Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-01-24
O. o M m u nitateS.'
10 tie Editors Of Me Washinolon sentinel:

10 the Editors Of The Washington Sentinel:
] see, by the late proceedings of the Senate
| OF the United States, that they have under con-
sideration the case Of Mr.. Phelps, Of Vermont,
which presents in some of its features not only
new question under the Constitution but i'm
portant considerations connected with the State
governments, which demand deliberate action
on the part of the Senate. Entertaining views
Of the subject wholly differing from those which
have been expressed by Mr.. Phelps, and being
decidedly of opinion that he has no right to retain
his seat in the Senate under the executive ap-
pointment, beg to submit, through your Jour
nal, the following views upon the subject.
Having no particular fondness for superfuity
of speaking or writing, especially for their
own sakes, consult brevity rather than ex-
pansion as the best means of getting you to
publish and the public to read this article.
The facts of this case are simply these: Mr..
Upham, senator from Vermont, whose term
of service would have expired in March, 1855,
having died during the recess of the legislature
of his State, the then acting governor appointed
Mr.. Phelps to fill the vacancy occasioned by
Mr.. Upham's death, and under this executive
appointment Mr.. p. took his seat in the Senate;
since which the legislature Of Vermont con-
yened at their annual session and formally
adjourned without making any appointment
or filling the vacancy created by Mr.. Upham's
death. Mr. Phelps now contends that he is
entitled to serve out the term for which Mr..
Upham was elected, and has accordingly, with
out any previous action by the Senate, taken
his seat. The question presented for the Sem
ates consideration is, had he the right to do so
The third section of the first article of the
Constitution of the United States contains this
provision:
"The Senate of the United States shall be
composed Of tsro senator's from each State,
chosen By the legislature thereof for sic gears
and each senator shall haze one Uote. A,sd If
cacancies happen By resignation or otherwise
during the recess of the legislature of any
State, the executive thereof may make temporary
appointments until the mert meeting of tie
legislature, ahich shall then fill such Uacancy."
Now, in support Of Mr.. Phelps's claim to
hold on, he contends that the limitation Of the
executive appointment under the Constitution,
must be construed as applying alone to the
poacer Of appointment by the executive, and
not to the tenure Of the office; and, in defence
OF this construction, he argues that if it was
otherwise, and the limitation was to the Office,
that it would necessarily terminate at the
moment the Legislature assembled; and this
cannot be SO, because, he says, the Senate of
the United States had heretofore solemnly SO
decided in the case of General Samuel Smith,
senator from the State of Maryland. Now,
have no means of ascertaining what the facts
or circumstances were which operated upon the
Senate to make any such decision; but j feel
justified in saying that under no state of things
that can imagine was such decision consti-
tutional, or ought it to be considered as bind
ing upon any future Senate. Mr.. Phelps adj
mits that, as that decision was that the senator
had the right Of holding on during the session,
and his appointment did not end soith the meet
ing Of the Legislature, it was evidently err
roneous, inasmuch as it would conflict nth The
rights Of the legislature at any time during
the session to fill the vacancy. This, Mr.. Phelps
admits, is an Interpretation Of the Constitution
that cannot be sustained. That such could not
have been the intention Of the senators who
decided the case Of General Smith, is quite
certain. The words Of the resolution Of the
Senate, in that case, were expressly limited to |
the session, and it was doubtless. intended to
decide nothing moro than that the temporary
appointment did not cease when the legislature |
first met, but was to continue until the legisla-
tnre chose to make apermanent one; and ifthey |
failed to do 30, then, the erecutire appointments
icould cease with the session. The case Of
General Smith, then, can form no precedent !
in the present case, if it even were admitted to
be correct, which is wholly denied. What the
facts and circumstances were, under which the
decision was made, do not appear. Whether
the case was examined or discussed or in
tended to operate rs a precedent for the future
action of the Senate does not appear. Might |
not the esprit de CORPS or other considerations
not now to be ascertained have influenced that
particular case Upon these points there is
no information, and it rests upon single reso.
luton, affirming the right Of party to hold
his seat during the whole session Of the legis-
latare who had the right at any moment to |
fill the vacancy. Whatever did operate to pro-
duce that decision, however, it cannot and
ought not to form any precedent for the de- |
cision of the present case.
But it is argued that there is in fact no ex-
press limitation in the Constitution to the APP |
pointment made by the governor in such a case |
as the presentone and that there was no necessity
for any such limitation; that the appointment
carried with it its own limitation that it was
10 gil pdcdncy, which could endure no longer |
than the vacancy existed that the appointment
being temporary one, and subject to the ac-
ion of superior authority, it was terminable
1t any moment when the legislature of the
State had the capacity to act, and should in
fact act
Now, this is petitio principii. Itbegs the
whole question, and takes for granted that
which is denied. That such was not the view
If the trainers of the Constitution, nor just
construction of its provision, is manifestly clear.
There is limitation to these executive APP
continents in express terms. The language
# the Constitution is, that the appointment?
hall be temporary, and continue until the meet
ng Of the neat. Legislature, which shall then. fill
he cacancy. Hence, although it was to gil
'acancy, the appointment was not to endure,
IS Mr. Phelps supposes, until the Legislature of
he State should not only haze the capacity to
Ict, but should actin other words until a new
appointment was actually made.
Now, If such had been the intention Of the
ramers Of the Constitution, would they have
Employed the words used in the Constitution
Who better understood the import Of words
han Madison and Hamilton, and Morris, the
after Of whom gave shape to the Constitution2
low much more proper and easy would 1t have
'een to have said that these temporary appoint
nents by the executive should continue until
he State legislatures should fll the vacancies | .