[The debate is found on pages 184-189 of the Congressional Record referred to in the head-note.]

The Senate resumed, &c.

MONDAY, April 7, 1879.

The question being on the amendment proposed by Mr. Hoar.

[The debate is found on pages 273-286 of the Congressional Record referred to in the head-note.]

The Senate resumed, &c.

TUESDAY, April 8, 1879.

The question being on the amendment proposed by Mr. Hoar.

[The debate is found on pages 287-298 of the Congressional Record referred to in the head-note.]

The Senate resumed, &c.

WEDNESDAY, April 9. 1879.

The question being on the amendment proposed by Mr. Hoar. [The debate is found on pages 312-325 of the Congressional Record referred to in the head-note.]

THURSDAY, April 10, 1879.

The Vice-President announced that the morning hour had expired, and called up the unfinished business of the Senate at its adjournment yesterday, viz, the resolution reported from the Committee on Privileges and Elections, April 2, 1879, declaring "that Charles H. Bell is not entitled to a seat as Senator by virtue of the appointment by the executive of New Hampshire"; and

The Senate resumed the consideration of the resolution; and

The question being on the amendment proposed by Mr. Hoar, viz: After the word "is" strike out the word "not,"

After debate, it was determined in the affirmative-yeas 35, nays 28.

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

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt, Plumb, Randolph, Rollins, Saunders, Teller, Voorhees, Walker, White, and Williams.

Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ransom, Slater, Vance, Vest, Wallace, and Withers.

So the amendment was agreed to.

On the question to agree to the resolution as amended, as follows:

"Resolved, That Hon. Charles H. Bell is entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire,"

It was determined in the affirmative-yeas 35, nays 28.

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

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt, Plumb, Randolph, Rollins, Saulsbury, Saunders, Teller, Voorhees, Walker, Whyte, and Williams.

Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ransom, Slater, Vance, Vest, Wallace, and Withers.

So the resolution as amended was agreed to.

Mr. Charles H. Bell then appeared, and the oath prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate.

[The debate is found on pages 341-355 of the Congressional Record referred to in the head-note.]

MILEAGE OF MR. BELL.

THURSDAY, June 19, 1879.

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

"Resolved, That the Secretary of the Senate and a hereby is, authorized and

directed to pay Hon. Charles H. Bell mileage at the rate allowed by law for attendance at this session, the same to be paid out of the 'miscellaneous items' of the contingent fund."

FRIDAY, June 20, 1879.

Mr. Rollins presented the credentials of Henry W. Blair, elected a Senator by the legislature of New Hampshire for the unexpired portion of the term of six years commencing March 4, 1879; which were read.

Mr. Blair then appeared, and the oath prescribed by law having been administered to him by the President pro tempore, he took his seat in the Senate.

[Special session of Senate, March, 1885.]

HENRY W. BLAIR,

Senator from New Hampshire from June 20, 1879, to March 3, 1891.

March 9, 1885, the credentials of Mr. Blair, appointed by the governor to fill a vacancy happening during the recess of the legislature by the expiration of his previous term, March 3, were presented. A motion that the credentials be referred to the Committee on Privileges and Elections was determined in the negative. A resolution was then submitted that he be admitted to take the oath of office, which was agreed to March 10. It appears from the debates that the case presented the same questions presented by the case of Charles H. Bell (see page 26); that a legislature was elected in November, 1882, to serve for two years, whose term of office began in June, 1883; that another legislature was elected in November, 1884, to serve for two years, whose term of office would begin in June, 1885; that the legislature elected in 1882, acting in accordance with its interpretation of the act of July 25, 1866, and in accordance with a report of this committee made in the Forty-fifth Congress on the same subject, had not elected a successor to Mr. Blair; that the question was whether a vacancy arising under such circumstances was a vacancy "happening by resignation or otherwise. during the recess of the legislature of any State." (Article I, section 3, of the Constitution.) Extracts from remarks given below will show the grounds upon which different Senators proceeded. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 48th Cong., 2d sess. (special session, March and April, 1885), and extracts from remarks of Senators.

The debates are found in the Senate proceedings of March 9 and 10, 1885, in the Congressional Record, vol. xvii, part 1, pages 4 to 6 and 16 to 26.

MONDAY, March 9, 1885.

Mr. Pike presented the credentials of Henry W. Blair, appointed a Senator by the governor of New Hampshire to fill the vacancy in the representation from that State happening March 4, 1885, during the recess of the legislature.

The credentials were read; and,

On motion by Mr. Vest that they be referred to the Committee on Privileges and Elections, it was determined in the negative.

Mr. Hoar thereupon submitted the following resolution:

"Resolved, That Henry W. Blair, appointed a Senator from the State of New Hampshire, be now admitted to take the oath of office,"

When,

On motion by Mr. Harris, and by unanimous consent,

Ordered, That the consideration of the resolution be postponed to to-morrow.

