doing will endeavor to
put my propositions in clear light that there shall be
no Misrepresentation.
| Mr. MASUN resumed l perfectly Sasfed 10
have the taken, and 10 settle the question at once,
although should have preferred that il should 60 to
committee. That is matter in which my own judgment
may be right or wrong Perhaps ascribed to the hon
which fell from some other senators but certainly did
hear that used by way Of illustration. II was asked
whether it not competent for surrender
portion of his term, and TO the rest and whether
what he thus reserved would not be far his at least
as that he might surrender that reserve it at his
pie asaTe Now, sir, look upon this Office of senator,
dT ri n hQr n n
office is tfus emphacally trust and nothing but a
pure trust, which the officer may discharge not at his
pleasure but he must do one thing the other. He
must either fulfil the trust and discharge the office. he
must resign il, and place II in the power OF the cons
uen body 10 substitute some other officer. III he can
surrender part and the rest treating il prop
ery rather than as trust, as honorable senators
10 argue, he parcel 1t out at his pleasure and not al
the pleasure Of the constituent body under the consitu-
tion. Clearly, il II competent for Mr. Clay Tor
any other senator resign his Office to lake effect nine
months after that date, he might have made another re-
sgnaton TO take effect IN eight months another IN seven
months and others take effect in six five, four, three,
and two months and what he had reserved, according
to that argument would be entirely unmpaired by what
he had parted with. So that he would have power TO
parcel his term, and let many different senators
take the the constituent body chose send
am perfectly aware that il has been the practice OF
the government not only in the Senate, but in other de-
partmens, 10 permit prospective designations have al
ways considered them designations in present., TO ope
in futtro and to be nchoae until ney did operate
TO have effect whatever esignations except to bind
the paIes who should make them, that they could not
relract them, but 10 have effect resgaaiions until
the period arrived for their taking effect They are
yenient, TO say the least There is propriey-
do not mean individual poPretybut there is no legal or
constitutional propriety in their being made They may
and then be made with view 10 convenience in the
appointing power, order that there may not be
momeniary vacancy in the seat, but conjecture
great practical inconveniences which might ensue from
the indulgence OF that practice However, whether they
to be made not, now, for the first time,
clearly informed by the accidental death OF the gentle
man who made the resignation, that IT they permit
ted this practical Inconvenience will result, that you
Will have two vacancies existing IN the same term at the
same time.
Sir, am constrained TO look at this question judicial
ly, and in no other light. have no guide but the
stitution. | know that this vacancy occurred "dunng
the Of the legislature OF Kentucky know that
the governor OF that State commissioned senator, who
occupied the seat during the last session know that
that seat has never been resigned by him. And what
further do know know, both by the letter and by
the spirit OF the constitution that when The governor OF
Kentucky issued that commission he discharged The
whole function that was devoved on him by the consti-
tuition He could do more than make The appoint
ment, and how long that appointment should last
matter dependent upon the constitution, and sense
dependent upon him 1T, then, he undertook do more
either advisejly unadvisedyf when he issued the
commission he attempted 10 withdraw from the opera
ton OF the constitution as TO s duraton and TO prescribe
10 shorter term-I submit that what he did mere
y void and so lar AS the commission curtaed il
was TO that extent surplusage
II was in that light, know, that looked upon il
when the question was raised here by the senator from
illinois, other senator al the time the incumbent,
as now treat Inn, took his seat III said that the
commission OF novel character; that it prescribed
the duration OF the Office OF The appontee under it, and
that The question should be raised al whether a
ator soud take his seat under commission so woTded
According to my recollection said nothing; hut re-
member distinctly my own judgment that il the
mission was issued IN pursuance OF the constitution for
the purpose OF filling the vacancy, il did 6 the vacancy
and that whatever else 1t contained surpusage
still look at II in that light. cannot consider that
there any existing vacancy in the representation in this
body from the State of Kentucky. If that be the fact
thp Of he
OF Kentucky, what it has done also surpusage and is
therefore void,
But what disrespeet be construed toward the legisa-
ture the people oil Kentucky in ng this decision
Had we not had instance from the Stale OF Illinois with
IN the last three or four years senator sent here
from that State who 10 have been Ineligible
the time he elected BY the Legislature and when he
came here obliged 10 pass upon the act oil the e
gslaure and declare ii null The time that elapsed, how.
dered the party who had been thus here senator
eligible. and he was again retained by the legislature.
There was no dsrespeot 10 the legislature TO him in
sending him back There entertained and none
fet so II 10 IA this instance in reference TO the leglsa
ture OF Kentucky. II the constitution has not authorized
that legislature TO do what II has DONE is duty
decide. feel II to be mine, and shall perform it
Mr.. UNDERWOOD. | rise, not Tor the purpose OF
making an Argument, bat TO make an explanation. did
taken his seat have understood me, that there
was total and absolute vacancy in the whole term from
the resignation OF Mr.. Clay in December last up to the
80 oil March, 1855. On the contrary, coniended that
there such thing but did contend that Mr. Clay,
having the right by resignation to dvide the term and
to surrender that portion OF which remained from aad
alter The hrst Monday OF Sepember the portion thus