day of March, 1885, and your legislature, as I understand it, continued to sit a long time after that date and had the opportunity to fill the vacancy, so that the vacancy did not happen during a recess of the legislature, and it now only exists because the legislature failed in its duty of keeping its Senatorial representation full.

"If we construe this clause of the Constitution as some Democratic Presidents have the corresponding clause respecting the President filling vacancies in offices, so as to make it mean that if vacancies happen to exist during any recess the governor may fill them, it would be an indefinite power to be exerted just so long as the legislature failed, which is not according either to the language or spirit of the Constitution. But, however we may reason about it, the Senate will be obliged to reverse its repeated decisions on the subject in order to admit a Senator appointed by the governor under such circumstances. Trusting that in some way a Republican Senator from Oregon may be preserved to us at a time when the only security for safe and conservative government lies within the Senate.

"I am, very truly, yours,

GEORGE F. EDMUNDS.'

"Will the Senate read the opinion of this great constitutional lawyer out of the record and trample his words under foot?

"In this connection I desire to call special attention of the Senate to the case of Kensey Johns, which arose in 1794, only five years after the organization of the first Senate, in which body there were a considerable number of members who had previously been members of the Constitutional Convention, and, of course, participated in the framing of this provision of the Constitution, and whose opinions, therefore, should command great weight. It is said

"That contemporary construction put upon the language or meaning of a constitution at the time of its adoption, or shortly after, by members of the convention which framed it, is properly resorted to to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause.'

"The opinion of members of the Senate at that time, who were members of the Constitutional Convention, ought, therefore, to come to us with very great force. "The Senator from Wisconsin [Mr. Spooner] very well said recently, in his remarks on this case, in reply to the Senator from Maryland [Mr. Wellington]: "He has invoked the lessons and the actions of the past. I agree with him that profound respect is to be accorded to the action of prior Senates. I agree with him that the men who acted in this body near the time of the adoption of the Constitution knew quite as much about it as we who come here many, many years after its adoption.'

"The Senator then called the attention of the Senator from Maryland to a case which occurred in 1809, the Smith case, and said:

"No man in that body-it was only twenty years after the adoption of the Constitution, and, I suppose, or have supposed, they knew as much about the Constitution in 1809 as we do in 1900, and cared as much for their obligation to support it as we do.'

"If the opinion of members of the Senate twenty years after the organization of the Government come to the Senator from Wisconsin with so much force, how convincing must be the opinion of the Senate only five years after its organization, when nearly one-fourth of its membership consisted of gentlemen who had been members of the Constitutional Convention? Let me invoke, therefore, the attention of the Senate particularly to this case.

"George Read, a Senator from the State of Delaware, resigned his seat in the United States Senate on the 18th day of December, 1793. The legislature of the State met in January, 1794, and adjourned in February thereafter without filling the

vacancy.

"On the 19th of March, 1794, the governor appointed Kensey Johns. There had been a meeting of the legislature between the resignation and the appointment. His credentials were referred to the Committee on Elections of the Senate, consisting of seven members, which committee reported, with only one dissenting vote, that the governor had no power to make the appointment, and Mr. Johns was rejected. True, that was not an appointment by the governor at the beginning of a term, but the same principle was involved, namely, that where the legislature has the opportunity to fill a vacancy happening in the representation of the State in the Senate of the United States, and fails to perform its duty in this regard for any reason, the governor has no power to appoint.

"The determination of the Senate in that case ought to appeal to us with very great force. It came up and was decided within five years after the inauguration of the Government, when Washington was in the executive chair and the men who

had participated in the Constitutional Convention were still alive and whose opinions were undoubtedly sought and must have been potential in shaping the judgment of the Senate. More than that, in that very Senate sat several Senators who were members of the Constitutional Convention which considered and framed these provisions of the Constitution now in controversy, and certainly they ought to have known, and unquestionably did know, just what these provisions meant.

'There was Pierce Butler, of South Carolina, a Delegate in the old Congress and the first Senator from that State; Oliver Ellsworth, of Connecticut, who had served in the old Congress, been a judge of the superior court, elected a Senator from that State, afterwards appointed Chief Justice of the Supreme Court of the United States by President Washington, and subsequently became minister to France; Rufus King, of Massachusetts, a Delegate in the old Congress, member of the State legislature, who subsequently became a Senator from the Empire State and minister to England; John Langdon, of New Hampshire, of legislative experience in the old Congress, elected to the Senate in 1789, and became President pro tempore of that body; and Alexander Martin, of North Carolina, speaker of the State Senate and governor of his State.

