Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1853-04-23

hed the vacancy. The power OF the Governor OF the
state OF Georgia and the OF the Legislature OF the
State Of Kentucky depend upon the Constitution of the
United States and the power of both is to be found in
the same clause. When did my late distinguished col
league resgnl He resigned in the month of April last
but his resignation to take effect the first of June
The Senator from Maine (Mr BRADBURY says Govern
or cannot appoint until vacancy has actually occurred
and he to draw from hence the conclusion that the
Legislature IN like manner cannot appoint until the
cancy has actually occurred Is that true Where is
the article of the Constitution preventing ito Where is
the opinion of single distinguished jurst constitu-
tona lawyer the foundation of the to
the present hour denying the power to the Governor
to the LEGISLATURE Nowhere My present colleague
was appointed on the 18th day of May his appointment
to take effect from the first of June. Why he ap
pointed in that way? In order that he the successor
Of Judge Berren, might be here the first day June
Judge Berren vacated the in order that
the State of Georgia. under the Constitutionwhich
emplaed that each State should uniformly and steadily
have two Senators in this bodymight be fully repre-
sented. That is the reason of it.
Why let me suggest case to the Senator from Cali
orna. Suppose he desired to resign tomorrow but did
not wish deprive his State Of two Senators upon
floor; if the Governor of California could not appoint
until after the day of the resignation it would be proba
bly, two months before there would be here
to take the seat Did the Constitution of the United
States ever contemplate that man must resign
particular day. and that the very day he resigns he must
leave the seat and thereby leave place in the
Senate of the United States? Under such state of
things the distant State from the seat of Co.
venment, the longer vacancy would exist From the
foundation OF the Government the practice has been diff
erent In 1885, in the of Bledsoe, the Senate de-
cided by solemn vote Of q to 6, that Senator had
right to resign in anticipation. And what the prin
cpe of that case Look back at the Debates and you
will find that the idea this; the resignation might
be made to take effect by given day. thatn the
time the elective the appointing power should have
an opportunity of appointing to be in the
Senate to fill the seat at the time the vacancy should
tualy occur
My friend from South Carolina SAYS that he has now
RI Ia pTno f,,-I
tuo Ii he may resign to take effect taro it is for
the purpose of enabling the appointing power to fill the
vacancy in anticipation Of the day upon which the resig
nation is to take absolute effect; and in his language
the resignation is deed executed and the person who
has the right under that deed either to fill the
to designate who is to take possession Of the property
can fill it in anticipation and when he comes here with
the deed made out in anticipation, and presents it the
proper day. it takes instantaneous effect and the party
holding it is entitled to be admitted to the And it
is right that it should be Now, if it be true that Mr.
Clay had right to resign in anticipation the elective
power had right to fill the vacancy in anticipation
The Legislature of Kentucky being then in session. elect
ed the present applicant the Hon. Mr. Dixon to take
the seat under the precise power under which the Gov
ernor of Georgia appointed my present colleague.
wish it to be understood that do not say all this is
right. The decision of 1915 may have been wrong, and
the subsequent practice may have been wrong all say
is that if this has been admitted by Congresf
it has been acquesced in by the States and become the
practice of the Government here and the practice Of the
of the States when this gentleman presents
himself here it is but courteous to the Stae-it is but
pursuing the uniform course to permit him to take his
seat upon the prma facie And why Because the
State is entitled to two Senator's and he makes out
prna aee case Such has been the reason for the pac
ce heretofore 1t has always been thought desirable to
keep the Senate full Why shall we now object to the
ordinary being pursued?
l hold in my hand the credentials of my colleague
They dated the 18th day of May last and they
authorize him to take his seat the first day of June in
place Of Judge Berren and if he had been here the
last day of May sitting behind Judge Berren, he would
have had right to step in the next morning and take
seat in his place. But, sir what does all this prove
That the Governor of Georgia and the State of Georgia
believed that Mr. Berrien had the right resign in anti
cipaton
Moreover it is said that the certificate is null and void
unless states in the words of the constitution that the
appointee is to held until the nneetag Legis
lature Why, the certificate of my colleague-whch is
parchment and in form coeva with the existence of
Georgia a State of this Unon-s not that his term
shall be until the next meeting of the Legislature" but
that shall be till the Sd day of March next Why was
this! Because before the resignation of Judge Berren
in anticipation OF the vacancy which would after
the Sd Of March, 1853 the Legislature in the latter end Of
1851, bad elected Robert Toombs fill the term COM
mencing from and after the Sd OF March next Judge
Berrien resgning in the time my colleague comes
in to fill the vacancy thus exsting which is a vacancy
precisely similar to that created by the death Of Mr. Clay
Here two precisely analogous. Was there any
law violated was there any precedent violated by allow
ing my colleague to take and hold his seat under these
circumstances Not at all When he came here had
the honor of presenting his credentials and did it with
very great pleasure. They read to the Senate Did
anybody object TO their nformaty because they stated
that he appointed until the Sd of March next instead
of until the next meeting Of the legislature Not at all
But he took his seat and for what reason Because the
broad seal Of Georgia prima fcie evidence emitting
him to do Could not Mr. Toombs have come and con-
tested his seatH Could not any body have come and
contested his seat Certainly they could If they had any
ground to do so.
How does the honorable Mr. Dixon come here With |
commission stating that he has been elected Senator in
the Congress Of the United States by the Legislature
the State Of Kentucky to hold from and after the
Monday in September 1852 What Is the effect of that
certificate Certainly is the highest evidence that the
Legislature Of Kentucky has done the deed and the ques
ton is whether under the constitution they had the
power do it? There is doubt Of the power and the
presumption IS that they have exercised 1t correctly III
these Prescriptions in his favor he entitled by
courtesy to take the oath But these prescriptions may
be all set aside by somebody coming in and contesng
and alleging that he constitutonaly eectedthat
the Legislature not the proper body and that had
mot the power to elect but is there any suggestion Of that
kndG And IL there were such suggestions, what
would courtesy demand Of us Should not do pre-
csey what done in the Of Robbins and Potter
claiming seats as Senator's from Rhode Isandf That diff
Guilty occurred in this way There was Wing Legisla
ture, and they elected Mr. Robbins Senator Before
Congress met the Legislature was called together again
There was change In its political character and at this
session Mr. Potter elected Both OF them came here
with the broad seal Of the State Mr. Robbins was first
elected and his credentials presented What did the
Senate do then? Mr. Robbins was the first man elected
and his credentials showed 1t and out Of courtesy to the
State and in obedience to what was due to its sovereign
power, the Senate said the credentials of Mr. Robbins
show prima facie case and will admit him TO his
seat; afterwards refer the matter to n committee
to investigate whether any thing unconstitutional
and we can then, If find il proper, deny Mr. Robbins
the seat and give to Mr. Potter There is no contest
Of a.. - .l.nI