Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1853-04-30

temporary PVWer Oh given 10
Their branch Of the GOVERNMENT and this power is not
therefore be considered much taken from them
or exception from their grant, but auxiliary
power to be used in subordinaton to theirs when they
cannot act The grant of power to the Legislatures Of
eectng Senators being general FULL and
may be assumed postulate that, q consequence
they have the power fill all vacancies whether existing
Prsecve; provided in reference to the latter, that
their occurrence is legally certain fixed and determn
say legally certain, because do wish to be
understood asserting that Legislature provide in
advance for the probable occurring of Vacancy one
that may or may not happen by death or resignation
There must be legal eertaintya termination Of the
period of service either by operation Of law by the
executed irrevocabe act Of the incumbent himself
When this legal certainty exists, whether present.
Suro the Legislature act whether the vacancy
ours during the session in the and for this
very obvious reason that the emergency has not arisen in
which the extraordinary power of appointment is thrown
upon the Governor An unanticipated vacancy has not
occurred rather happened in the language of the
constitution, and before SEEM il is only such hap
penng that he is authorized to act To borrow legal
phrase the jurisdiction of State Legislatures the APP
pointmen Of Senators in Congress is general and they
may do every thing within the limits of the constitution
that is eectuate the intentions Of that in
strument that is not specially prohibited to them where
the jurisdiction of the State Executives over this sub
jectmatters special and limited and they do nothing
they not specifically empowered to do The of
power in the Legislature to act in the Of vacancy
specified in the constitution is not the want of power
not granted, but simply inability to act arising from
the fact of its not being in session When in session its
power is resumed and is general comprehensive, and
complete.
1t is not necessary then to examine and see whether
in this CASE the Legislature of Kentucky specifically
by the Constitution to do has done but
having seen that its jurisdiction the subject is gene
rel the burden the shoulders of others to prove that
its action in the premises is expressly forbidden pro-
hibted by the Constitution.
Applying these general principles to the question at
issue, appears be easy of solution. Mr. Clay
resigned his seat in this body in December 1851 while
the Legislature of Kentucky in sesson-his resgna-
ton to take effect in September following Could he do
this Had he the power thus to fix IN future the period
of his services !? As have had occasion before to
mark this point is too well settled both by precedent
and practice to admit of further controversy. 1t
settled by this body in the of Jesse Bedsoe cited
the other day by the Senator from Tennessee JONES
This body then determined that resignation to take effect
in future was act executed and rrevocabe and that
when the period arrived the resigning member
longer entitled to his seat The honorable Senator from
Georgia Mr CHARLroN holds his seat the incumbent
of vacancy occasoned in the same way, his appoint
ment having been made in advance, and while Judge
Berrien dschargng his functions Of Senator upon
this floor Mr. Clays action them being legal and the
vacancy to be occasioned by that action being fixed
TAIN and rrevocable the Legislature by virtue of its
general jurisdiction had right to provide for it. The
of the Constitution in comforting the power of
pointment the Governor to provide for unexpected
emergencies not existing the power of the Legislature
was in full force, and was very properly exercised.
If am not mistaken, in the of Lanman the de-
cison of the Senate refusing him his seat was based
part if not in whole, upon this very groundthat
cancy occasoned by the legal expiration of time though
it in Of the Legislature, is not such
cancy the Executive can fll-and why? Because it
does not, in the language of the Constitution, happen
the event is fixed and determined by law and can
Unexpectedly, at time that be antcipa
ted by preceding Legislature. Such Also the effect
of the decision Of the Senate in the Of Mr. SEWER
Arkansas cited the other day by the Senator from Ken
lucky Although the expiration of his fixed by
of he arcirc
stances Of the the Legislature could have pro-
vded for the vacancy and therefore the appointment Of
the Executive was sustained. Such the case with
the vacancy occasioned by Mr. Cay's resignational-
though the his own the termination put to his
services and Office of Senator just as fixed certain
and determined as the period prescribed by law 1t
anticipated by the Legislature because they had been
officially notified of the fact. 1t not case there
FORE of unforeseen emergency as contemplated by the
Constitution, for Executive action The necessary and
inevitable consequence is then, that the election Of Mr.
Dixon TO fill the vacancy created legitimate
ercise of power, and should now be sustained.
But it is objected that Mr. Cays death in June pre-
vented the vacancy IN September from occurring and
that therefore the contingency happened which
Mr.. Dixons election depended To this it may be
piled that if the election Of Mr. Dixon valid and legal
at the time it had nothing that could place
MISUNDERSTANDING post acto-could render it null
and void An election, made confers q vested
right upon the officer elected the honors and emou-
ments of the oice-arght which be Invested
less by his act the abolition cessation Of the
Office But il not necessary inquire whether the
cancy occasoned by the resignation Of Mr. Clay occurred
or not. That resignation fixed period term to the
office of Senator as pertaining to hma period fixed
and determined as if 1t had been prescribed by awand
this period certainly did arrive whether Mr. Clay lived to
see it or not.
The Senatorial Office is continuous and intended to be
perpetual is however, divided into periods or terms
beyond which incumbent cannot hold These periods
or terms are again. by legal permission, frequently sub
divided by designations; and election in advance Of
and TO provide for of these subdivisions the
else Of the power and is subjected the legal
incidents is election for the constitutional term
When Mr.. Clay died. therefore, there vacancy in
his term occasoned to be occasoned by his resgna
on because it had been provided for by the election Of
Mr. Dixon. His death, however, did create vacancy
but only for the time intervening between his death and
the commencement Of Mr.. Dixon's term or, in other
words for the balance Of his (Mr. Clay's term that
term, by Mr. Clays own act extending only to the first
Monday Of September The case in principle is pre-
cisey the IL the other Senator from Kentucky
Mr. USDERwooD whose term of service expires the 4th
of March next and whose successor has been elected
were now to resign The Executive of Kea.acky could
fill the vacancy until the arrival of the time when that
is entitled to take his seat and longer In
this view Of the case think the Governor Kentucky
was perfectly right in limiting the commission Of Mr.
Meriwether he has DONE Now, the remainder of a
may be Of sorsone being until the expiration
of the fixed by the Constitution the other to the
expiration Of the term fixed by the partys act of
resignation. Then what the remainder Of Mr.. Clays
term the time Of his DEATH Until the first Monday Of
September unquestionably After that time il was no
longer his term becausehe had resigned it, yielded it up
into the hands Of those who had conferred it upon him
From that time until 1t expired by legal limitation it
Mr. Dixons having been conferred upon him by the pri-
mary appointing power. Mr.. Merwether, then, has
served out-has exhaustedthe remainder of Mr. Clays
term, exactly what he commissioned to do by the
= Al Il. L.