"All these Senators who participated in the work of framing the Constitution of the United States voted that Mr. Johns was not entitled to a seat, and admission was refused him by a vote of 20 to 7. It is no violent presumption to assume that these Senators, who were members of the Constitutional Convention and participated in its formation, knew what they were doing when they voted that the governor had no power to appoint Kensey Johns.

"I desire to read from the Official Record, the Annals of Congress, Third Congress, the proceedings of the Senate in this case in detail.

"Monday, March 24, 1794.

"Kensey Johns appeared and produced his credentials of an appointment by the governor of the State of Delaware as a Senator for the United States, which were read. Whereupon, it was moved that they be referred to the consideration of the Committee of Elections before the said Kensey Johns should be permitted to qualify, who are directed to report thereon; and it passed in the affirmative.

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"Thursday, March 27.

'The Senate proceeded to the consideration of the report of the Committee of Elections, to whom was referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States. On motion that the report be recommitted, it passed in the negative; and, after progress, it was ordered that the further consideration of this report be postponed until to-morrow.

"Friday, March 28.

"The Senate resumed the consideration of the report of the Committee of Elections, to whom was referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States; which report is as follows:

"The Committee of Elections, to whom was referred the credentials of an appointment by the governor of the State of Delaware of Kensey Johns as a Senator of the United States, having had the same under consideration, report:

666

"That George Read, a Senator for the State of Delaware, resigned his seat upon the 18th day of December, 1793, and during the recess of the legislature of said State. "That the legislature of the said State met in January and adjourned in February, 1794.

"That upon the 19th day of March, and subsequent to the adjournment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the vacancy occasioned by the resignation aforesaid.

66666

Whereupon the committee submit the following resolution:

"Resolved, That Kensey Johns, appointed by the governor of the State of Delaware as a Senator of the United States for said State, is not entitled to a seat in the Senate of the United States, a session of the legislature of said State having intervened between the resignation of the said George Read and the appointment of the said Kensey Johns.""

"On the question to agree to this report it passed in the affirmative—yeas, 20; nays 7.'

From this report of the Committee on Elections, which consisted of Bradley, Elsworth, Mitchell, Rutherford, Brown, Livermore, and Taylor, it will be observed

that the committee reported against the right of Kensey Johns to a seat, upon the express ground that—

"A session of the legislature of the said State having intervened between the resignation of the said George Read and the appointment of the said Kensey Johns.' "That being the case, it was the duty of the legislature to elect. The report was adopted by the Senate by a vote of 20 yeas to 7 nays. It is worthy of note in this connection that the Committee on Elections, which gave this case special preliminary consideration, consisted of seven Senators, among whom was Elsworth, who was one of the most conspicuous members of the Constitutional Convention and of whom the distinguished Senator from Massachusetts [Mr. Hoar] very properly said the other day in debate:

"Than whom there was no greater statesman and constitutional lawyer on the face of the earth anywhere.'

"And he, as a member of this committee, not only reported against the right of the governor to appoint in that case, but on the final vote in the Senate voted to keep the seat empty and that the State should go unrepresented of one Senator until a Senator had been properly elected. He did not regard it so important to keep the Senate full, even when it consisted of but thirty members, as to admit to membership anyone not lawfully commissioned. Elsworth, it must be remembered, was not only the 'greatest lawyer on earth,' and a member of the Constitutional Convention, but he was also a member of the committee of detail to amplify and give expression to the principles of government which the convention had adopted, and was, therefore, specially qualified to speak, and his opinion in this case comes to us with peculiar force. It is not saying too much of Mr. Elsworth that he was not only one of the most active members of the Constitutional Convention, but one of the most influential, and when he gave his interpretation of this provision of the Constitution, it ought to come home to the members of the Senate to-day, as it did to the Senate then, with convincing power.

