Semi-weekly North-Carolina standard. [volume] (Raleigh, N.C.) 1852-1853, 1853-01-19

individual legislatures which passed unanimously
The was again passed. Juae 25ih, 1877: The
committee of detail, page 207 provided IN their re-
port according to the foregoing resolution. In the
draughi reported August 6th 1857, page 2i7, 1t was
provided The Senate of the United States shall be
chosen the Legislatures of the several States Each
Legislature shall choose two members. Vacancies
may be supplied by the Executive until the next
meeting of the Legislature" Page 2S7 it was pro-
posed 10 alter this clause as to read as follows:
Vacancies happening by refusas 10 accept, reslgna-
ton or otherwise, may be supplied By the Legislature
of the State in the representation OF which such va
cancies shall happen. or by the Executive thereon
until the next meeting of the Legislature, which
passed. In the final draught OF the Constitution
page 1853 it reads: .'And if vacancies happen by
ignarion otherwise during The recess Of the Leg
islaue of any State the Executive thereof may make
temporary appointments until the next meeting OF the
Legislature" At page 378 find it was finally
amended by adding " which shall then fill such va
cancies,' implying thereby doubt whether the
right and obligation of the Legislatures to do would
have been clear without this amendment.
From all this it is very plain that the Convention
anxious 10 provide in all cases for representation
and in this final clause imposed it imperatvely as
duty upon the Legislature coming into session after
vacancy, Immediately fill it. Shall then, that ls
at its rext meeting, fill such vacancy. What vacan-
cy! That which had occurred during its recess
They are not enjoined to fill it before it happens,
whether foreseen not, but they enjoned to do
it the meeting after it happens.
IT is urged, however, that if the Legislature had
the power of foreseeng the vacancy, and therefore
the power of filling it, that the right of the Executive
is gone, that the power of the Legislature is general
and that of the Executive is special 1t is admitted
that the power of the Executive is limited to single
case, but that power is coextensive with that case,
and We can other Limitation upon 1t and IN
deed may and shall synonymous in such cases,
the Executive ia bound to exercise the poweras
the case occurs. AS both the general and the special
power derived from the source, 1t is not seen
why that source is efectual TO communicate
power in the in the ether. In this mat
both he State and he EYeCu-
tives trustees, and if does not fulfill the trust
which the other may and does, it is not how any
cashing of power takes place.
The two questions, therefore, come back upon us
first is the Legislature bound to exercise the power
of appointment, oreseeng vacancy before it occurs
and secondly, will its foreseeing it, whether II
makes the appointment not, deprive the Executive
of the right and duty of doing in the face Of the
very words of the Constitution!
Upon the first question, what imposes upon the
Legislature the duty Of foreseeng vacancy and pro-
Viding for it? Take this supposed obligation in an
unqualified extent, and it would nave required of the
first Legislature that met in North Carolina after the
adoption of the federal constitution foresee all the
regular vacancies that would happen in the
Senatorial representation Of the State for least that
generation, II not tor all time And what quahes this
obligation, or limits it 10 the vacancy that will
occur? Or supposing it to be limited to the next
vacancy, what prevents it from requiring the very
Legislature that makes appointment to toresee its
regular termination and provide for it And why is
il much the duty of any Legislature preceding
the oreseen vacancy as The one Immediately preceding
it provide for it See what clashng of power
here brought about and it be that the trainers
Of the Constitution intended purposey place this
element of political corruption. this subject for party
scramble and management, In the very heart OF the
Constitution
But it is said practice has leg1lized the appoint
mcnt of Senators by that Legislature which msdi-
atey proceeds the hap enng of regular expiration
of Senatorial term. Practice never put feat
into the Constitution which not there before
s,ituton is doubtful. furnish evidence o: It's true
Interpretation, but it never be of when the
language of the Constitution is plain. The bod
W itch makes practice make another; and
thus if we were governed by practice should be
no better of than those nations, who, having writ
ten Constitution, only know what their Constitution is
from practice and precedent.
The truth is, the filling of vacancy in tbs Senate
of the United States by the Legislature of State.
before II happens, however clearly oressen could
never have been tolerated, and would have long ago
been resisted act of high handed usurpation,
had not been for ths first section Of the 4th article
of the Constitution, which is in these words {" The |
times places and manner of the election of Senators
and Representatives shall he prescribed in each State
by the Legislature; but Congress may al any time, |
by law make alter such regulations. except the
places Of choosing Senator'S" 1t is from this clause
Of the Constitution that the Legislatures Of the States
derive their whole power real or supposed, of anci
patIng vacancies. Whether it is sufficient 10 author
lZe the Legislatures TO anticipate and fill
Them, and thereby take from the Executives the pow
or of filling them, under the very circumstances I'M
der which the Constitution has conferred tupon hem
admits of some question; but it has long been
luiesced in, that the Legislatures may pass general
avs declaring that Senator should be elected by
The Legislature next preceding this expiration of a
Senatorial term, at such other times they ElaY
choose to Designate subject, however, to the overIu
ing legislation Of Congress. And that, as the Legis
atures may pass general law, therefore, when they
elect Senator at particular time it is pro h1c vce
IN exercise of this general power But Intellectual
attempt to do more be said to be an exercise
IF that power pro hac rice than would the introduce
ion of general bill to fix the time of eecting SEN
ltors, which did not pass, be full exercise of tn
power of fixing such time.
Upon the second question, it is admitted tina It
i the Legislature had made appointment of SEN
ltor, by general law had fixed time of appoint
nent preceding the regular expiration of the Senate
al term, it might plausibly have been commended
hat upon the of such vacancy, the Exec
tive power to fill it would not have existed. The
ormer case we think, would present question of no
title difficulty but that in the latter, the Executive
power had not been superseded.
But, however this may be, the Legislature in the
Ease before has made neither full partial ex-
'rcse gifts power. 1t did attempt elect Senator
tut did it; and therefore did not exert its
power specially. And it has exerted it generally
For the only Legislation this subject is be found
n the Revised Statutes chap. u, lst and is in
hese words: Be it enacted that the Legislature of
he State shall, whenever Senator Senators in the
congress of the nited Staies is to be chosen
It such time during their session. they shall ap
'on elect by joint vote of both Houses of the Gener-
Assembly, the vote being uiUa UOce, such Senator