had a right to consider as authority, and must have acted under a misconception of right which stood, as they supposed, unquestioned. If this be so, they stand substantially in the condition of an elector who votes for a person disqualified, believing him to be qualified. The vote in such a case, though unavailing, is not rejected from the count.

The only remedy which we can see for an election carried on through misapprehension from such well-founded causes, is to set it wholly aside and open the way to a new choice; but in our view of the case there is no occasion to consider what ought to be done upon such a state of facts.

The committee ought perhaps to notice one other fact which has been relied upon. Since the adoption of the resolution, the journals show a case in which a person who was declared not to be elected in convention because he had not the number of votes required, was afterwards declared elected by a concurrent resolution of the two houses. All that need be said of this transaction is, that it passed the Senate through the misapprehension of one of its members, as the journal proves, and was manifestly a violation of the resolution. It is equally manifest that the members of both houses did not regard it as affecting in any way the standing order, for its provisions were at all times subsequently observed as obligatory in convention. No argument is necessary to prove that such an irregular proceeding could have no effect upon the order either to modify or rescind it.

With these views the committee recommend the adoption of the following resolution:

Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851.

The resolution was adopted without a dissenting vote.

NOTE.-The debate in this case will be found in the Appendix to Cong. Globe, 1st session of 32d Congress, from page 1170 to 1176.

THIRTY-SECOND CONGRESS, SECOND SESSION.

Mr. DIXON, of Kentucky.

There was no report in this case, the Senate refusing to send it to a committee. The facts and the law are succinctly stated by Mr. Rusk:

The following facts make up the case: On the 17th of December, 1851, Henry Clay was a senator from Kentucky, chosen by the legislature for six years, which would have expired on the 3d of March, 1855. Being so a senator, he resigued by a communication to the legislature of Kentucky, declaring that it was to take effect on the first Monday in September, 1852. The legislature, then in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur, from the first Monday in September, 1852, to the third day of March, 1855. The legislature then adjourned. On the 20th day of June, 1852, during the recess of the legislature of Kentucky, Mr. Clay died, and the governor of that State made a temporary appointment" of Mr. Meriwether as a senator from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meriwether immediately took the vacant seat, and held it until Congress adjourned on the last day of August, 1852. On the 6th of December, 1852, the Senate reassembles, Mr. Meriwether does not appear, and Mr. Dixon appears and presents his credentials, and claims the vacant seat.

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Manifestly, Mr. Dixon is one of two senators "chosen by the legislature" of Kentucky "for six years," and he was chosen to fill a vacancy which has happened in the term of Mr. Clay.

The whole question turns on the point, How did this vacancy happen? Mr. Clay resigned, fixing the first Monday of September as the day when he should cacate his seat, and died, nevertheless, a senator before that day arrived. Mr. Dixon was appointed by the legislature when in session, before not only the day which Mr. Clay's resignation fixed for his retirement, but also before Mr. Clay's death.

We who maintain Mr. Dixon's title insist that the vacancy happened by Mr. Clay's resignation. On the contrary, those who deny Mr. Dixon's title insist that the vacancy happened by Mr. Clay's death.

Four questions arise:

First. Can a senator resign?

Second. Can a senator resigning appoint a future day for his retirement from the Senate ? Third. Can the proper appointing power receive such a resignation, and prospectively fill the vacancy?

Fourth. If the legislature so prospectively fill the vacancy, can the appointment be defeated by the death of the resigning senator, before the arrival of the day fixed for his retirement from the Senate ?

If a senator can resign, and can so resign prospectively, and if the legislature can so fill the vacancy prospectively, and if their action cannot be defeated by the death of the resigning senator, then Mr. Dixon's title is good, valid, and complete.

The first question is expressly decided by the Constitution, which declares that vacancies may "happen by resignation."

The second question is decided by an unbroken succession of precedents from the foundation of the government. Mr. Bledsoe so resigned, fixing a future day; so did Mr. Clay in 1842; so did Mr. Berrien in 1852; and so did Mr. Foote in 1852.

The third question is answered with equal distinctness by precedents. The legislature of Kentucky prospectively filled the vacancy made by Mr. Clay's resignation in 1842; the gov ernor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852; and the governor or legislature of Mississippi prospectively filled the vacancy of Mr. Foote in 1852.

The only question remaining is the fourth: Can the death of the resigning senator after the legislature has prospectively filled the vacancy, and before the day fixed for his retirement, defeat the appointment of his successor already made?