"Mr. President, we have reached a crisis in the history of the Senate fraught with the utmost peril, not only to the Senate but to the country. The eyes of the nation are upon us. What we do to-day will not be overlooked or forgotten. We can not change front unnoticed. We are not sitting behind closed doors. The Senate can not afford to reverse its record of one hundred and eleven years. It can not afford to reject a claimant for a seat to-day and, on the same state of facts, admit another claimant to-morrow. It can not afford to give credence to the charge that the Senate of the United States is, after all, but a social club, where good-fellowship is a better credential than a certificate of election in conformity to law. In a word-we can not afford to do that which defies all precedent, strikes a fatal blow to the perpetuity of the Senate as constituted under existing forms of law, and shakes public confidence in the integrity of this body.

"But 'to this issue it has come at last.' The long and unbroken line of precedents, stretching over a century of national history, builded by the considerate judgment and patriotic solicitude of the great men who have gone before us, strengthened by the approving judgment of the Senate but two years ago, which has stood through all these years as a bulwark against the assaults of partisan zeal and the more insidious assaults of favoritism, is at last to be broken down and demolished, and this great council of States exposed to political intrigue and the machinations of ambitious men.

"Mr. President, when this work of demolition has been consummated, if it must be, and the people realize that the Senate, trampling under foot the precedents of a century, has solemnly adjudged that it will receive into its membership the appointees of governors whenever the legislature fails to elect or can be prevented from choosing a Senator; that governors may fill the seats in this Chamber whenever vacant for any cause, though themselves conspirators to produce vacancies; that the Senate itself, with the cooperation of State executives, will hereafter make up the membership of this body out of their personal or political friends, independent of the legis latures and regardless of the will of the people-when that time comes, I repeat, there will come with it the remedy, swift and complete. The people will not submit to it. They ought not to submit to it. They are wedded to representative government and they will not permit it to be subverted. There is yet a power mightier than Senates, more potent than Senators--a power that can make and unmake both. “And let me say to Senators that no sooner shall you establish the doctrine contended for by the minority than there will be a popular uprising in this country which no power can resist or suppress to take from State legislatures and governors all control over the election of Senators and lodge it with the sovereign people. Already 34 States, through their legislatures, have demanded it. The House of Representatives has repeatedly proposed it.

"I implore Senators therefore to follow the beaten path of the century, in the footsteps of Elsworth, Benton, Vance, Cass, Bayard, Hill, Davis, Garland, Cameron, Douglas, Mason, Blaine, Edmunds, Conkling, Carpenter, and the long line of illustrious men whose genius and learning illumines the way, and so save the Senate from public scandal and reproach, restore and preserve its ancient dignity, and insure the perpetuity of representative government.”

WEDNESDAY, April 4, 1900.

The Secretary read the resolution reported from the Committee on Privileges and Elections January 23, 1900, as follows:

"Resolved, That the Hon. Matthew S. Quay is not entitled to take his seat in this body as a Senator from the State of Pennsylvania."

Mr. Chandler moved to amend the resolution by striking out the word “not.” (Cong. Rec., vol. 33, p. 3732.)

TUESDAY, April 24, 1900.

The President pro tempore announced that the motion before the Senate was that offered by Mr. Chandler to strike out the word "not" from the pending resolution. The amendment was rejected by the following vote:

Ayes-Messrs. Allison, Baker, Carter, Chandler, Clark (Wyo.), Cullom, Daniel, Davis, Deboe, Foraker, Frye, Gear, Hansbrough, Jones (Nev.), McComas, McLaurin, Mason, Morgan, Nelson, Penrose, Perkins, Platt (N. Y.), Scott, Sewell, Shoup, Spooner, Stewart, Sullivan, Taliaferro, Warren, Wetmore, and Wolcott-32.

Nays-Messrs. Allen, Bacon, Bard, Bate, Berry, Burrows, Butler, Clay, Cockrell, Culberson, Hale, Harris, Hawley, Heitfeld, Jones (Ark.), Lindsay, McBride, McCumber, McEnery, McMillan, Martin, Money, Platt (Conn.), Proctor, Quarles, Ross, Simon, Teller, Tillman, Turley, Turner, Vest, and Wellington-33.

A vote was then taken on the adoption of the resolution reported by the Committee on Privileges and Elections, and the same was agreed to by the following vote: Ayes-Messrs. Allen, Bacon, Bard, Bate, Berry, Burrows, Butler, Clay, Cockrell, Culberson, Hale, Harris, Hawley, Heitfeld, Jones (Ark.), Lindsay, McBride, McCumber, McEnery, McMillan, Martin, Money, Platt (Conn.), Proctor, Quarles, Ross, Simon, Teller, Tillman, Turley, Turner, Vest, and Wellington-33.

