subject of executive appointments, no case like the present has been found. Several cases have occurred in which the executives of different States, in anticipation of the expiration of the regular term of service, have appointed senators, (the legislatures not being in session;) and in all of these cases the senators thus appointed were admitted to their seats; until the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, produced his credentials from the governor of Connecticut, and the Senate decided he was not entitled to his seat by a vote of 23 to 18.

The decision seems to have been generally acquiesced in since that time; nor is it intended by the committee to call its correctness in question. The principle asserted in that case is, that the legislature of a State, by making elections themselves, shall provide for all vacancies which must occur at stated and known periods; and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution. The report was agreed to.

SPECIAL SESSION OF THE SENATE, 1849-THIRTY-FIRST CONGRESS. JAMES SHIELDS, of Illinois.

Mr. Shields was an alien by birth, and had not been a citizen of the United States the term of years required as a qualification for senator. Hence the election was declared to be void.

On March 13, 1849, Mr. MASON, of a select committee, made the subjoined report in the case of Mr. Shields, of Illinois. The secretary read the report and resolution, as follows:

The select committee to whom was referred the certificate of election of the Hon. James Shields to a seat in this body, with instructions to inquire into the eligibility of the said James Shields to such seat, report:

That, having given due notice to the said James Shields, he appeared before them, and they took the subject into consideration.

They further report that the said certificate of election declares that the said James Shields was chosen a senator of the United States by the legislature of the State of Illinois on the 13th day of January last; that it further appears, and is admitted by the said James Shields, that he is an alien by birth, and the only proof before the committee of the naturalization of the said James Shields in the United States is contained in the copy of a certificate of naturalization in the circuit court of Effingham county, in the said State of Illinois, which is annexed to and made part of this report, by which certificate it appears that the said James Shields was admitted by said court a citizen of the United States on the 21st day of October, 1840.

The committee therefore report the following resolution:

Resolved, That the election of James Shields to be a senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a senator of the United States.

Mr. CALHOUN submitted the subjoined amendment:

Resolved, That the election of James Shields to be a senator of the United States was void, he not having been a citizen of the United States the term of yea's required as a qualification to be a senator of the United States at the commencement of the term for which he as elected.

This was agreed to, March 15, 1849. During the contest Mr. Shields tendered his resignation. A motion to accept his resignation was voted downyeas 12, nays 32. The committee's resolution, as amended by Mr. Calhoun, was adopted without division.

NOTE. The debate in this case, which is extended, will be found on pages 327, 332, vol. 40 Cong. Globe, Special Session, 1849.

THIRTY-FIRST CONGRESS, SECOND SESSION.

Mr. WINTHROP, of Massachusetts.

The sitting member, under executive appointment, has the right to occupy his seat until the vacancy is filled by the State legislature and the credentials of the person so elected are presented to the Senate.

In this case Mr. Winthrop, of Massachusetts, was appointed by the governor of the State to fill a vacancy. Mr. Rantoul was elected by the legislature, and Mr. Winthrop occupied the seat for some time, till Mr. Rantoul appeared and presented his credentials. Mr. Winthrop himself offered the following resolution, which was referred to the Committee on the Judiciary:

Resolved, That the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at what period the term of service of a senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires.

Mr. BUTLER, from the Committee on the Judiciary, to whom was referred the resolution submitted by Mr. Winthrop, made the following report:

The Committee on the Judiciary, to whom was referred a resolution directing said committee to inquire and report at what period the term of service of a senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires, have had the same under consideration, and

report:

The question presented by the resolution turns mainly upon the construction of the clause of article 1, section 2, of the Constitution of the United States, which provides that "if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall fill such vacancies."

Your committee are of opinion that the sitting member under executive appointment has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a senator during the next meeting thereof. To fill such vacancy, it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such acceptance should appear by the presentation to the Senate of the credentials of the member elect, or other official information of the fact; at which time the office of the sitting member terminates. When the member elect is present and ready to qualify, his express acceptance is at once made known; and when his credentials are presented in his absence, his acceptance may be fairly implied.

