WEDNESDAY, March 8, 1837.

The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the appointment of the Hon. Ambrose H. Sevier; and, On the question, "Will the Senate agree to the resolution?" it was determined in the affirmative-yeas 26, nays 19.

On motion by Mr. Grundy, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Allen, Benton, Brown, Buchanan, Clayton, Cuthbert, Fulton, Grundy, Hubbard, Linn, Lyon, Nicholas, Niles, Norvell, Pierce, Preston, Rives, Robinson, Ruggles, Smith of Connecticut, Tipton, Walker, Wall, White, Wright, and Young.

Those who voted in the negative are Messrs. Bayard, Black, Clay, Crittenden, Davis, Kent, King of Alabama, King of Georgia, Knight, McKean, Morris, Mouton, Prentiss, Robbins. Smith of Indiana, Southard, Swift, Webster, and Williams.

Whereupon the oath prescribed by law was administered to the Hon. Mr. Sevier, and he took his seat in the Senate.

[Thirty-second Congress-Second session.]

ROBERT C. WINTHROP,

Senator from Massachusetts from July 30, 1850, to February 7, 1851.

Mr. Winthrop was appointed July 27, 1850, to fill a vacancy happening in the Senate by the resig nation of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the legislature to fill the unexpired term. February 4, Mr. Rantoul not having appeared to take the seat, Mr. Winthrop offered a resolution, which was agreed to," 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." The committee reported that a person so appointed had a right to the seat until the legislature, at its next meeting, should elect a person to fill the unexpired term, and the person elected should accept, and his acceptance appear to the Senate; that presentation of credentials implied acceptance; that these views were sustained by precedents. The report was debated, but no action taken, the whole subject being laid on the table. Mr. Winthrop vacated the seat February 7, 1851, when Mr. Rantoul's credentials were presented.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 2d sess. 31st Cong., 1850-51, with the report of the committee from Senate Reports, 2d sess. 31st Cong., 1850-'51, No. 269.

The debates on the case are found in the Congressional Globe, 2d sess. 31st Cong., vol. 23, within pages 425-478, special references to which are inserted below.

TUESDAY, February 4, 1851.

Mr. Winthrop submitted the following resolution; which was considered by unanimous consent, and agreed to:

"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. Winthrop accompanied the introduction of the resolution by some remarks on the practice of the Senate in regard to the subject, expressing a desire in bis own case to hold his seat just so long as he was constitutionally entitled thereto and no longer. These remarks are found on pages 425, 426 of the Congressional Globe referred to.]

WEDNESDAY, February 5, 1851.

Mr. Butler, from the Committee on the Judiciary, consisting of Messrs, Butler (chairman), Berrien, Bradbury, Dayton, and Downs, who were instructed by a resolution of the Senate 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, submitted a report, which was ordered to be printed.

REPORT OF COMMITTEE.

IN SENATE OF THE UNITED STATES.

FEBRUARY 5, 1851.-Submitted, and ordered to be printed.

Mr. Butler 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 I, 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 the 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.

[A list of precedents accompanying the report is found annexed to the report in the volume of Senate Reports referred to in the head-note. It is not printed here, as all the cases are included in the list of appointments on page 146 of this book.]

FRIDAY, February 7, 1851.

Mr. Winthrop presented the credentials of the Hon. Robert Rantoul, jr., elected a Senator by the legislature of the Commonwealth of Massachusetts to fill the vacancy occasioned by the resignation of the Hon. Daniel Webster; which were read.

[Mr. Winthrop stated that he presented the credentials "with the understanding that, agreeably to the recent report of the Judiciary Committee, the presentation of the credentials would imply an acceptance on the part of the Senator-elect, so far forth at least as to terminate the office of the sitting member." These remarks are found on pages 459, 460 of the Congressional Globe referred to.]

Mr. Clay moved to take up the report of the committee with the view of deciding whether the retiring member is entitled to his seat.*

[Some remarks on the report are found on page 460 of the Congressional Globe referred to.]

Mr. Davis, of Massachusetts, submitted the following resolution; which was considered by unanimous consent:

"Resolved, That a Senator appointed by the executive of a State to fill a vacancy is entitled to hold his seat until the Senate is satisfied that a successor is elected and has accepted the office: Provided, Such election and acceptance take place during the session of the legislature held next after the vacancy occurs, and that such acceptance ought not to be inferred from the mere presentation to the Senate of the credentials of the newlyelected Senator."

[A debate on the question whether the right to a seat under executive appointment expires on the day of the meeting of the legislature or not until an election has taken place is found on pages 460-463.]

