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

: occurred under Mr. Clays resignation. The election
by the Legislature Of Kentucky, in anticipation
= an event which might happen or which might neve
!, occur, and which in this case never did occur TIL,
seat was not vacant at the time Mr. Dixon elect
ed No one can pretend that il was. Mr. Clay wa.
here as member of this body, enjoying all the rights
!, and emoluments of the office Of Senator, and au
thorzed to exercise all the powers and functions ap
pertaining the station lie received his pay and drew
il in person for six months after the date of his resgna
ton and the election of Mr. Dixon. have here the list
of dates at which Mr.. Clay drew his pay member OF
the Senate They follows: On the 18th day Of
December day after the date of his letter of Pesgna
tom the 2ls of January the 18th of February the
18th of March, the 9th of April the 9th of April and
the 18th Of June, two three weeks before his death
These facts show that the not vacant but
occupied by Mr.. Clay until the day of his death and
that vacancy did actually until the death of that
distinguished statesman vacancy occurred the 18th
of June by his DEATH and hot by resignation and up
that time there vacancy The Legislature OF Ken
lucky not being in session at the time of that death it
vacancy occurring during the of the Legs
ature and which, according to the very language of the
Constitution, it incumbent upon the Governor fill
by temporary appointment. The language of the Con-
stituton upon this point is clear and explicit II
cances happen by resignation otherwise during the
recess OF the Legislature of any State, the Executive
thereof may make temporary appointments until the
next meeting of the Legislature, which shall then fill
such vacancies" Now, submit whether it the
duty of the Governor of Kentucky, under the Consttu
ton to make temporary appointment in the place of
Mr. Clay, deceased? The Governor had not only the
right to make the appointment, but it his imperative
duty under the Constitution. He did make temporary
appointment, and, If anticipating this very difficulty,
and anxious prejudice the question either way and
pay due respect to the Legislature of Kentucky he
made the appointment in peculiar FORM The words Of
the commission which he gave to Mr., Merwether autho
rzed him to hold the seat to be and act Senator for
the Commonwealth until the time when the resignation
OF the said Henry Clay takes effect" Evidently the
point of time there alluded to by the Governor the
first Monday Of September utnstead of specifying that
ha oh
question open for the decision of the Senate to the du
ration OF the commission to Mr.. Merwether
Mr.. JONES, of Tennessee. Will the Senator from Hi
nois permit me to ask question
Mr.. DOUGLAS. Certainly.
Mr.. JONES. | understand the honorable Senator to
say there was no vacancy created by the resignation
Mr. Clay would like to ask whether in the opinion of
the Senator if Mr. Clay had lived until the first Monday
in September he could have retained his seat as Sena-
tor And if he could not, would like to be informed at
what time he lost the control over his seat.
Mr.. DOUGLAS. shall make only this answer to the
question which the Senator propounds understand
that this body in the of Mr. Bedsoe did decide that
when Senator had resigned, the resignation to take
effect at future day, and when the Legislature had in
terposed and accepted the resignation and filed the place
the resignation could not be withdrawn Whether the
Senate would have made the same decision or not in
case where there had been election am not prepared
to say But there had been an election in this in
stance, the case Of Bledsoe will the question Of
the Senator upon that point In the few remarks which
shall submit de not intend any of
these precedents do intend to occupy the time of
the Senate by attempting to rebut them although may
doubt their vadity but shall simply give the
why do not think they reach this case and the Sena
tor will follow me- he will the reasons why think this
case does not come within the rule established by any
the precedents This case, then, where the Gov
ernor was authorized to make appointment the
having occurred during the recess of the legislature
case where the Governor compelled to appoint
having occurred during the recess The Governor did
appoint The Constitution, which have read fixes the
duration Of the appointment and what is it? Until the
next meeting of the Legislature That period Of duration
having been fixed by the Constitution there no other
power than that instrument which override shorten
that term There is one exception imposed by the Con-
sttuon itself upon that period of duration and that
exception is this if in the mean time the Senatorial
term out OF which the vacancy arose. shall expire then
the Governors appointment terminates with that term
on the contrary the Legislature meets before the
piration OF the Senatorial term then the appointment
must continue until the meeting Of the Legislature.
That is the construction which give the Constitu-
ton that the way in which the Constitution reads upon
this point and this brings another point which
this What is the duty of the Legislature when they
meet? The Constitution says the appointment shall
continue until the next meeting of the Legislature, hch
shall then I'LL suehpdcancy" When is the Legislature TO fill
the vacancy At the first meeting Of the Legislature
next tr the Governors appointment not before the
cancy happens. And shall then" the meeting
Of the Legislature after the appointment fill the vacancy
The Constitution therefore, has said, in express terms,
that in where the Governor has right to appoint
and where he does appoint the vacancy shall not be filed
by the Legislature prior the appointment of the Cover
nor, but shall be filed subsequent that appointment
This is the provided for and pointed by the Con-
sttution. Your precedents do apply to it they apply
to only where the resignation took place during
the session. and where there vacancy intervening
by death, otherwise during the If Mr.. Clay
had not died in the recessf he had lived and retained
his seat until the first Monday in September-your pre-
cedents would then have been in point but he having
died in the mean time you have precedents The de-
cson depends upon the plain reading of the clause of the
Constitution which have invited your attention that
clause which provides that in where the vacancy
happens during the of the Legislature the Governor
shall make temporary appointment until the meeting of
the Legislature which shall then fill such vacancy What
vacancy Why the vacancy which happened during the
recess the vacancy which the Governor filled temporal
y appointment up TO the time ofthe meeting Of the Legs
ature the vacancy then remaining from the time of the
meeting OF the Legislature until the end of the Then
what was the extent Of the vacancy in this 1t is from
the period OF time when the election is made by the Lee
gslature until the expiration Of the term for so many
months and many days 1t is not vacancy occurring
year previous II is not vacancy that occurred the
first Monday in September 1852, when the resignation
would have matured if Mr. Clay had lived is not
vacancy occurring by the death Of Mr. Clay; but the
vacancy produced by the death Of Mr. Clay temporarily
filled until the meeting OF the Legislature and filled then
by election from that day until the day on which the
Senatorial term expires.
insist therefore, in the first place that this is case
which has had precedent in the history Of our
Government There is no precedent in point-there is
which be brought to bear upon il to eluci-
date it, The precedents which you have cited do not
reach the case you bound to decide the question
according to the language of the constitution; and that
language is that the Legislature shall elect after the APP
pointment ofnhe Governor made, and not before.
That is all which have to say upon this question
less refer two points which have been drawn
into the discussion without having any appropriate rea
ion IN