The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-01-28


90 into executive session wish the resolution taken
up now, II II is 10 be taken up to-day do not
much whether II be taken up or postponed
The Senate then proceeded 10 the consideration OF the
special oIder-beng the resolution reported the 10Th
Instant, from the Committee the Judiciary, TO whom
was referred on the ah nsan, the following preamble
aud resolution:
Whereas the Hon SAMUEL s PsslYs was appointed by
his exceiency the Governor Of Vermont, the
the legislature of that Stae fill vacancy In the Senate
OF the United States, which happened by The death OF
Hon William Uphan u senator whose term OF six years
would have continued until the 4th OF March, 1856 ard
whereas is understood thar since that temporary APP
poinnen, made, the legislature OF Vermont has been
convened al ITS regular session. aud has adjourned without
ailll suon vacancy Therefore.
Rsoipsd. That Committee on the Judiciary inquire
whether the Hon SAMUEL . PHgIPs Is entitled TO retain
his seat In the Senate oi the United States.
The committee, by majority, consisting OF Mr.. Pee
TIT, MIR. GEYEK and Mr. WILLIAMS, reported resolu
ion in favor Of the claimant, while nority OF the
committee, consisting OF MIR. BUTLER and MIR. BAYARD.
dissent from the report OF the committee, and submit
minority report expressive oil their views.
The question before stated TO be the resolution
reported from The majority OF the comni.tee which is
follows
Resoiped That the Hon SAMUEL s. pHELrs is entitled to
retain his seat in the Senate Of the United States
Mr.. PETIT Mr.. President. in moving TO make this
The special order, did not by any intend
eupy tue attention OF the Senate ~ the form OF discus
sion al all do now. ariee simply TO stale the po
siiion occupied by the Committee the Judiciary, eay
ing those who are abler and interested in this mat
ter than am to discuss it at length The facts OF the
case before the Senate clearly understood, and they
need not be recapltulated by
TO sustain the resolution which the committee have
submitted AT the conclusion of their reportha the Hon
s. PHELPS is entitled 10 retain his seat in the Senate of
the United S,aes-the committee have examined the
consultation and the precedents exent-the pre-
cedens which they think bear upon the question In
the first place, the committee conclude that the design
OF the trainers OF the constitution that there should be
two from each State in commission al all nies,
ready for public service. They to that conclu
sion FIRST from the plain rapable declaration and Ian
guage OF that part OF the constitution ITSELF which is IN
the1e words:
"The Senate of the United States shall be composed OF
from each Sate chosen by the legislature
voten
In addition TO this provision. we find that to avoid
anything like hiatus or vacancy, the trainers OF the
constitution provided two for the creation of this
office. First and primarily. they vested it in the egsla
ture, but coningenty, in the event that the Legislature
did not exercise the authority, in the executive oil the
S,atein whomsoever II is that the executive authority
may be vested for the time being. The trainers OF the
constitution having declared that The Seaate OF The Uni
ted Siaes shall consist OF two from each Stae
have provided two ample means for that end-one OF
which must always be In existence, it must be recoec
cd; Tor no State IS ever without an executive, though II
may be Without legislature When the Legislature is in
session, and ls IN condon 10 and to exercise the
primary authority, they will so do They have the power
TO DO but they not always in that condition The
State always has an executive and The Senate can here
fore be kept ia at all tunes By The action OF these two
departmenls-tbe legislature and the executive Of the
State.
Tue question arises principally, as it is said. upon the
construction OF the latter clause OF the third section Of the
st ace OF the constitution of the United States, which
reads as follows:
" FIRST the legislature may elect" &c.
So and II vacancies happen, by resignation other.
we during The Of Ihe legislature Of any State, The
executive heseoi may make temporary appciaimen. until
The meenng OF The less azure, which shsi n
such vacancies"
That the language OF the constitution. or any law,
no always be construed literally, will from this
language Itself. when clearly demonstrates aihe in
ten,oD and not the language IN all instances must be
observed IL you take this passage literally sir, there
could be appointments unless there vacancies
There must be vacancies" IL YOU take literally
Il reads, before The governor appoint. The Ian
guase expressly in the plural II happen
tue executive thereof may make appointmens,D &c. !;
" ,poinimeDs" ben in the plural correspond with
+" vacancies" | need not, however, dwell upon this
wording No one has doubted, and no one viii doubt
that the executive has the authority 10 appoint when bu
one vacancy happens, and not merely when "yacan.
cies' happen But notice this in rasslngor il is right
before me-io show that cannot, and do not, in gy-
log sound construction and Interpretation TO legal nsiu
meDls, consider them literally, the words indicate II
is never done; nor indeed, II what al inst blush would
seem 10 be ine impression But sf the question arises
ns 10 whether the Imitation here, until the
ng oil The leg gisaiure applies 10 the power 10 appoint
The creating power the contingent power OF the
1--we and lis duration, the term within which be may
efclse, and continue to that power, imi-
lalon upon The office, affecting The commission of him
~bo - the apponee. That the question. The com.
mee have thought that il limitation upon the ap-
pointing power-inai the executive cannoi make ap-
polnimen after the next meeting Of the legislature, but
that The force and The effect oil tne appointment the com
m-sion and The Office, continues until The primary
thony lay Their bands upon The subject and that
authority or ntl the senatorial term, the end oil the six
years, shall expire.
Nd President, the committee are OF The opinion that
the language here usedio wit: and If hap.
pen by resignation otherSis during the OF The
legislature OF any State, the executive thereof may make
temporary appointments until the next meeting oil the legs
iaure, ,s neither pe spcuous eoacse, definite that
s subject 10 Two interpretations that may, and might,
from the beginning the end, have been interpreted in
either the way the either. II may be interpreted to
limit both The appointing and the duration OF the Of
fee way OF Interpretation, and the other way is 10 In
ieTpret The committee have-io apply only 10 the
lime IN which The appointing power may be properly ex
erctsed What, ibtn, Is the dierence These two in.
terpfeatons may be put upon this langsage without doing
violence construction to its evident ia,cution
Well, slr, that was the Object and What would be The
eflectwhst would be the result OF giving inlerpre
tation and wha, tne otbefi Let us inquire for a Jew
moments. BY giving The former interpretation that boh
The power and The oice terminate upon the meeting OF the
legislature, you give to it and harsh n,epre,a
Which does not conduce ohe service and ben
e6i OF forlic the State, but which absolutely de
pfyes The Stale OF the services o. OF its senators
for II you consue the language literally, and terminate
both he office and the appointing power the meeting
OF the egIsiatpre that Is 10 be the construction IL
must be at the meetng OF the legislature There is no
other tme u ~ out OF The question "Meeng' cannot,
BY any possible orlure be construed TO dissolution
or END, termination rising adjournment is utterly
impossible There no such thing giving 10 the word
Injecting that Interpretation. The result would he by
that harsh construction, that you would. in the place
violate what was The PLAIN aud papable nlenon Of the
smers OF The constitution. They designed that there
shoud be two from each State always in com
mis- ion and you necessarily compelled every little
while. by that construction. to have hiatus and vacan-
In yosr Senate; for IT, upon the meeting OF thc eys