[Eleventh Congress-First session.]

SAMUEL SMITH,

Senator from Maryland from March 4, 1803, to March 3, 1815, and from December 17, 1822, to March 3, 1833.

On the expiration of Mr. Smith's first term, viz, March 3, 1809, the legislature of Maryland not having elected his successor, and not then being in session, he was appointed by the governor on March 4 to fill the vacancy until the next meeting of the legislature, which would take place on the 5th of June next. Thereupon Mr. Smith addressed a letter to the Senate, setting forth these facts, and submitting to its determination the ques ion whether the appointment would or would not cease on the first day of the meeting of the legislature. It was determined that he was entitled to hold his seat in the Senate during the session of the legislature, unless the legislature should fill such vacancy by the appointment of a Senator, and the Senate be officially informed thereof. Under these credentials Mr. Smith held his seat during the special session of the Senate March 4-7, 1809, and during the first session of the Eleventh Congress (May 22 to June 28, 1809). On the 16th of November following he was elected by the legislature, and on December 4, in the next session of Congress, he produced his credentials of election and the oath was administered.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1809-10, within pages 15–25. MONDAY, May 29, 1809.

The President laid before the Senate a letter from Mr. Smith, of Maryland, stating that being appointed by the executive of that State a Senator, in conformity with the Constitution, until the next meeting of the legislature, which will take place on the 5th day of June next, he submits to the determination of the Senate the question whether an appointment under the executive of Maryland to represent that State in the Senate of the United States will or will not cease on the first day of the meeting of the legislature thereof? And the letter was read; and,

After debate, it was agreed that the further consideration thereof be postponed until to-morrow.

TUESDAY, May 30, 1809.

The Senate resumed the consideration of the letter from Mr. Smith, of Maryland, communicated yesterday; and,

On motion of Mr. Giles, the further consideration thereof was postponed to the 5th of June next.

TUESDAY, June 6, 1809.

The Senate resumed the consideration of the letter of Mr. Smith, a Senator from the State of Maryland; and

Mr. Giles submitted a resolution, which was amended, and is as follows: "Resolved, That the Hon. Samuel Smith, a Senator appointed by the executive of the State 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."

On motion by Mr. Anderson to amend the motion by striking out all after the word "resolved," and inserting:

"That any Senator of this body who holds a seat under an executive appointment cannot, according to the provisions of the Constitution of the United States, be entitled to continue to hold his seat as a member of this body after the meeting of the legislature of the State from which such Senator may be a member,

And a division of the motion for amendment was called for, and the question having been taken on striking out, it passed in the negative; and,

The motion for amendment having been lost, the original motion was agreed toyeas 19, nays 6; as follows:

YEAS-Messrs. Anderson, Brent, Franklin, Gaillard, German, Giles, Gilman, Goodrich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Robinson, Smith of New York, Thruston, White, and Whiteside.

NAYS-Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner.

[Special session of Senate, March, 1825.]

JAMES LANMAN,

Senator from Connecticut from March 4, 1819, to March 3, 1825.

Mr. Lanman's term expired March 3, 1825. March 4, 1825, he produced credentials of appointment by the governor to fill the vacancy. The credentials of appointment were dated February 8, 1825, and set forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to the governor. They were "to take effect immediately after the 3d day of March, 1825, and to continue until the next meeting of the legislature." Exception being taken to the credentials, they were referred to a committee, who reported the facts as above. On motion that he be admitted, it was determined in the negative, the grounds on which the Senate proceeded not being given.

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. 18th Cong., 1824-25, within pages 272-283. A slightly fuller sketch of the debate than that here given may be found in Niles's Weekly Register, vol. 28, pages 31, 32.

FRIDAY, March 4, 1825.

The President laid before the Senate a letter from the Hon. James Lanman, inclosing the credentials of his appointment by the governor of Connecticut as a Senator of the United States, "to take effect immediately after the 3d day of March, 1825, and to continue until the next meeting of the legislature," and expressing his readiness to receive the usual qualifications.

The letter and credentials were read.

On motion by Mr. Holmes, of Maine, that Mr. Lanman be admitted to take the oath required by the Constitution, a debate ensued, and,

On motion,

Ordered, That the further consideration thereof be postponed until to-morrow.

SATURDAY, March 5, 1825.

The Senate resumed the consideration of the motion of yesterday, "that Mr. Lanman be admitted to take the oath required by the Constitution," and,

On motion by Mr. Eaton,

Ordered, That said motion, together with the credentials of Mr. Lanman, be referred to a select committee, to consist of three members, to consider and report thereon. Mr. Eaton, Mr. Edwards, and Mr. Tazewell were appointed the committee. Mr. Van Buren submitted the following motion for consideration:

"Resolved, That the Hon. James Lanman have leave to be heard at the bar of the Senate on the question as to his right to a seat therein under an appointment by the executive of Connecticut."

MONDAY, March 7, 1825.