TUESDAY, March 10, 1885.

The Vice-President laid before the Senate the resolution yesterday submitted by Mr. Hoar, that Henry W. Blair be now admitted to take the oath of office as a Senator from the State of New Hampshire; and

On the question to agree to the resolution,

After debate, it was determined in the affirmative-yeas 36, nays 20.

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

Those who voted in the affirmative are Messrs. Aldrich, Allison, Cameron, Chace, Conger, Cullom, Dawes, Edmunds, Evarts, Frye, Hale, Harrison, Hoar, Ingalls, Jones of Florida, Jones of Nevada, McMillan, Mahone, Manderson, Miller of California, Miller of New York, Mitchell, Morrill, Palmer, Pike, Platt, Riddleberger, Sabin, Sawyer, Sewell, Sherman, Spooner, Stanford, Teller, Van Wyck, and Wilson.

Those who voted in the negative are Messrs. Beck, Blackburn, Camden, Cockrell, Coke, Eustis, Gibson, Gorman, Jackson, Jones of Arkansas, Kenna, McPherson, Maxey, Morgan, Payne, Pugh, Ransom, Saulsbury, Vance, and Vest.

So the resolution was agreed to.

Mr. Henry W. Blair then appeared, and the oath prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate.

Extract from remarks of Mr. Vest, of Missouri, in opposition to the resolution submitted by Mr. Hoar that Mr. Blair be admitted to take the oath of office. Found in the proceedings of March 10, 1885, in the Congressional Record, vol. xvii, part 1, p. 16.]

"Mr. President, yesterday I asked that the resolution should go over until to-day in order that it might be examined by the new Senators just sworn into this body, and in

order that those of us who were members at the time the Bell case was under discussion and was determined should have an opportunity to refresh our recollection in regard to the points then made and discussed. It is not my purpose to enter into a lengthy résume of that argument then so exhaustively made. I simply wish to say now that I reaffirm what was my conclusion then as a lawyer in regard to this subject.

"I voted on the Bell case that Mr. Bell was not entitled to a seat in this body; that the governor of a State had no right to fill an entire term by original appointment; that the meaning of the Constitution, which declares 'if vacancies happen by resignation or otherwise, during the recess of the legislature of any State' the executive authority of a State may make a temporary appointment, is that when a vacancy shall occur, not by operation of law, but by some event which applies to the individual asking for the office or applying for admission into this body, by the resignation of a person, by death operating upon him, and that the word 'otherwise' in that connection means by similar casualty-when a vacancy shall happen, when it shall occur, not by operation of statute or of any constitution, but when it occurs by resignation, death, or otherwise.

"The terms of the Constitution as originally made and I shall be very brief in the discussion of the subject, for I only propose to give my own reasons for casting my vote-the terms of the Constitution are:

"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 vacancy.'

'There are three clauses in the Federal Constitution in which the word 'happen' is used. First, in Article II, section 2, the Constitution says:

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.'

"Article I, section 2, provides:

"When vacancies happen in the representation from any State, the executive author ity thereof shall issue writs of election to fill such vacancies.'

"Article I, section 3, which is the clause now under discussion, provides: "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.'

"In all three of these clauses the word 'happen' is used, but I call the attention of the Senate to the fact that in the first two clauses in regard to vacancies in the House of Representatives and vacancies during a recess of the Senate as to executive officers, the word 'happen' is without limitation, 'where vacancies shall happen,' and there is the termination of the power of the President in regard to executive appointments; but in regard to Senators the Federal Convention put a limitation upon the word 'happen.' They did not stop with declaring where vacancies may happen during a recess of a legislature that then the governor may appoint, but where a vacancy shall happen by resignation or otherwise.

"If the Senators now present are correct who claim the power of a governor to exist to appoint in these cases, we are forced to the conclusion that the words 'by resignation or otherwise' are void and meaningless as used by the framers of the Constitution, or else that the terms are a limitation upon the word 'happen.' They are not found in the other two clauses of the Constitution. What makes this argument more significant and conclusive to my mind is that the original draught of the Constitution, which I have before me, and the debates show that the clause as originally reported to the convention of 1787 was absolute and unlimited, when a vacancy should occur, and Mr. Madison moved to put in these terms of limitation, that where the vacancy should occur by resignation or otherwise, or equivalent terms, then the governor of the State might appoint.

