Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1854-01-20
Senator Phelps.

below Will be found the remarks OF Messrs.
Foor and PHELPS in the Senate, on Mr.. Sc
WARDS resolution, that the Committee on
the Judiciary inquire whether the Hon.
Samuel S. Phelps is entitled to retain his
seat in the Senate of the United States.'' We
take them from the Globe, and give them at
length, with the simple remark that we un-
derstand, on the best authority, that the pre-
vailing opinion at Washington is against the
right of Judge Phelps to retain his seat.
Mn. Foor. 1t is due to my colleague that should
briefly make an explanation to the Senate. We all
doubtless fully appreciate the delicacy and embar-
rassment of his position That position is not of his
seeking. Although he may be apprehensve of II
seeming appearance of obtrusivencss in resuming
his seat here, and claiming the right to retain it,
he is but acting in obedience to the dictates of
sense of obligation to the people of that State who
have honored him SO long with a sent on this floor,
and which, may be allowed to say, he has filled
with distinguished ability. The opinion prevails
in that State, and l may say it prevailed in the
Legislature, and had more or less influence in the
Legislature in controlling its action in reference to
the election of Senator, that in the evont of fail
ure of the Legislature to make election of Sena-
tor, the previous Executive appointment would con-
tinue, My colleague could do otherwise, in JUS
tce to the State than here and resume the
dentias, and present. for the decision of the Senate
the question Of his right to retain it, and the right
of the State 10 have hiin retain it,
The question, Mr.. President, is an important one
and, in some of its features, nm entirely new one
1t is II question of that magnitude and Importance
which ought never to be disposed of in a running
o.hand DISCUS on in the Senate, without the previ
Gus investigation of an appropriate committee.
trust that the resolution offered by the Senator from
New York may be adopted. trust that it will meet
with opposition, but that the question will be re-
ferred to the Judiciary Committee. As a case invol-
wing complex questions of constitutional aw-as n
case involving important questions of personal and
State rights and privileges, it is cminently entitled
to the consideratc and patient investigation of your
Judiciary Committee and when their report shall
be laid before us, shall all be better prepared to
form correct conclusion on the questions involved
shall refrain from entering on the discussion of
the question until the committee shall have made
their report.
Mr. PHELPS. Mr.. President, I did not como pre-
pared this morning to present argument to the
Senate upon this question is it my purpose do
so now did desire, however, an opportunity to
explain to tho Senate the motives which induced me
to present myself here, claiming, in behalf Of the
state which profess to represent, right to seat
in this body. The explanation, however, given by
my colleague the honorable Senator from that State
tMr. Foot has satisfied me, and therefore desire
to say no more,
trust that the Senate will dc me the Justice to
believe that come here, not with any personal pre-
tensions, but to assert and enforce what consider
the constitutional right of sovereign State Waiv-
ing that matter, however, Mr.. President am per-
fccty willing to comply with the desire pressed by
the Senator from North Carolina, [Mr. ladger,l in
presenting to the Senate rs think can do in n very
few words, the grounds upon which my claim to u
seat hero rests.
am perfectly aware, Mr.. President, that the gen.
cral impression is such has been 1prcsscd by the
Senator from North Carolina but from careful
examination Of the phrascoogy Of the Constitution
from an examination of the prcccdents, as far as
they have ho"., indicating ,hu - a.
from time to time, must say it is my deliberate
opinion that the commission under which I took my
seat here at the last session has not yet expired
The expression of the Constitution under which
this appointment made, is in these words, if |
recollect them lightly In of n vacancy, such
as occurred by the decease of Mr.. Upham, the Exc
ccutvc of the State is authorized 'to make Temporal
ry appointments until the e1t meeting of the Leg
islature' of the state, (which shall then fill such
vacancy" The impression to which I alludc, as
expressed by the honorable member from North Car
olina is, that the limitation imp piled in the words
"until the next meeting of the Legislature" is II
limitation Of tn" office oppoutmc which there
fore terminates the ri ght of the appointcc.
This impression, l apprchcnd, is altogether crro-
neous. The Limitation. in my judgement, applies
to the power of the Executive, and nothing else !;
and viewing it, in this light, as a limitation upon
the power of the Executive, the language of the
Constitution, "untl the next meeting of the Leg
isature,' is peculiarly appropriate.
If l am right sir, in this construction of the
Constitution, in considering the limitation as ap-
plicable, not to the Office created by the appoint
ment but to the power which makes it, it will be
seen at once that the prevailing impression upon
this subject is altogether erroneous. IT, however
the other construction ho adopted, the Office term.
mates, unqucstonably, at the moment when the
Legislature Of the State is organized and in a
capacity to act but this construction has been uni.
formly repudiatcd.
will not go into minute examination of the
preoedents but may alude to what, far as
am acquainted with the proceedings of this BODY
is the first precedent on the subject. 1t was the
case of Mr.. Smith, of Maryland who held his place
here under the appointment of the Executive of the
State of Maryland. The Legislature of Maryland
met whilst this body was in session. The question
arose whether the meeting of that Legislature did
not terminate the Office of Mr., smith as a member
OF this body. A resolution was introduced and
carried by most decided majority, that the men,
Der from Maryland was entitled to retain his in
this body during tsuch is the language of the res
olptionj the session of the legislature"
Well, sir, this word during is susceptible of
two Interpretations the one is to the effect that
the member entitled to his seat, although the
Legislature OF his state was in session the other
is, that he entitled to his seat until the termn-
alton OF that session. 1t must he apparent to all
that the latter Interpretation could not with any
propricty be given to the resolution because the
member was liable to be displaced at any moment
by the action Of the Legislature of MARYLAND The
import of the resolution thereof was this that
he was entitled to retain his seat Notwithstanding
the Limitation to which have alluded in the Con-
stitution-thc limitaton until the next meeting of
the Legislature"
Now, sir, from this resolution, infer that my
own construction of the Constitution in thi. par-
ticuar, is the correct one, believe that in every
instance in <hich the subject has been before the
Senate this precedent ha. been adhered to. / am
not aware Rf any case in which member has been
excluded from seat here in consequence of the
meeting of the Legislature of his State.
But, sir, when making this assertion, it is proper
that | should remark, that know of no case in
which thp question has before this body under
circumstances precisely like the present, because
know of no where the question has been raised
after the adjournment of the Legislature, The pre-
,cdents, therefore, as far they CO. tend to sustain
my own construction of the Constitution but the
question Of the effect Of the adjournment of the
Legislature is one with respect to which there is
believe, no precedent either way. | may be permit
led to say, however-although | am not disposed
now to go into formal argument on the subject
hat thero is nothing in the Constitution which tends
10 terminate the appointment at the adjournment of
he Legislature. If the limitation applies at ALL it
applies to the meeting of it, and must apply to its
its organization, and capacity to
act. That it means this is perfectly apparent from