The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1854-01-18

Senator from Vermont, (Mr. PHELPs)
himself but, sir, as motion has been
made to refer the question. my respect
for the State of Vermont, my respect
for the commission, as | understand the
gentleman has one, induce me to with
draw any opposition to its going to the
committee. That honorable gentleman
has served upon the Judiciary Commit.
tee, and as far as / can bear testimony,
| have scarcely known one upon the
committee who could examine a ques.
ton with more care and attention, and
upon whose judgement / would sooner
rely than upon his. / therefore desire
to be understood, that my remarks yes
terday were made out of 10 opposition
to him, and with no disposition at ali to
compromit his rights l hope that will
be generally understood.
Mr.. PnELPs. Mr. President, | did
not come prepared this morning to pre-
sent an argument to the Senate upon
this question nor is it my purpose TO
do so now / did desire, however, an
opportunity to explain to the Senate the
motives which induced me to present
myself here, claiming, in behalf Of the
State which ! profess to represent, a
right to a seat in this body. The expla-
nation, however, given by my colleague,
the honorable Senator from that State,
(Mr Foor.) has satisfied me, and |
therefore desire to say no more.
| trust that the Senate will do me the
justice to believe that come here, not
with any personal prctcnsions, but to as
scrt and enforce what ! consider the
constitutional right o.! a sovereign State.
Waving that matter, however, Mr. Pres
idcnt. | am perfectly willing to comply
with the desire expressed by the Sena-
tor from North Carolina. (Mr. BADGEE)
in presenting to the Senate as / think
| can do in very few words, the grounds
upon which my claim to scat here
rests.
am perfectly aware, Mr.. President.
that the general impression is such us
has been expressed by the Senator from
North Carolina but from careful ex-
animation of the phrascology Of the
Constitution--f an examination OF
the prccodents, as far as they have gone
indicating the sense of the Senate from
time to time, | must say it is my dclib
crate opinion that the commission
under which | took my seat here ut the
last session has not yet expired
The expression of the Constitution
under which this appointment was made
is in these words, if recollcct them
rightly: In case of u vacancy. (such a.
occurred by the deccasc Of Mr., Upham
the Executive Of the State is author
lied "to make temporary appointments
until the next meeting Of the l.egisla
turc" Of the Stat, (which shall then fill
such vacancy" The impression tC
which alludc as expressed by the hon
orable Senator from North Carolina, is
that the limitation implied in the words
until the next meeting of the Legisl a
turc," is limitation of the Office or ap
pointmcnt, which therefore terminate
the right of the appointco.
This impression, | aplrehend, is alto
gether erroneous The limitation, il
my judgment applies to the power o
the Executive, the language of the Con
stitution, until the next meeting of tn
Legislature" is peculiarly appropriate.
If am right, sir, in this construction
of the Constitution, in considering tn
limitation as applicable, not to the oflic
created by the appoir.."e!t but TO tn
power which makcs 1t, it will be seen a
once that the prevailing impression W
OF this subject is altogether erroneous
If, however, the other construction L
adopted, the Office terminates. unqnc
tionably, at the moment when the Leg
islature of the State is organized. and
a capacity to act ; but this cohstructio
has been uniformly repudiated.
will not go into a minute examin
tion of the preccdcnts /; but | may a
ludc to what, 50 far as | am acquainto
with the proceedings of this body, is Il
first precedent on the subject 1t WI
the case of Mr. Smith, of Marylan
who held his place here under an a
pointmcnt of the Executive of the Sta
of Maryland The Legislature of NJ
ryland met whilst this body was in sc
sion. The question arose whether Il
meeting of that Legislature did not te
inmate the Office of Mr. Smith as
member of this body. A resolution W
introduced, and carried by a most de-
dcd majority, that the member fro
Q Maryland was entitled 20 retain his SC
t in this body during (such is the Ian
I uagc of the resolution) the session
the Legislature"
. Well, sir, this word "during" is 81
J ceptiblc Of two interpretations the o
$ is to the effect hat the member was {
=, titled to his scat, although the Lcgis
- ture of his State was in session I
: other is, that he was entitled to his 81
until the termination of that session.
o must be apparent to all, that the lot'
j Interpretation could not, with any Fl
priety be given to the resolution,
cause the member was liable to he d
y placed at any moment by the action
J. the Legislature of Maryland The j
C port of the resolution therefore was til
e that he was entitled to retain his Sc
C, Notwithstanding the limitation TO VIII
n | have alluded in the Constitution
the limitation until the next meet
s of the Legislature"
&c Now, sir, from this resolution. | in
~ that my own construction of the Com
re tuition in this particular, is the corr
It one. / believe that in every insta
in in which the subject has been before
'g Senate, this precedent has bcen adhe
IN to- ! am not aware Of any case in VIII
y. a member has been excluded from !
I'd here in consequence of the meeting
as the Legislature of his State.
ed But, sir, when making this assert
Nv il is nroner that [ should remark, I