"I know it has been said that contemporaneous construction at the time militates against this view. In the debate which occurred in the Bell case an editorial was read from the National Intelligencer of March 8, 1825, and it was said that this had been adopted. by Judge Story and by Mr. Gordon, who was compiling a book in regard to the proceedings of Congress at that time. The most authoritative statement in regard to the meaning of Congress and the debates of Congress at that time is found in Niles's Register, the authority of which I take it will not be questioned on this floor. In Niles's Register I find the following:

"The following members'

"Says the Register of March 12, 1825

"The following members, also re-elected for six years from this day, took the oath of office, namely: Mr. Lloyd, of Maryland; Mr. Macon, of North Carolina; Mr. Guillard, of South Carolina; Mr. J. Š. Johnston, of Louisiana; and Mr. Barton, of Missouri.

'Some conversation took place on the case of Mr. Lanman, reappointed by the governor in the recess of the legislature, the question being, whether a failure by the legis 79908-S. Doc. 1036, 62-3--5

lature to make a choice of a Senator constitutes the contingency in which a governor may appoint a Senator, the language of the Constitution being, "if vacancies happen, by resignation or otherwise," &c.'

"It is said, and conspicuously by the Senator from Massachusetts [Mr. Hoar], that the quotation in the National Intelligencer and in the book by Gordon showed that the Lanman case decided in 1825 did not touch this question, did not determine it, and that the Lanman case, a case from Connecticut, went off on the power of the governor to make an appointment before the vacancy existed. Niles's Register asserts emphatically that the very point now at issue before the Senate was decided in 1825. I know that other cases were decided antecedent to the Lanman case, but they were decided, I affirm, without discussion, without debate.

"In 1825 this precise case was brought before the Senate of the United States, and it was decided then that the governor could not appoint as to a full term. In 1825 for the first time this question was elaborately and exhaustively debated by the ablest lawyers then in the United States, and it was decided that the governor did not have the right to make such an appointment; and I say to-day, as was said in the Bell discussion, that from 1825 to the decision of the Bell case in 1879 not one solitary utterance was ever heard upon this floor or elsewhere which questioned the accuracy of the position I take here now. "I know it is said that the Sevier case from Arkansas, decided in'1837, antagonizes this view; but the report of Mr. Felix Grundy on the Sevier case asserted that that decision was not in antagonism to the Lanman decision, but that it was made upon the express ground that Sevier had drawn his seat by lot, and that therefore the term happen applied to that case; but Mr. Grundy expressly says, and I have his report before me as chairman of the Judiciary Committee, that the Lanman case was the precedent; that it decided the correct doctrine, and it was held so invariably until the decision of the Senate in 1879.

"Mr. Wadleigh, from New Hampshire, in discussing this very question admitted that the Lanman case was decisive of the whole matter. Says Mr. Wadleigh:

"The Senator from Ohio'

"Referring to Mr. Thurman

"The Senator from Ohio would have us believe that there is some doubt as to whether this legislature or the next is entitled to elect. That is a matter which greatly concerns the people of New Hampshire. It is desirable that that question should be settled at once, so that they may not put themselves in a position from which they cannot be extricated without great embarrassment. Accordingly a bill was presented to this body by the Senator from Wisconsin [Mr. Cameron] and referred to the Committee on Privileges and Elections, which reported unanimously that this legislature cannot elect the Senator, that the next legislature must elect. That shows to us clearly that unless this bill passes there must be a vacancy in this Senate from the State of New Hampshire for three months in the next Congress.'

"In other words, that the governor could not fill the vacancy; and there is upon the other side of this Chamber a succession of weighty authority in the same direction. Mr. Thurman asked:

"Is there any probability of Congress being in session during those three months? "Mr. WADLEIGH. I do not know about that.

"Mr. WHYTE. I ask the Senator from New Hampshire why the governor of New Hampshire cannot appoint for the vacancy until the legislature meets in June? 'Mr. BLAINE. He cannot do that if the previous term has fully expired.' "Which is the very case here.

"Mr. WHYTE. Suppose this legislature has power to elect and does not elect, is not that a vacancy?

"Mr. BLAINE. Then the power of the governor does not come in.

"Mr. WHYTE. It does, apparently.

"Mr. BLAINE. Not at all.

"Mr. DAWES. Every precedent of the Senate is against that.

"Mr. BLAINE. The Senator from Maryland is too good a lawyer to make that assertion.

"Mr. WADLEIGH. Having examined the precedents, I am inclined to think the governor cannot appoint.

666

'Mr. BLAINE. Of course the governor cannot appoint. Nothing is better settled than that. The honorable Senator from Ohio [Mr. Thurman] will give his assent to that, if the term has fully expired.'

"Never until the Bell decision by the Senate was any voice ever raised from 1825 to 1879 which gave to the governor of a State the right to fill a full term.

"I remember very well in the Bell discussion when Senator Conkling, of New York, put a question to Senator Hill, of Georgia, in regard to the power of the governor to fill the term. Senator Conkling said: 'If that power exists, the governor, by collusion