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

did other gsnremen believe expressed some opinions
lpon that very question: but ON one occasion when inc
question itself was not before the oenas ss ~ Wv
lnder appointment from the governor Of MS state 70 MI
vacancy which had happened during me recess o. .e
legislature OF his State. The Legislature met WINS Mt
Winthrop in his here and soon after they mel
hey elected his in the person oil Mr. hatou'
information Washington, through NE Ordinary
channels of communication, that an eecton hau oe. oS
by The legislature Of Massachusetts, and hat hi
had been elected the OF Mr. Webster ~ inc
place Of Mr.. Winthrop. few days afterwards, MT WIN
lbrop-whose character was well known ana appreciates
here only that OF intelligent slatesnan but also
an accomplished genieman--staed 10 the Senate that he
had received from the governor OF his State appropriate
letters stating the fact that Mr. kanou had been elected rs
the Mr. Webster and that he ie IN some a
Guilty deciding whether being thus advised that an cleo
ton had been made he could retain his seat under me ex
ecutiye appointment The question was referred TO the
Committee the Judiciary and that committee reported,
their opinion that the Of the credentials here
official information 10 the Senate that an election had
been made by The legislature, and that the seat OF Mr. Win
throp ipso tacio vacated.
But an incidental question arose. which whether,
tie senator elect here, and the Senate had no IN
formation whether that elect would accept that
the election made by the legislature OF Aassa
chuses had been far perfected to vacate the seat Of
Mr. Winthrop and that was, IN ruth, the only question
In the course the debate doubt incidentally as TO
how far the executive appointment would extend II should
turn out TO be the judgment of the Senate that they
consider the election made until the senator elect
should present himself and claim the seat should give
acceptance IT,,
debate upon that question that expressed the views which
the gentleman fro Vermont Mr. PHELrsl did me the
honor TO read the other day, IN connection with the views
of other SENATOR'S expressive OF The opinion mat there
aoihing the constitution to limit the duration OF
the appointment but election by the legisla
turc that f such election made, the executive
appointment would continue until such election was made
That the substance, think, of the views then ex
pressed. Now very sound and philosophical rule OF
law that when opinion given by judge upon ques-
ton before the court that opinion Is not entitled to that
judicial respect that opinion given by Judge upon
question Immediately before the is entitled 10. And
the very plain and avery sound one, The judi
ca mind is not acting under that degree OF responsibility
upon incidental questions when giving opinions upon
questions directly before it for judgment am free TO
fess that if had entertained those opinions even more
strongly than then expressed them, should have the
frankness and candor of mind to acknowledge my
But am free admit. that in throwing out those views
the time did, they were given without full consideration
and review of the whole question; and prepared to say
at once upon the after conclusions of my judgment, that
those views erroneous
The clause Of the constitution under which this question
Immediately arises, that am free to declare
lar as STANDS by ilse Is not Tree from douot no
determined ii clear That clause of the constitution
is as follows:
"If vacancies happen by resignation otherwise during
the of the legislature of any State the executive
thereof may make temporary appointments until the next
meeting of the legislature which shall then FL such
cancies."
Now the question discussed with much ability by the
honorable gentleman from Vermont upon the proper
construction OF this Application
Of the word unt whether that word untilo limited the
power of appointment affected the duration Of the Office
under the appointment, and he to the conclusion by
most clear and logical argument that, dramatically the
word unln qualified the power of appointment only, and
did affect the duration of the Office. As have said if
cunne inquiries to this clause of the constitution, it
is not free from doubts the grammatical construction put by
the gentleman from Vermont upon the word un may be
the BY referring the words the
their proper place. and giving them their proper gramma
zeal construction may be that the word until" limits only
tha ,h.ln
of the constitution does follow that that gram
NAUTICAL construction is control the meaning Of the
sttuton | not clear, in my opinion, SO far as have
reflected upon IL that the genemans conclusion correct
IL the intention Of the constitution that the
word unn should limit the power of appointment and
that Alone it would follow necessary consequence that
the appointment made would continue until 1t SUI
perseded by legislative appointment and if that in
tended TO be the construction of the constitutions presume
the convention who framed that sentence would hardly
have used that phrase temporary appointments" far less
would they have refrained from giving to that executive
appointment the character of to fill the vacancy,
phrase which they carefully refrain from using.
10 reviewing my former opinions upon this subject have
felt II necessary TO look the structure of this government
under the constitutions and have been strongly aad orcby
impressed by the remarks which fell from the honorable
ator the chairman of the Committee on the Judiciary mr.
BurLrE,) We must look al the structure Of the govern
nent under the constitution. And what is that structure
The national legislature is composed Of two hranchesthe
House of Representatives and the Senate and the consu
of each clearly Indicated ln the House OF Repre-
sentayes the people Of the States represented numer
ray; in the Senate they represented mot numerically
but with utter disregard of numbers The popular voice
in the Senate is not heard felt numerically. But the Sem
ate, IL is constituted under the constitutions is the repre-
sentative Of the States States The voice Of the States
under the constitutional Dendment is 10 be learned only
through the legislatures Of the States the will Of the States
lRcer the siuional intendment TO be learned only
rom the legislatures of the States Ii clear that under
he structure Of the federal government the appoint
senator's given the States through their legislative bod
es. But the constitution sso providcdbu provided in
Jingle case onythn where vacancy happened when the
organized representatives OF the Sae the legislative body
II the State either being in session,
appointment, should be madeof what oharaeteri An APP
continent TO I'll the vacancy happenings No, SIR that
meaning is clearly excluded from The Constitution. II does
'ecancy, when happened during the Of the
legislature II excludes any such thing and excludes il by
areul language. The power u given to the executive TO
make only temporary appointments And IN tho very
sentence the constitutional ntendment follows that such
appointment IS TO be temporary only, because The po@e
ny creating senator with full powers, or e I'LL ne full
em.
The language OF the constitution Is, that the executive
hereof may make temporary appointments until the
Meeting of the legislature, wi ch shall then gu such
Now what the vacancy TO be led} IL lsa vacancy
the senatorial term which senatorial terms crei 0
" the constitution add made definite. When the vacancy
eppons the term having three years and the
eetng is elected by the legislature he is elected
term of years, for the constitution prohibits thst
,u he Is elected for tho uncxpired term and thus fills the
acancy And the power to m vacancies Is reserved 10 the
egislnure say then, that IL an executive appointment
on endure beyond the period when the legislative body
meets then viii be appointment 10 m the vacancy de-
endep upon the Nin n the legislature and dependent
ipon the will Of the executive Thus if give this
eed meaning to the clause in quesionwheh is the third
scton Of the first article strongly illustrated by the
tta oat 90