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.

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."—Constitution of New Hampshire, page 23.

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.

THURSDAY, August 3, 1854.

The Senate proceeded to consider the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams, appointed a Senator by the governor of the State of New Hampshire, to continue to hold his seat in the Senate under that appointment; and,

After debate, in concurrence therewith,

Resolved, That "the right of representation under appointment" had expired. [No debate of any importance is recorded in the Congressional Globe.]

FRIDAY, August 4, 1854.

On motion by Mr. Dodge, of Iowa, to reconsider the vote agreeing to the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams to hold his seat in the Senate, under his present appointment, as a Senator from New Hampshire, it was determined in the affirmative-yeas 19, nays 16.

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

Those who voted in the affirmative are Messrs. Atchison, Bayard, Bell, Brodhead, Butler, Chase, Dawson, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Fitzpatrick, Houston, Johnson, Jones of Iowa, Mallory, Mason, Norris, and Weller.

Those who voted in the negative are Messrs. Allen, Benjamin, Bright, Cooper, Fish, Gillette, Hunter, James, Jones of Tennessee, Pratt, Rockwell, Seward, Stuart, Thompson of Kentucky, Toombs, and Wade.

So the Senate proceeded to consider the said report.

On motion by Mr. Cass that the further consideration of the report be postponed until the first Monday in December next, it was determined in the negative-yeas 11, nays 37. On motion by Mr. Atchison, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Atchison, Dodge of Wisconsin, Dodge of Iowa, Douglas, Houston, Johnson, Jones of Iowa, Mallory, Pettit, Sebastian, and Toombs.

Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, Bright, Brodhead, Brown, Butler, Cass, Chase, Clay, Cooper, Dawson, Evans, Fessenden, Fish, Foot, Geyer, Gillette, Hunter, James, Jones of Tennessee, Mason, Morton, Pearce, Pratt, Rockwell, Rusk, Seward, Slidell, Stuart, Sumner, Thompson of Kentucky, Thomson of New Jersey, Toucey, Wade, Walker, and Weller.

After debate, in concurrence with the report, it was

Resolved, That "the right of representation under the appointment " had expired. [It appears from the debate referred to in the head-note that the vote was reconsidered in order to allow Mr. Williams, who had been absent when the subject was first considered, to a dress the Senate.]

[Forty-sixth Congress-First session.]

CHARLES H. BELL,

Senator from New Hampshire from April 10, 1879, till June 20, 1879.

March 18, 1879, the credentials of Mr. Bell, appointed by the governor to fill a vacancy happening during the recess of the legislature, by the expiration of the term of Bainbridge Wadleigli, March 3, were presented. March 19, the credentials were referred to the Committee on Privileges and Elections. April 2, 1879, the committee reported that by reason of a change in the State constitution in 1878, two legislatures were chosen in that year, one, under the old constitution, in March, whose term of office began in June, 1878, and would terminate in May, 1879, and the other, under the new constitution, chosen in November to serve for two years, whose term would begin in June, 1879; that in the Forty-fifth Congress this committee had reported to the Senate that the last-named legislature was the one entitled to elect under the act of July 25, 1866; that the vacancy arising under these circumstances was not a vacancy "happening by resignation or otherwise during the recess of the legislature of any State" (Article I, section 3, of the Constitution); that until the year 1817 persons appointed to fill vacancies arising from the expiration of terms of service had been admitted to seats; but that in 1825, in the Lanman case (see page 5), “it was held, and, in the opinion of this committee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term"; that this decision had been regarded by the Senate as final; that the case of Mr. Sevier (see page 7), in which it was claimed that the Senate had departed from the rule in Lanman's case, was in all material points different from the one under consideration, in that "the time when Mr. Sevier was to go out of office under his election was decided by lot." The committee recommended the adoption of a resolution that Mr. Bell was not entitled to the seat. A minority report held that there was no historical evidence to show whether the Lanman case decided that a governor could not fill a vacancy happening at the beginning of a term, or only that a governor could not lawfully make an appointment in anticipation before the vacancy had occurred; that the report in the Sevier case stated that the Lanman case proceeded upon the former ground; but that, with the exception of that statement, there is no indication that the Senate ever doubted the correctness of the construction of the Constitution that in a case where a Senator has been appointed by the executive after the happening of a vacancy by the expiration of the term without an election of a successor by the legislature, the person so appointed is entitled to the seat. April 10, the resolution reported by the committee was amended by striking out the word "not," and the Senate resolved that Mr. Bell was entitled to the seat.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 46th Cong., 1st sess., and the report of the committee from Senate Reports, 46th Cong., 1st sess., No. 1.

Special references to the debates of each day, which are found in the Congressional Record, vol. ix, part 1, are inserted below.

TUESDAY, March 18, 1879.

The Vice-President laid before the Senate the credentials of Charles H. Bell, appointed a Senator by the governor of the State of New Hampshire to fill the vacancy happening in the Senate of the United States by the expiration of the term of Bainbridge Wadleigh on March 3, 1879, during the recess of the legislature of said State; which were read. On motion by Mr. Wallace,

Ordered, That the credentials lie on the table.

[The debate is found on pages 2, 3 of the Congressional Record referred to in the head-note. In the remarks of Mr. Bell will be found a list of precedents.]

On motion by Mr. Wallace,

WEDNESDAY, March 19, 1879.

Ordered, That the credentials of Charles H. Bell be referred to the Committee on Privileges and Elections with instructions to report at as early a day as practicable.

WEDNESDAY, April 2, 1879.

Mr. Saulsbury, from the Committee on Privileges and Elections, to whom were referred the credentials of Charles H. Bell, appointed a Senator by the governor of the State of New Hampshire, submitted a report (No. 1) thereon accompanied by the following resolution:

Resolved, That Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire."

Mr. Hoar obtained leave to submit the views of a minority of the Committee on Privileges and Elections upon the credentials of Charles H. Bell; which were ordered to be printed to accompany the foregoing report.

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, Kernan, Bailey, Houston, Vance, Cameron of Wisconsin, Hoar, and Ingalls.]

IN THE SENATE OF THE UNITED STATES.

APRIL 2, 1879.-Ordered to lie on the table and be printed.

Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the following report:

The Committee on Privileges and Elections, to whom were referred the credentials of the Hon. Charles H. Bell, claiming a seat in the Senate as a Senator from the State of New Hampshire, have had the same under consideration, and ask leave to make the following report:

The term of Bainbridge Wadleigh, a Senator from the State of New Hampshire, expired by constitutional limitation on the 3d day of March, 1879, in a recess of the legislature, and on the 13th day of March, 1879, Mr. Bell was appointed in his place by the executive.

By reason of a change in the constitution of that State, which took effect in October, 1878, two legislatures were chosen in that year, one, under the old constitution, in March, whose term of office commenced in June, 1878, and will terminate in May, 1879; the other, under the new constitution, was chosen in November to serve for two years, the term commencing in June, 1879.

The Committee on Privileges and Elections of the Senate in the Forty-fifth Congress, to whom was referred the question which of these two bodies had the right to choose a successor to Mr. Wadleigh, was of opinion, and so reported to the Senate, that under the act of 1866 (Revised Statues, section 14) the last-named legislature was entitled to elect, because it was the legislature chosen next preceding the expiration of Mr. Wadleigh's term of service. In the opinion of the committee this report, and the action of the Senate in adopting it, are not important in the settlement of the question now presented. The Constitution of the United States, Article I, section 3, provides 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 one-third 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."

It has been noticed that this claimant bases his right to a seat in the Senate, not upon the fact that a term filled by the legislature of New Hampshire had become vacant during a recess of the legislature, but upon the fact that the executive claims the right to make a temporary appointment at the beginning of a term which the legislature has not undertaken to fill.

The committee cannot find in the Constitution any sufficient warrant for this claim. If we look at the provision authorizing the governor to make temporary appointments independently of its connection with the rest of the section, we think it is manifest that the authority is limited to filling vacancies which happen in a term which had been previously filled by the legislature. If it was intended to vest in the executive the power to make temporary appointments to terms for which no person had been chosen by the legislature, why should the words " happen by resignation or otherwise" have been added to the word "vacancies"? They certainly did not render it more comprehensive, and must have been designed to limit and restrict its meaning to vacancies occurring from accident or some unforeseen event. If any doubt, however, existed as to the meaning of the language referred to, when considered unconnected with the rest of the section, such doubts would be removed by construing the provisions of the section together. Applying to them the rules recognized for the construction of statutes and constitutional provisions, the committee are forced to the conclusion that the legislature alone is empowered to choose a Senator upon the expiration of a Senatorial term, and that the executive can only make temporary appointments to fill vacancies occurring in a term which has been previously filled. It is well known that in the convention which framed the Constitution this subject received careful consideration. After it had been determined that the States should have equal representation in the Senate, the manner of choosing Senators was considered; various propositions were submitted, and, among others, apcintments by the executives of the States. Finally it was determined to vest in the

legislature the power of choosing Senators, and in the executive the power to make temporary appointments, if vacancies should happen in the office after it had been filled, until such time as the legislature could again act. This, it seems to the committee, was the obvious intent of the Constitution, gathered not only from the language of the entire section under consideration, but also from the debates in the convention in reference to its provisions.

Nothing in the history of the Senate for the last fifty years is at variance with the views here presented.

The records of the Senate show that down to the year 1817 a number of appointments were made by State executives of persons to succeed Senators whose terms of service had expired, and that the persons so appointed were admitted to seats in the Senate.

The first case was that of William Cocke, of the State of Tennessee.

This State was admitted into the Union in 1796. In the month of August of that year, William Cocke and William Blount were chosen Senators in Congress by the legislature. By lot they were assigned to the first and second classes of the three classes directed to be formed by the article of the Constitution above quoted, and Mr. Cocke having drawn the term which expired on the 3d day of March, 1797, during a recess of the legislature, was appointed by the governor to be his own successor on the 22d of April, 1797, and he was admitted to a seat without objection.

The second case was that of Uriah Tracy, a Senator from the State of Connecticut, whose term expired on the 3d of March, 1801. Under an appointment by the governor he was admitted to a seat on the 4th day of March, 1801, after a heated discussion, and by a party vote of 13 to 10.

This precedent was followed on the next day by the admission of Mr. Hindman, of Maryland; by the admission of Mr. Condit, of New Jersey, in 1803; Mr. Anderson, of Tennessee, and Mr. Smith, of Maryland, in 1809; Mr. Cutts, of New Hampshire, in 1813; and Mr. Williams, of Tennessee, in 1817; all executive appointments to fill places made vacant by the expiration of full terms of service during recesses of legislatures, and all were admitted without discussion and without objection.

But in 1825 the term of James Lanman, of Connecticut, expired during a recess of the legislature. In anticipation of the vacancy he had been appointed by the governor as his own successor. His credentials were presented on the 4th day of March, 1825, and after a protracted debate the Senate refused to admit him to a seat. No record of this debate has been preserved, and the committee have not the advantage of the reasoning by which the Senate was guided in its action. Enough, however, remains to show that the Senate decided that a vacancy authorizing an appointment by the executive had not "happened" within the meaning of the Constitution. It was held, and, in the opinion of this committee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term; and it seems to the committee that this decision is clearly in accord with the spirit and meaning of the article of the Constitution already quoted.

This section confers upon the legislature the right, and imposes upon it the duty, of choosing Senators who are to serve for six years.

In every one of the States a legislature must be in session at some time preceding the expiration of a Senatorial term. We know as a fact that at the time of the adoption of the Constitution these sessions were mostly annual, and, as now, those not annual were biennial. After the first assignment of Senators to classes, the term of office was fixed, and, under the Constitution, would expire at a time certain. When, therefore, the first clause of the third section, first article of the Constitution directed that Senators should be chosen by the legislatures, it appears most manifestly to have been the purpose of its framers to give exclusive power to the legislature to make the choice, unless, as provided by the last clause, vacancies should "happen" by resignation, or otherwise, during a recess of the legislature, when the executive should make temporary appointments until the next session of the legislature.

The power to make temporary appointments was conferred upon the executive because the accidents of death, resignation, expulsion, or acceptance of another office could not be foreseen or provided for by the legislature. In the one class of cases the time when a term would expire was fixed by law and was well known. There could be no doubt or uncertainty in regard to it, and in such case a vacancy could occur only by the willful disregard by the State in framing its organic law, or by the legislature, of constitutional obligations. In such case a vacancy could not "happen," or occur by chance, casualty, or other event that could not be guarded against.

The decision in Lanman's case has been for more than fifty years regarded as a correct exposition of the Constitution. During this long lapse of years its authority has not been questioned, and it has guided the action of legislatures and of executives of States.

Many cases have occurred when, under like circumstances, for months, and in some instances for one or two years, and even a longer time, States have been represented upon