"Mr. President, I have but little more to say. I am not only asserting the fact, but I have the conviction in my own mind that the clause in our National Constitution which says that 'when vacancies happen from resignation or otherwise,' instead of being words of limitation, ought to be construed to have a very different meaning. This is the only branch of the Government where States have an equality, where one State has just as much power as another. The framers of the Constitution were so much in earnest that that should be the fact that they prohibited any amendment to the Constitution depriving the States of their equality of suffrage in this body. My idea is that when the framers of the Constitution said when a vacancy happens by resignation, or otherwise,' they meant when it happens by resignation, or otherwise, from any cause whatever; that they are words of enlargement and explanation, so that there might not be any doubt upon the question that this body should have equal representation, that there should be equal suffrage on this floor, and that if a vacancy occurred from any cause the executive should have the right to fill it. "Now where do we stand on this question? The Government decided first by the national law, and the Senate has decided upon the McMillan report and upon the admission of Mr. Bell, that the legislature having the right was the one elected immediately preceding the end of the term. Then they have settled in Mr. Bell's case another question, as to filling the vacancy happening at the end of the term and before the meeting of the legislature, that the governor had the right to appoint, under which appointment Mr. Bell was seated; and that is precisely the question before us to-day." [Extracts from remarks of Mr. Edmunds, of Vermont, in support of 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. 23.] "I wish to say one word, Mr. President, about what is called the act of Congress of 1866. The Constitution provides that Congress may regulate the manner by which and the time at which the legislature of a State shall elect a Senator. That is all the authority which the Constitution of the United States reposes in Congress over that subject. It says in another place, but in the same connection, that the legislature of a State shall ordinarily I am not now on the question of filling vacancies-elect a Senator for a term of six years. It names nothing but the legislature of a State to do that. "I was here when the act of 1866 passed, but I had just come into the Senate and I gave it no attention; I probably voted for it if there was a division, it being reported by a committee. But I have been of the opinion ever since I came to examine the subject, and I am of opinion now, as I have stated before, I think, in this body, that the act of Congress, in so far as it undertakes to declare what legislature, whether chosen before or after the expiration of a term, or how long before or how long after, shall elect a Senator, goes beyond its constitutional power. I am also of opinion, and I state it deliberately, and I believe I have stated it before, that when the Congress of the United States undertakes to create a body to elect a Senator which the constitution of the State has not created and which is not its legislature it has gone beyond its power. "By the constitution, I think, of every State in the Union, certainly every one that I know of, the legislative power is vested in two separate and independent bodies, each one of which acts by itself and for itself, and that is the legislature of the State of which the Constitution of the United States speaks when it says that the legislature shall elect a Senator. Therefore I am of opinion that Congress has no more power to turn the two bodies, the senate and house of representatives of a State, formed under its own constitution as two separate bodies of different numbers and of different constituencies, into one consolidated body voting per capita, than it has to declare that a town meeting in the State of Vermont may elect a Senator and call that a legislature, because it is not by the constitution of the State its legislature. But that is apart from this question, and I should not have referred to it only that the act of Congress has been spoken of. "Now let us come to the question. First, I will begin with the original Constitution, to which my friend from Missouri has made reference, as he supposes supporting his view of the meaning of the words "resignation or otherwise." In the original draught of the Constitution submitted to the convention, as it appears on page 205 of volume 5 of Elliott's Debates, in the Madison Papers, the third section was: "On the death, removal, or resignation of any Senator, his place to be filled out of the district from which he came.' "That was the first draught. The scheme having been entirely changed and abandoned, later on, at page 377, Mr. Rutledge, on the 6th of August, 1787, reported from the committee of detail as follows: "'ART. V, SEC. 1.-The Senate of the United States shall be chosen by the legislatures of the several States. Each legislature shall choose two members. Vacancies may be supplied by the executive until the next meeting of the legislature. Each member shall have one vote.' "There, as it stood in that final report in detail, final at that time but changed after ward, you will see that there was no limitation or qualification or restriction except 'vacancies.' They might occur during the sitting of a legislature. Whenever they occurred the executive was to fill those vacancies until the legislature should elect, not until its next meeting even; but in order to keep the representation of the States full, in order to create a national government which should have all its faculties and all its members in place to perform their duties, this draught reported by the committee of detail provided for a universal filling of a vacancy by the executive, and provided for his filling it if a vacancy happened or occurred or existed, whatever it was, even if the legislature were sitting. "Now we come to the amendment of Mr. Madison. That draught was under consideration on the 9th of August. Article V, section 1, the one I have read, was taken up, and I shall read the whole proceeding in connection, without any observation, so that it will appear just as it stands in these debates: "Mr. Wilson objected to vacancies in the Senate being supplied by the executives of the States. It was