Mr. Eaton, from the select committee to whom was referred, on the 5th instant, the motion "that Mr. Lanman be admitted to take the oath required by the Constitution," together with the credentials of Mr. Lanman, submitted the following report, which was read:

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Eaton, Edwards, and Tazewell.]

That Mr. Lanman's term of service in the Senate expired on the 3d March. On the 4th, he presented to the Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, setting forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to him.

The certificate of appointment is dated the 8th of February, 1825, subsequent to the time of notification to him by the President. The certificate further recites that, at the time of its execution, the legislature of the State was not in session, and would not be until the month of May.

The committee have looked into the Journals of the Senate to discover if they could find any authority or decision by them on this question; and the following have been found recorded:

"On the 27th of April, 1797, William Cocke was appointed a Senator from that State 79908-S. Doc. 1036, 62-3-3

by the governor of Tennessee; his term of service having expired on the 3d of the preceding March, and on the 15th of May took his seat, and was qualified.

"On the 3d of March, 1801, the seat of Uriah Tracy became vacant, the time for which he had been elected having expired. On the 20th of February preceding the governor of Connecticut reappointed him a Senator, and, in pursuance thereof, he was qualified and took his seat.

"Joseph Anderson, a Senator from Tennessee, was appointed by the governor a member of the Senate on the 6th of February, 1809, and on the 4th of March after took his seat; the period for which he had been elected having on the preceding day expired. "John Williams, of Tennessee, on the 20th of January, 1817, was appointed a Senator in Congress, to take his seat on the 4th of March, when the term for which he had been elected would expire. Mr. Williams appeared, was qualified, and took his seat." In none of these cases does it appear that there was any objection made, or question raised, except in 1801, in the case of Mr Tracy, when the vote was 13 for and 10 against the right of the member to take his seat. Those are the only analogous cases the committee have been able to find.

By reference to the statute laws of Connecticut the committee find that in that State there is a law upon this subject which is in the following words: "Whenever any vacancy shall happen in the representation of this State in the Senate of the United States, by the expiration of the term of service of a Senator, or by resignation or otherwise, the general assembly, if then in session, shall, by a concurrent vote of the senate and house of representatives, proceed to fill said vacancy by a new election; and in case such vacancy shall happen in the recess of the general assembly, the governor shall appoint some person to fill the same until the next meeting of the general assembly."

The Senate proceeded to consider the motion of the 5th instant, that the Hon. James Lanman have leave to be heard at the bar of the Senate on the question as to his right to a seat therein; and agreed thereto.

Mr. Edwards submitted the following motion; which was read:

“Resolved, That the Hon. James Lanman, appointed a Senator by the governor of the State of Connecticut, be now admitted to the oath required by the Constitution."

And on the question to agree thereto, it was determined in the negative—yeas 18, nays 23.

The yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Bell, Bouligny, Chase, Clayton, D'Wolf, Edwards, Harrison, Hendricks, Johnston of Louisiana, Kane, Knight, Lloyd of Massachusetts, M'Ilvaine, Mills, Noble, Rowan, Seymour, and Thomas.

Those who voted in the negative are Messrs. Barton, Benton, Berrien, Branch, Chandler, Dickerson, Eaton, Findlay, Gaillard, Hayne, Holmes of Maine, Holmes of Mississippi, Jackson, King of Alabama, Lloyd of Maryland, Macon, Marks, Ruggles, Smith, Tazewell, Van Buren, Van Dyke, and Williams.

[Special session of Senate, March, 1837.]

AMBROSE H. SEVIER,

Senator from Arkansas from December 5, 1836, to March 4, 1837, and from March 8, 1837, till he resigned, March 15, 1848.

The State of Arkansas was admitted into the Union in June, 1836. In October, 1836, the legisla ture of that State elected Ambrose H. Sevier and William S. Fulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired on the 3d of March, 1837. The legislature of Arkansas had no opportunity to fill the vacancy, not having been in session after the result of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. At the special session of the Senate in March the credentials were referred to the Committee on the Judiciary. The committee reported that as the time when Mr. Sevier was to go out of office was decided by lot, and as the legislature, not being in session after this decision, could not supply the vacancy, it came "fairly within the provision of the Constitution contained in the third section of the first article, which declares, and if vacancies happen by resignation or otherwise,' &c."; and reported a resolution that the oath required by the Constitution be administered to him. March 8 this resolution passed and Mr. Sevier took his seat. No debates on the adoption of the resolution are found. Under these credentials Mr. Sevier held the seat during the remainder of the special session March 8-10, during the first session of the Twenty-fifth Congress, September 4 to October 16, and from December 4-13 of the second session, when he presented credentials of eleotion (which had taken place November 7) for term ending March 3, 1843, and the oath was adminis

tered.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Congressional Globe, 2d sess. 24th Cong., pages 1 and 209, and during the special session from the Senate Journal, 2d sess. 24th Cong., 1836-37, within pages 358-367. No fuller account of the proceedings during the special session than that taken from the Senate Journal is found.

MONDAY, December 5, 1836.