The Senate refused to refer the case to a committee, and declared Mr. Dixon entitled to the seat-yeas 27, nays 16.

NOTE.-The debate in the case occurs on pages 2, 93, 96, Cong. Globe, 32d Congress, 2d

session.

THIRTY-THIRD CONGRESS, FIRST SESSION.

Mr. WILLIAMS, of New Hampshire.

Mr. Williams having been appointed by the governor of New Hampshire to fill a vacancy, and the State legislature having met and finally adjourned without filling it, it was held by the committee that the right of representation under the appointment had expired.

IN THE SENATE,
AUGUST 2, 1854.

Mr. BUTLER, from the Committee on the Judiciary, made the following report:

Whereas the Hon. Jared W. Williams was appointed by his excellency the governor of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had happened by the death of the Hon. Charles G. Atherton, a senator, whose term of service would have continued till the 4th of March, 1859; and whereas it is understood that since that temporary appointment was made the legislature of New Hampshire has been convened at their regular session, and has adjourned to the last Wednesday of May next, without filling such vacancy, and that said State still claims a right of representation under said appointment, which the appointee is not at liberty to surrender by his act without the action of the Senate: at his request, therefore,

Resolved, That the subject be referred to the Committee on the Judiciary, to inquire into the facts connected with it, and to make such report as they deem proper to enable the Senate to determine whether the right of representation under said appointment has expired.

Under this resolution the committee are required to inquire into the facts connected with the case, and to make such report as they deem proper, to enable the Senate to determine whether the right of representation under said appointment had expired.

As the question to be determined must depend in a great measure on the proceedings of the legislature and constitution of New Hampshire, the committee submit the following as a part of their report, having a bearing on the case:

COMMUNICATION FROM THE GOVERNOR TO THE LEGISLATURE.

To the Senate and House of Representatives:

I have signed all the bills and resolutions which you have passed the present session and presented for my approval, (except the bills and resolutions which I have returned to the House of Representatives, with my objection thereto,) and having been informed by a joint committee of both branches of the legislature that you have finished the business before you, and are ready to adjourn, by the authority vested in me I do hereby adjourn the legislature to the last Wednesday of May next.

COUNCIL CHAMBER, July 15, 1854.

Constitution of New Hampshire.-Page 23.

N. B. BAKER.

The senate and house shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June, and shall be styled the general court of New Hampshire.

From the language of the governor's communication to the legislature, it seems to have been his judgment that the session had closed; and from the language of the constitution, it would appear that it will have terminated on the day mentioned, as, by another provision of the constitution, the governor on the same day is required to dissolve the legislature. In this view of the subject, in proprio vigore, the legislature had no power of assembling from the time of its adjournment, as announced by the governor, until the last Wednesday of May next, when its existence terminated.

There was a power in the governor, should the general welfare require it, to call the legislature together as an existing body. But when so called together, what would have been the character of such a meeting? Would it not have been a distinct session, carrying with its acts and doings all the incidents of a separate session? Such would seem to be a fair inference. This being conceded, then it would follow that the late legislature did adjourn sine die, in the legal import of the term. If this is a legitimate conclusion, this case cannot, in any particular, be distinguished from that decided by the Senate in the case of the Hon. Samuel S. Phelps, a senator from Vermont, and the committee refer to that case as the authority for their conclusion in the case under consideration. In response to the resolution, the committee are of opinion that "the right of representation under the appointment" has expired.

The report was agreed to without division.

NOTE. The debate will be found in Cong. Globe, 33d Congress, 1st session, pages 2201, 2208, 2209, 2211.

THIRTY-THIRD CONGRESS, FIRST SESSION.

Mr. PHELPS, of Vermont.

Mr. Phelps was appointed to fill a vacancy by the governor of Vermont. The State legislature met and adjourned without filling the vacancy. The majority of the committee held Mr. Phelps was entitled to retain his seat. The minority of the committee held to the contrary, and the Senate adopted the resolution of the minority.

IN THE SENATE,

JANUARY 16, 1854.

Mr. PETTIT, from the Committee on the Judiciary, made the following report:

The following is the resolution referred to the committee, to wit:

Whereas the honorable Samuel S. Phelps was appointed by his excellency the governor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had happened by the death of the honorable William Upham, a senator, whose term of six years would have continued until the fourth of March, eighteen hundred and fifty-five; and whereas it is understood that, since that temporary appointment was made, the legislature of Vermont has been convened at their regular session, and has adjourned without filling such vacancy: Therefore,

Resolved, That the Committee on the Judiciary inquire whether the honorable Samuel S. Phelps is entitled to retain a seat in the Senate of the United States. The clauses of the Constitution which bear upon this question may be found in the third section of the first article of that instrument, and reads as follows:

"The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years; and each senator shall have one vote.

"Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that onethird may be chosen every second year; and 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 then fill such vacancies." The committee do not think that the last clause of article 5 of the Constitution, which provides "that no State, without its consent, shall be deprived of its equal suffrage in the Senate," has any bearing on this question. If a State refuses to appoint two senators by some means known to the Constitution, it does consent to be deprived of its equal suffrage in the Senate. And in such case the Senate cannot supply the deficiency by creating a senator; but it can determine upon the validity of his appointment, whether it comes from the legislature or the executive of the State.

There are two modes by which senators may be appointed, and whether appointed by the one or the other mode they possess the same power and exercise the same rights and privileges and receive the same emoluments. These modes

may be called primary and contingent. The first rests with the legislature a nd the second with the executive of the State when a vacancy happens in the recess of the legislature.

The committee are of opinion that the framers of the Constitution, in providing these two modes by which senators may be appointed, had in view the obvious propriety, if not necessity, of having two senators from each State, at all times in commission and ready for public service. The committee do not think that the language above quoted, "the executive thereof may make temporary appointments until the next meeting of the legislature," is very perspicuous, definite or concise, in its phraseology or meaning, but, on the contrary, it is subject to two constructions. By one of these constructions both the power to appoint and the term of office of the appointee would terminate upon the meeting of the legislature, and thus leave the State for some days, until the legislature could appoint and the new senator reach the seat of government, without an "equal suffrage in the Senate," a condition which the committee think it was the intention of the constitutional convention to avoid. "The executive thereof may make temporary appointments until the next meeting of the legislature." What may be done until the next meeting of the legislature? May appointments be made until that time? Or may the appointee hold his office until that period, and no longer? Or do both determine on the next meeting of the legislature?

The committee think it is a limitation upon the power of the executive to make appointments in the recess of the legislature, and which cannot be exercised after its next meeting; but that the force or effect of such appointment, viz: the commission and office continue until superseded by the action of the primary appointing power, or the expiration of the senatorial term. In giving this exposition to this provision of the Constitution, the committee believe they have consulted and given effect to the spirit of that instrument, and have found the true intention and design of its framers, that the Senate should be composed of two senators from each State.

On the 6th of June, 1809, the Senate adopted the following resolution:

Resolved, That the honorable 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 Senate, in this instance, after able and full debate, has solemnly determined that the office of a senator, appointed by the executive, does not end on the next meeting of the legislature, but that it may continue during its session. The construction that the office does not terminate on the meeting of the legislature has received the uniform approval of the Senate from that time till this; for, in all instances, (and they are numerous,) the senator appointed by the executive has not only held his office until the next meeting of the legislature, but until his successor was appointed and made his appearance here to qualify.

In the late cases of Mr. Winthrop and Mr. Rantoul, of Massachusetts, and of Mr. Merryweather and Mr. Dixon, of Kentucky, many able senators, to whose opinions great deference is due, expressed their convictions that it was a limitation of time, within which the appointment must be made, but that the office continued until superseded by the legislature. If, then, the office does not terminate on the meeting of the legislature, when will it terminate? Can meeting be construed into end, dissolution, or adjournment? Your committee think not. With these adjudications of the Senate, and the exposition in debate by able senators, and in view of the propriety, if not the necessity, of having a full representation from each State in the Senate before us, and believing the language of the Constitution warrants the interpretation we have given it, your committee have come to the conclusion that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the following resolution:

Resolved, That the Hon. Samuel S Phelps is entitled to retain his seat in the Senate of the United States.

MINORITY REPORT.

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The Committee on the Judiciary, to whom was referred the resolution of the Senate of the 4th instant, which reads as follows: Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to a seat in the Senate of the United States," have reported thereon.

As the undersigned dissent from the conclusions of a majority of their colleagues, they ask leave to submit the following report of the minority. The facts upon which the resolution was founded are as follows:

That the Hon. Samuel S. Phelps was appointed by his excellency the governor of the State of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had occurred by the death of the Hon. William Upham, a senator, whose term of six years would have continued until the 4th March, 1855; and that since the temporary appointment by the governor of said State, the legislature of Vermont has been convened at their annual session, and adjourned without filling the vacancy, as prescribed by the Constitution, which reads as follows: