Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-01-24


priety or necessity of doing so to the discretion
and decision of the State ITSELF If they acted
and hied the vacancy, no injury could result
from having only one representative if they
did not act, then the State would remain with
one senator-which, however, was a matter for
the consideration of the State alone. The wise
men who formed the Constitution knew full
well that the interest of each State to maintain
its full representation in such body as the
senate would be an ample security against
the abuse of the trust, and therefore safe in the
hands ofthe State governments. The fact, then,
Of the States having only one representative in
the Senate, cannot be permitted to influence
the decision of that body in case like the pre-
sent And here it may be said that the cotem-
poraneous history of the Constitutiongiyes force
to such construction of this provision Of it
as | now maintain. There were few parts, if
any, of the proposed plan of government more
strongly objected to than that which related to
the Senate, its mode of appointment, and tenure
of Office of its members.
Their appointment even, by the State legis
lature, was strongly opposed, upon the ground
that, by forbearing to make appointments of
senator's, as they might do, they could destroy
the national government. This was admitted
by Its friends to be an evil in the plan; but it
was one which could not be avoided without
excluding the State governments from their
place IN the formation of any national govern
ment, and an entire abandonment of the federal
principle and would, moreover, have deprived
the State sorereignties Of one Of the great safe
guards intended to be provided in any plan
that might be adopted. The bare idea Of an
appointment Of senators by the executive of
State would have been ridiculed and secuted.
Indeed, one Of the strong objections to the
Senate's having anything to do with their own
appointments was, that It was too independent
and aristocratic a body, and needed only one
other Ingredient power Of filing up its own
yacancy-to make it dangerous to the liberties
Of the country. Now, the present case, if sane
toned, would be an ingenious mode of attain,
ing Ito limited extent) such power, by
means Of construction and implication. beg,
therefore, to repeat that this clause, confirm
ing the temporary appointment Of senator of
the United States upon the governor of State,
(which, in passing, will say is rarely, if ever,
confirmed by the legislature ought to be con-
strued strictly and rigidly, instead Of being en-
larged and extended.
With the motives and causes which influenced
the Legislature of Vermont to adjourn without
filling the vacancy occasioned by Mr.. Upham's
death, the Senate can have nothing to do, in
deciding upon Mr.. Phelps's claim. 1t is not
their province to enter (if they had the means
OF doing SO, which presume they have not)
into the political or party feuds Of any State,
always productive of more mischiefthan good
but to leave it to the States to settle and adj
just their own difficulties amongst themselves
and if the result should be to deprive them Of a
portion Of their representation in the Senate,
that is matter with which the Senate Of the
United States have nothing to do, and cannot
be called upon to remedy, especially by per-
hitting an individual to continue to represent
q State in such a body as the Senate, who was
certainly not its choice, and for whom, possibly,
not one member of the legislature had voted
Certain it is that Mr.. Phelps was not its choice,
or he would have been elected but, rather
than elect him or any one else, they preferred
that Vermont should 60 unrepresented Whether
they would have made an appointment if they
had supposed that by not doing SO Mr.. Phelps
would have been allowed to take his seat under
the executive appointment, might be matter of
conjecture; but cannot and ought not, to enter
into the decision of this important constitu-
tional question. Nor do mean to be under
stood as expressing any opinion as to the views
or intentions of the members Of the Vermont
legislature in regard to Mr.. Phelps. Decency
and propriety forbid it.
/ have no scruples, however, in asserting, as
my opinion, that the only true and safe con-
struction Of the Constitution is to regard the
temporary appointment by the executive as
ceasing at the meeting of the legislature ac-
Inaliy IN session; and, if no appointment
be made by them, to leave the consequences
with the State, where the Constitution intended
It should rest for good or evil. Indeed, the
Senate have no discretion in this matter. /
enter my protest against the right of the Senate
o set aside the plain words Of the Constitution,
BY deciding what 'cas meant and intended by
ts trainers To dothis would destroy not only
he compact itself, but would be dangerous to
liberty. To vest such powers in Judge, has
Always been regarded with jealousy and dis
rust in oil free governments. 1t was Lord
Camden ian ornament not only to his profess
ZION, but to his country and human nature)
Who said that discretion in judges was the law
IF tyrants; that it was always unknown, was
casual and too often depending upon consti-
ution, temper, and habit--in the best, ca
,rice; in the scorst, every vice, folly, and pas
ion to which human nature was liable. To
prevent oil this was the object of written
Constitution. So much for the argument Of
his case.
1t may be proper, in conclusion, and lust to
myself, to say, that Of the high character and
landing OF Mr.. Phelps beg to be understood
% N.Y. wishing VI IHtciulIlS 10 express mo-
nentary doubt; on the contrary, am free to
. full justice to tho motives that have in
uenced him in taking the course he has
dopted, and believe that he has been governed
Y what he regards as the constitutional rights
+ his State, apart from all personal consdera-
ions; but yet regarding it in light wholly
ifferent from that in which he has presented
! and as it may form a precedent hereafter
fecting. other States Of the Union, and be-
ewing that there is contagion in the force of
II precedents which few men have sufficient
,rce Of mind to resist, especially in large de-
berate and political bodies, and regarding,
borrower, all precedents upon constitutional
uestions as dangerous in a government like
urs, must enter my protest, rs an American
tizen and an old national State-rights demo
rat against the establishment Of precedent
hich is to be in some sort testimentary, and
GREATER to bind the Senate in its course of ac-
on in cases of a similar character.
VIRGINIUS.