These general views are sustained by precedents. An early one may be found in the Senate Journal of 1809, page 381, where the question was settled, after debate, by the adoption, on the 6th of June, of the following resolution:

Resolved, That the Hon. Samuel Smith, a senator appointed by the executive of Maryland to fill the vacancy which happened in the office of senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the legislature of Maryland, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June, unless said legislature shall fill such vacancy by the appointment of a senator, and this Senate be officially informed thereof.

The precedent in this case has been uniformly followed from that time to the present, in the many cases that have arisen involving the same question. The whole subject was laid upon the table.

NOTE.-The debate upon this case will be found on pages 461, 462, 463, and 464, Cong. Globe, 31st Cong., 2d session.

THIRTY-SECOND CONGRESS, FIRST SESSION.

YULEE 8. MALLORY, of Florida.

The State legislature may choose its own method for the election of a United States senator. On the first ballot Mr. Yulee, the contestant, received 29 votes, and 29 other votes were given to "blank." Mr. Yulee claimed that as he was the "only qualified person voted for" he was duly elected senator. The committee held otherwise.

IN THE SENATE,

AUGUST 21, 1852.

Mr. BRIGHT, from the select committee to whom the subject was referred, made the following report:

That they have examined the law and the facts connected with this case; they have heard the contestant by able counsel, and the sitting member in person, and after giving to each that consideration which the importance of the questions embraced merits, find that on the 13th day of January, 1851, the general assembly of Florida met in convention of the two houses to choose a senator of the United States to supply a vacancy which would occur before another constitutional session.

The president of the senate presided, and upon a call of the roll, a poll rira voce was taken of the members, pursuant to the requirements of the constitution of the State, and twenty-nine responded David L. Yulee, and twenty-nine blank, whereupon the presiding officer declared that no choice had been made; they then proceeded to a second and third vote, with substantially the same result. On the 15th of January they again met in convention for the same purpose, and upon a call of the roll thirty-one members responded R. S. Mallory, and twenty-seven votes for Mr. Yulee and others; whereupon the President declared Mr. Mallory to be duly elected.

Neither the record nor any other evidence in the case shows that objection was made to any of those proceedings, or that their legality was questioned in or out of the convention at the time.

The certificate of election was granted to Mr. Mallory, and he having been qualified, now holds the seat.

Mr. Yulee contests his right to the seat on the ground that he was himself elected at the first vote, because there was a quorum of each house present, as appears by the journals, and he being the only qualified person voted for, had a majority of the legal votes. Those who responded "blank," he contends voted for no qualified person, and waived their electoral rights as effectually as if they had been silent.

Mr. Mallory opposes to this inference a resolution of the two houses adopted in 1845 by concurrent vote, which has never been rescinded, and is in the following words:

Resolved, That a majority of all the members elect, composing the two houses of general assembly, shall be necessary to determine all elections devolving upon that body.

The whole number of members elect was fifty-nine, and Mr. Yulee not having a majority of that number was not elected. From the facts disclosed it is quite apparent that the convention took this view of the matter.

In deciding the questions which are raised out of the facts, the Constitution of the United States must, to the extent of its provisions, prevail over all other authority. That instrument gives to each State the right to elect two senators. Article 1, section 4, is in these words: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislatures thereof."

The words of the third section in the same article are: "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof for six years."

The first question, then, which arises is, what constitutes the legislature of Florida for that, and that only, has the right to make the choice. The Constitution of the United States, article 1, section 1, says: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The constitution of Florida declares that "the legislative power of the State shall be vested in two distinct branches, the one to be styled the senate, the other the house of representatives, both together the general assembly." These authorities leave no doubt that the two houses constitute the legislature of Florida, which holds the unqualified right, under the Constitution of the United States, to elect the senators for the State.

Has this body executed the trust confided to it in such a manner as to satisfy the terms of the Constitution? The time, the place, and the manner of holding the election are all to be prescribed by it. To the time and place no objection is made, but the validity of the manner is questioned.

