The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-03-30
WEDNESDAY, MARCH Is. 1854.

WEDNESDAY, MARCH Is. 1854
The Senate having resumed the consideration of the
luton reported by the Committee the Judiciary in ela-
ton to the right of Mr. PHELPs to seat in the Senate
Mr.. FOOT said Mr.. President, at this stage of the
debate upon this question: especially after the able speech OF
the honorable senator from lnaiana Mr.. PETTT,l who
this dscusson and after the able and very elaborate
speech Of my colleague yndcaon Of his right to his seat
upon this floor in full response to all the points urged
against his right little be expected of me than
sort of general summary recapulaon OF the argument
upon the affirmative side of the proposition before Anti
cpang that this question would before the Senate
took occasion in the early part of the session examine the
subject with some degree Of care far at least as to look
through all the pccedens and read the debates upon the
several far they have been reported and pub
hshed. Tho result Of that examination was confirmed
conviction that my colleague entitled retain his seat
here, and that State entitled his here
of her senators That opinion venured express TO
several of my associates in the Senate at the time and,
occupying the position DO, representing the State most
directly interested the result OF this question: deem not
Of place, although may be unavaing express to
the Senate the general views which have led to the concu-
sion at which Judgment has arrived upon this question
need not say Mr. President that the question raised IN
this case aside from its general bearing and Importance
of immediate and special interest the State represent
An adverse decision leaves that State without its full and
equal suffrage the Senate of the United States, least
during the present session. the regular session Of the egs
sure of Vermont does not again until the second
Thursday in October next.
The question of construction issue of fact.
Its decision entirely dependent upon the construction of
constitutional provision applicable the Of facts
existing in the case presenedacts about which there can
be they all of public record and pub
lie notorety of which the Senate will take notice entering
upon judicial examination.
The circumstances of the of which this question
arises briefly these The honorable William Upham,
of Vermont died in the month of January at the
last session Of Congress- during the of the egsa
ture OF that State leaving the residue of his constu
tiona term which the 4h of March, 1855 Con-
gress being session. the governor of the State, the
ercise of his constitutional power and duty immediately
been providentiay vacated That appointment
fered upon the eminent citizen whose right here
now in question: who was lhereupon and admitted TO
this floor which he occupied during the
of that and during called executive session Of
present Senate, which immediately followed. Since that
the regular annual session of the Vermont Legislature
has been held having convened agreeaby the require
Of the State constitution the I'd Thursday Of Oc
tober last and dourned the 7h day Of December follow
ing without having made an election of senator to fill the
vacancy that occurred by the deceass of Mr.. Upham
These, Mr. President the precise facts Of the
and they present this question directly the Senate, and
for the FIRST tme What the effect Of the failure Of the
of the Legislature fill that vacancy by election
Of senator upon the subsisng executive appointment
My embraced in this general proposition, which
the whole ground that the executive apponee holds
until the expiration of the constitutional term super
seeded by legislative election; and the of this
proposition 1t my purpose very briefly to attempt 10
tablish. S
of the United States contained in the Sd section Of the
lat article OF that instrument, and much material to
the point now under consideration Is IN the hrst clause 10
these words
from each State, chosen by the legislature
thereof for years. and each shall
The clause after providing for the classification OF
senator's concludes in these words which have been very
repeatedly cited:
"And If vacancies happen by resignation or otherwise
during the of the legislature Of any State the
tive thereof may make temporary appointments until the
next meeting Of the legislature which shall then fill such
canciesh
1t will be observed tina, by the first clause of the section
the sole and exclusive authority senator's in the first
instanceor in other words TO make original appoint
ment-is conferred upon the legislature No authority is
conferred upon the executive any contingency to make
the original appointment OF In the event there
FORE of the failure Of the State legislature to make an original
election OF senator at the appointed time vacancy
ensue as there no secondary provisional authority
vested in the executive other agent make appointments
Of senator 70 succeed the expiration of the constitutional
There have been three OF vacancies result
ing from tho failure Of the legislature make an original
election this body during tho present ,,saonone from
Name, from Mississippi and from North Carolina
two OF which, eare happy 70 Soc have recently been filed
provisional authority lodged by the constitution in tho
ecuvs elsewhere I'll sueh vacancies or even to make
temporary appointments to them is conceded that they
unoccuped unit by the exercise of The
appointing power, elections shall be made to 6l them
But the second clause Of this article which more d.
reciy applies the hand The trainers Of the con-
s,uton, forcseeng that vacancies would be likely hap
pen the Senate from incidental causes by DEATH resg
nation &C. which could be provided ngan,t nor anr-
paed by the legislature conferred secondary or
authority upon another paryto wit: upon the
the STATE 20 act the absence of the primary authority
legislature SO they provided tina, happen
ing the Of tbs legislature the executive OF The State
may make temporary appointments until tho next meeting
OF the legislature The manifest object and that
provision enable the States keen their
senatorial representation full without mourning the nconve
nence tho expense and the delay Of the State
legislature special session TO fiji these accidental
In the considering tho vacancy happened
during the Of the Legislature. The executive then
had authority to make temporary appointment II hap
pened while Congress in There was occasion
then for ths exercise Of that authority The appointment
was made II was valid appointment; 1t was oonsutu-
uons appointment The appointed clothed with
all the constitutional powers, rights privilege. and nnmun
ties fully though he had received his commission I'M
der the authority OF legislative election.
But the question recurs what is the constitutional uits-
ton To hstsppontmen Or in broader terms II you peaso
what is the tenure If the appointment II will
not be disputed tina, Il legislative session ncrvenes the
executive appointment the end Of the constitutional
term, as in the OF Mr. Charlton Of Georgia
whose recent death we have learned with pain. He
appointed by the Of thnt State TO I'll vacancy
Wch mao oeen oceasioned by tho resignation Of Mr. Ber
en ana no cgsnvc session Intervening he held the place
70 the end Of that term The executive even
IN such cases, literally and technically fills the vacancy or
IN different phaseoocy fills the broken term az completely
az Legislative election would do H. II Legislative session
inervenos whit effect has upon the Temporary nppo,n
mcn2 Why, II they make election thai and
puts an end TO the temporary appointment We all admit
But they fail TO elect, what then How affect the
suossng executive appointment II has no effect at ali
bus insist that tho executive sppontec continues to hold
the Office ~
Coneurrng with the report Of the majority of the Com