Nays-Messrs. Allison, Baker, Carter, Chandler, Clark (Wyo.), Cullom, Daniel, Davis, Deboe, Foraker, Frye, Gear, Hansbrough, Jones (Nev.), McComas, McLaurin, Mason, Morgan, Nelson, Penrose, Perkins, Platt (N. Y.), Scott, Sewell, Shoup, Spooner, Stewart, Sullivan, Taliaferro, Warren, Wetmore, and Wolcott-32. (Cong. Rec., vol. 33, pp. 4612, 4613.)

[Fifty-sixth Congress, First and second sessions.]

MARTIN MAGINNIS v. WILLIAM A. CLARK, of Montana.

After the resignation by William A. Clark of his seat in the Senate as a Senator from the State of Montana (see case of William A. Clark, of Montana, supra), the lieutenant-governor and acting governor of the State of Montana, on the 15th day of May, 1900, appointed William A. Clark to fill the vacancy caused by the resignation of Mr. Clark. The governor of the State of Montana, claiming that this appointment was brought about by fraud and collusion, revoked the appointment, and on the 19th day of May, 1900, appointed Martin Maginnis to fill the vacancy aforesaid.

The conflicting claims of Mr. Clark and Mr. Maginnis were laid before the Senate, and a resolution was introduced in the Senate May 25, 1900, to refer the credentials of the claimants to the Committee on Privileges and Elections, but no action was taken on this resolution. Mr. Clark did not appear or attempt to claim a seat in the Senate otherwise than by the presentation of his credentials, and the Senate took no action in regard to determining the title of either of the claimants to the seat made vacant by the resignation of Mr. Clark.

The question involved in the case was which appointment was legal and valid, the one made by the lieutenant-governor or the one made by the governor of the State of Montana. This question was not decided by the Senate either directly or indirectly by any action of the Senate in the case. The history of the case here given consists of the proceedings of the Senate in the case as published in the Congressional Record, a statement of the days on which the resolution to refer the matter to the Committee on Privileges and Elections was debated in the Senate, with a reference to the pages of the Congressional Record containing the same.

PROCEEDINGS IN THE SENATE.

SATURDAY, May 19, 1900.

The President pro tempore laid before the Senate the following telegram from the governor of Montana:

"Hon. WILLIAM P. FRYE,

"BUTTE, MONT., May 18, 1900.

"President of the United States Senate, Washington, D. C.

"SIR: This will inform you and the Senate of the United States that on account of collusion and fraud by Hon. W. A. Clark in resigning and securing an appointment to the Senate by the lieutenant-governor, I have this day disregarded and revoked said appointment by the lieutenant-governor, and have this day appointed Hon. Martin Maginnis, of Montana, United States Senator, to fill the vacancy caused by the resignation of Hon. W. A. Clark. His credentials will be forwarded in due course. "ROBT. B. SMITH,

Governor of Montana.”

TUESDAY, May 22, 1900.

Mr. Carter presented the following credentials; which were read and laid on the table:

STATE OF MONTANA, EXECUTIVE CHAMBER, Helena, Mont., May 15, 1900. "Whereas a vacancy has occurred in the representation of the State of Montana in the Senate of the United States, caused by the resignation of Senator William Andrews Clark; and

"Whereas the legislature of said State is not in session, but in recess; "Therefore, be it known that, pursuant to the power vested in me by the Constitution of the United States, I, A. E. Spriggs, the lieutenant-governor and acting governor of said State, do hereby apoint William Andrews Clark, a citizen and inhabitant of said State, to be a member of the Senate of the United States, to fill the vacancy so caused and existing as aforesaid, to have and to hold the said office and membership until the next meeting of the legislature of this State.

"In witness whereof I have hereunto set my hand and affixed the great seal of said State, at the city of Helena, in said State, this 15th day of May, A. D. 1900.

"[SEAL.]

"By his excellency the acting governor:

"T. S. HOGAN, Secretary of State."

(Cong. Rec., vol. 33, p. 5850.)

A. E. SPRIGGS, Acting Governor.