Mr. Rhett moved to amend the resolution of the gentleman from Massachusetts by striking out all after the word "resolved" and inserting the following:

"That a Senator holding a seat by appointment of the executive of a State can only fill the same 'until the next meeting of the legislature' thereof, at which time it devolves upon the legislature of the State to fill the vacancy then existing."†

[The debate on the same question is continued on pages 463-465 of the Congressional Globe referred to.]

An amendment having been proposed by Mr. Rhett, on motion by Mr. Hale that the resolution lie on the table, it was determined in the negative-yeas 22, nays 25.

On motion by Mr. Rhett, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Benton, Bradbury, Butler, Chase, Davis of Mississippi, Dickinson, Douglas, Downs, Felch, Gwin, Hale, Hamlin, Hunter, Jones, King, Miller, Pearce, Phelps, Pratt, Sturgeon, Upham, and Wales.

Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Clarke, Davis of Massachusetts, Dodge of Wisconsin, Dodge of Iowa, Foote, Greene, Mangum, Mason, Morton, Norris, Rhett, Rusk, Smith, Soulé, Spruance, Turney, Underwood, Walker, Whitcomb, and Yulee.

[The debate on the same subject is continued on pages 465-467 of the Congressional Globe referred to.]

⚫This motion is taken from the Congressional Globe. It does not appear in the Senate Journal. This amendment is taken from the Congressional Globe. It does not appear in the Senate Jour

SATURDAY, February 8, 1851.

The Senate resumed the consideration of the resolution submitted yeste day by Mr. Davis, of Massachusetts, in relation to the duration of an appointment made by the executive of a State to fill vacancies in the Senate, and after debate (which is found on pages 477, 478 of the Congressional Globe referred to),

Mr. Baldwin proposed the following resolution as an amendment to the resolution submitted by the Senator from Massachusetts:

"Resolved, That a Senator appointed by the executive of a State in consequence of the happening of a vacancy during the recess of the legislature is entitled to hold his seat under the temporary appointment of the executive until such vacancy is filled by the legislature at the next session thereof, and the person appointed to fill the same shall appear and be qualified therefor, pursuant to the requirement of the Constitution."*

[Remarks to the effect that nothing practical was before the Senate, Mr. Winthrop having vacated his seat and Mr. Rantoul not having appeared, are found on page 478 of the Congressional Globe referred to.]

On motion by Mr. Hale,

Ordered, That it lie on the table.

*This resolution is taken from the Congressional Globe. It does not appear in the Senate Jour nal.

[Thirty-second Congress-Second session.]

ARCHIBALD DIXON,

Senator from Kentucky from December 20, 1852, till March 3, 1355.

December 15, 1851, Henry Clay addressed a letter to the general assembly of Kentucky resigning his seat in the Senate, "to take effect on the first Monday of September, 1852." December 30, 1851, Archibald Dixon was elected by the legislature to fill that unexpired term. June 29, 1852, during the recess of the legislature, Henry Clay died. July 6, the governor appointed David Meriwether Senator "until the time the resignation of Henry Clay takes effect." Mr. Meriwether's credentials were presented and he took his seat July 15, and held it until Congress adjourned August 31. Decem ber 6, the Senate reassembled, Mr. Meriwether did not appear, and Mr. Dixon appeared and presented his credentials. Objection was made to his taking the oath of office, on the ground that the seat belonged to Mr. Meriwether; that Mr. Meriwether had been appointed to fill a vacancy happening by the death of a Senator, and that he had a right to the seat until the next meeting of the legislature, and that it was not in the power of the governor to limit.his term of office to the first Monday in September, 1852. The seat was vacant until December 20, when the Senate by a vote of 27 yeas to 16 nays resolved that Mr. Dixon had been duly elected "to fill the vacancy in the Senate occasioned by the resignation of the Hon. Henry Clay, and was entitled to a seat therein."

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journals, 1st and 2d sess. 32d Cong., 1851-52 and 1852-'53. There being no report of a committee in the case, an extract from the remarks of Mr. Rusk (page 93 of the Congressional Globe, vol. 26, 2d sess. 82d Cong., December 20, 1852) is given, which states briefly the main points under discussion by the Senate.

Special references to each day's debates on the subject, most of which are found within pages 1-96 of the Congressional Globe above referred to, are inserted below.

[Extract from remarks of Thomas J. Rusk, of Texas, in Senate, December 20, 1852.] "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 resigned 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 3d day of March, 1855. The legislature then adjourned. On the 29th 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.

"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 vacate 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 vancancy 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