No mode of election is prescribed by the Constitution, but this duty is left to the discretion of the several legislatures of the States. In carrying out the power, some elect by a concurrent vote of the two branches, the one having a negative upon the action of the other; others elect in a convention of the two houses, in which case (as far as your committee are advised) a majority prevails. If numbers be regarded as a material element in such elections, it is manifest that in the same body of men different results may be produced, according as one mode or the other is pursued. There may be in convention a majority in favor of a candidate, making his success by this mode certain, while with the same number in his favor he might be defeated in one of the houses, if a concurrent vote is required; and such cases have occurred.

Again, it may be observed that the power given to the legislature to regulate the time, place, and manner applies as well to representatives as to senators; and Lere again are other diversities in the manner of exercising it. Some States elect by a plurality of votes; others by a majority; and others have required at the first trial a majority, and a plurality afterwards. Some again (until Congress made a law upon the subject) elected by general ticket; others either by single districts or districts entitled to more than one, according to convenience. None of those modes of electing senators or representatives have been held unconstitutional, but members have uniformly been admitted to their seats, whether elected in one or other of these modes.

These practices have at all times existed, and have uniformly been recognized as constitutional, proving clearly that the discretion reposed in the

H. Mis. Doc. 57. -39

legislature of the States may be exercised in a diversity of ways and yet be a sufficient compliance with the requirements of the constitution.

The legislature of Florida adopted a course different from any of these, by requiring a majority of all the members elect in convention to make choice of a senator. This rule is as unobjectionable and harmonizes as well with the constitution as the modes pursued elsewhere. The right of the State to adopt such a rule has not been directly questioned, but the legality of the means by which it was executed is denied. This point is the chief ground of controversy between the parties. On the one hand, the validity of the resolution above cited is denied; on the other, it is alleged that if the resolution was not in force a usage equivalent to it existed, which was equally obligatory upon the convention. This again is denied.

We will first consider the character, force, and effect of the resolution.

The first objection to it is, that it contains no evidence on its face that it is a joint act of the two houses. This is true; but the journals place this matter in the clearest light. While there is an apparent defect in form, there was none in fact. It was passed in one house, sent to the other, and there agreed to by a concurrent vote; it is a clear, unequivocal expression of the will of each house. No words added to it can make it a stronger or more complete expression of that will. It is also in substance joint, since it is the will of both houses expressed in the same words. Moreover, it is permanent, being designed as a rule of action for both, by the united will of both, and it must stand as such until both concur in repealing or rescinding it.

The next objection is, that it has not the forms of law usual in legislation, because it is not signed by the officers of each house, or approved by the governor. It is a sufficient reply to state that the constitution does not require the legislature to regulate the manner of election by law; it may be by resolution, either joint or several, or in any other method which commands the agree ment of both houses of the legislature. The form of action being discretionary and the substance right, the objection becomes immaterial.

The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a sufficient law, because they alone are empowered to prescribe the manner of choosing in such mode or by such means as they please. On this point a State constitution can neither control nor modify that of the United States, for the latter is the supreme law.

This resolution being joint in fact, though not in the usual form, was a standing order of the two houses, in force until they by concurrent vote should rescind or modify it. It was consequently the rule prescribing the manner of election to the two houses when they met in convention on the 13th of January, 1851, and they were bound to proceed according to its requirements.

This being the view which the committee take of the case, there is no necessity for pursuing the subject further, since Mr. Yulee did not obtain votes sufficient to elect him. It may not, however, be out of place to observe that the facts disclosed render it evident that the two houses entered the convention with the full belief that no number short of a majority of all the members elect could make a choice of a senator, and conducted their proceeding under the conviction that they were bound to adhere to the established practice. There is also reason for believing that the members of the convention assembled and acted under the conviction that blank votes would be counted, inasmuch as the two houses on a former occasion and in another election had so decided. If blank votes are beyond doubt a nullity; if the resolution is to be regarded of no effect, and we are brought to the question, under these circumstances, whether Mr. Yulee is duly elected, it seems to us difficult to maintain the affirmative of that proposition upon the facts before us. If the members were misled on both of these material points by assuming that their previous doings afforded safe and certain rules of action, then they were misguided by what they