Mr. Benton presented the credentials of the Hon. A. H. Sevier and W. S. Fulton, Senators-elect from the State of Arkansas. The Vice-President administered the oath prescribed by the Constitution of the United States, and they took their seats.

On motion by Mr. Benton,

Resolved, That the Secretary put into the ballot-box three papers of equal size, numbered 1, 2, 3. Each of the Senators from the State of Arkansas draw out one paper. No. 1, if drawn, shall entitle the member to be placed in the class of Senators whose terms of service will expire the 3d day of March, 1837; No. 2 in the class whose terms will expire the 3d day of March, 1839; and No. 3 in the class whose terms will expire on the 3d day of March, 1841.

In pursuance of the above order, Mr. Sevier drew from the ballot-box No. 1, and Mr. Fulton No. 3. Therefore Mr. Sevier's term expires on the 3d of March, 1837, and Mr. Fulton's on the 3d of March, 1841.

MONDAY, February 27, 1837.

Mr. Fulton presented the credentials of the Hon. Ambrose H. Sevier, appointed a Senator by the governor of Arkansas to fill the vacancy that will occur on the 4th of March next, for the term of six years.

Mr. Webster expressed his doubts as to the constitutionality of making an appointment, no vacancy having occurred.

Mr. Fulton remarked that he and his colleague were aware of this difficulty; but he (Mr. F.), supposing that it would be a matter for the next Senate to act upon, presented the credentials under that impression.

The Chair said that it was not for the Senate to consider the qualifications of Senators elected to the next Congress. That Congress must act on this subject.

Mr. Sevier said that he had very great doubt of the legality of the appointment, and did not at all doubt the patriotic motives which influenced the Senator from Massachusetts in expressing himself as he had done. Mr. S. cared not how the matter should be decided, one way or the other.

Mr. Webster was sure that the honorable Senator was very indifferent as to how the question might be decided, and would give him credit as to his motives in intimating that there might be some irregularity in the proceeding.

Mr. Sevier expressed himself quite satisfied with the course pursued by the honorable Senator from Massachusetts.

SATURDAY, March 4, 1837.

The Hon. Ambrose H. Sevier, whose credentials were read the 27th February, 1837, appearing for the purpose of being qualified, On motion by Mr. King, of Alabama,

Ordered, That the further consideration of the same be postponed to Monday next.

MONDAY, March 6, 1837.

The Senate resumed the consideration of the credentials of the Hon. Ambrose H. Sevier, and,

On motion by Mr. Fulton,

Ordered, That they be referred to the Committee on the Judiciary.

TUESDAY, March 7, 1837. Mr. Grundy, from the Committee on the Judiciary, to whom were referred the credentials of the Hon. Ambrose H. Sevier, submitted the following report:

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Grundy (chairman), Crittenden, Morris, King of Georgia, and Wall.]

The Committee on the Judiciary, to whom was referred the credentials of the Hon. Ambrose H. Sevier, have had the same under consideration, and submit the following report:

At the last session of Congress the State of Arkansas was admitted into the Union, and the legislature of that State, in the month of October, 1836, elected Ambrose H. Sevier and William S. Fulton Senators to represent the State in the Senate of the United States. It also appears that upon the allotment of the said Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, the said Ambrose H. Sevier was placed in the class of Senators whose term of service expired on the 3d day of March, 1837, and that the legislature of Arkansas have had no opportunity of filling the vacancy, not having been in session since the fact that the vacancy would occur could have been known in that State. The governor of the State of Arkansas on the 17th day of January last commissioned the said Sevier as Senator to fill the vacancy which would take place on the 3d of March. Upon this state of the case the question is presented whether the said Ambrose H. Sevier is entitled to his seat under the appointment made by the executive of the State of Arkansas? In looking into the practice of the Senate upon the subject of executive appointments, no case like the present has been found. Several cases have occurred in which the executives of different States in anticipation of the expiration of the regular term of service have appointed Senators (the legislatures not being in session), and in all of these cases the Senators thus appointed were admitted to their seats, until the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, produced his credentials from the governor of Connecticut and the Senate decided he was not entitled to his seat by a vote of 23 to 18.

This decision seems to have been generally acquiesced in since that time; nor is it intended by the committee to call its correctness in question. The principle asserted in that case is that the legislature of a State by making elections themselves shall provide for all vacancies which must occur at stated and known periods; and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution.

The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office under his election made by the legislature of Arkansas was decided by lot, agreeably to the provisions of the Constitution on that subject. After the decision thus made, the legislature of Arkansas, not being in session, could not supply the vacancy; and the case, in the opinion of the committee, comes fairly within the provision of the Constitution contained in the third section of the first article, which declares, "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 are of opinion that Mr. Sevier is entitled to his seat under the execu tive appointment of the 17th of January, 1837, and therefore submit the following resolution:

Resolved, That the Hon. Ambrose H. Sevier, appointed a Senator by the governor of the State of Arkansas, have the oath required by the Constitution administered to him.

The Senate proceeded to consider the resolution; and,

On motion by Mr. King, of Georgia,

Ordered, That it lie on the table, and that the report be printed.