unnecessary, as the legislatures will meet so frequently. It removes the appointment too far from the people, the executives in most of the States being elected by the legislatures. As he had always thought the appointment of the executive by the legislative department wrong, so it was still more so that the executive should elect into the legislative department. "Mr. Randolph thought it necessary, in order to prevent inconvenient chasms in the Senate. In some States the legislatures meet but once a year. As the Senate will have more power and consist of a smaller number than the other house, vacancies there will be of more consequence. The executives might be safely trusted, he thought, with the appointment for so short a time. "Mr. ELLSWORTH. It is only said that the executive may supply vacancies. When the legislative meeting happens to be near the power will not be exerted. As there will be but two members from a State, vacancies may be of great moment. ***Mr. WILLIAMSON. Senators may resign or not accept. This provision is therefore absolutely necessary. 666 "On the question of striking out "vacancies shall be supplied by the executives"— "Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, South Carolina, Georgia, no, 8; Maryland, divided. "Mr. Williamson moved to insert, after "vacancies shall be supplied by the executives," the words, 'unless other provision shall be made by the legislature" (of the State). "Mr. ELLSWORTH. He was willing to trust the legislature, or the executive, of a State, but not to give the former a discretion to refer appointments for the Senate to whom they pleased. "On the question on Mr. Williamson's motion, Maryland, North Carolina, South Carolina, Georgia, ay, 4; New Hampshire, Connecticut, Massachusetts, New Jersey, Pennsylvania, Virginia, no, 6. "Mr. Madison, in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies" and insert the words "happening by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature." Mr. GOUVERNEUB MORRIS. This is absolutely necessary; otherwise, as members chosen into the Senate are disqualified from being appointed to any office by section 9 of this article, it will be in the power of a legislature, by appointing a man a Senator against his consent, to deprive the United States of his services. "The motion of Mr. Madison was agreed to, nem con.' * * * * * * * "Thus you will see, Mr. President, that the motive for inserting the words 'resignation or otherwise' (which was afterward trimmed down by leaving out on the report of the committee on style the words 'refusal to accept;' so as to leave it only 'resignation or otherwise') was distinctly stated by Mr. Madison to be, not that you were to classify a kind of vacancies by resignation, but they were put in expressly for the purpose of recognizing the power of a Senator to refuse to hold on to the office to which he had been appointed. "There never was any question in the debates in the constitutional convention but what it was of the highest importance, the very purpose of the Constitution which provided two Senators from each State, that each State should have all the time, whenever this body met, its full representation, not only for the general benefit of all the people, but sometimes, as was then thought, for its own security, for the preservation of its own rights. "I think, therefore, that this language of Mr. Madison and the action of the conven tion clearly show that the argument of my friend from Missouri is a mistaken one in supposing that the introduction of the word 'resignation' was for the purpose of giving a class, one of a kind of events that might happen, on the occasion of which the executive might act and not otherwise; because Mr. Madison states the purpose to be exactly the other thing, by putting in one of the words of that kind and then putting in the word 'otherwise,' to make it clear that a Senator had a right to resign his place, and then, in order to carry on the whole operations of the Government according to the Constitution, providing that the executive, if the legislature were not sitting, should fill it until the legislature met. "There was nothing otherwise in the whole discussion, I repeat, from beginning to end; and as the draught originally stood it went to the extent, as every Senator will see, of authorizing the executive to fill a vacancy which happened when the legislature itself was sitting until it did fill it; and the only motive stated for the change, which they all agreed to unanimously, was to put in some one word that would affirm and recognize the right of a Senator to resign his place, and then to provide that the State should not go without being represented. "Now let us come to the Constitution just for a moment, and I shall have done. The legislature shall elect for the term of six years. That is the power given to the legislature. "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years.' "If you stop there and give it a literal construction, not looking to the purposes of the Constitution to have a full Senate-there would be no power in any State legislature in this Union to elect if they allowed the time to go by so that when they elected they could not elect under the Constitution for a term of six years. They must elect for a shorter term; they must in New Hampshire; they must in the hundred cases almost which have happened, when the legislature has failed to make provision in advance, so that the election was for six years. Nobody maintains any such proposition, because it defeats the object the Constitution had in view, which was that each State should have two Senators. Now we come to this language about the executive, and see where we are upon the construction of my friend from Missouri: "And if vacancies happen by resignation or otherwise, during the recess of the legis lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill ' "What? "such vacancies.' "The very ones that are named in the preceding line. Therefore, if the authority of an executive is only to fill a vacancy which occurs by resignation or death or expulsionthe only three ways that I can think of, because a refusal to accept does not create a vacancy, it leaves the old vacancy just where it was-if that is the meaning, then the only authority which is left to the legislature is to fill the very vacancy that the governor had a right to fill temporarily, and no other. So if the governor of New Hampshire at this moment has not the power to fill this vacancy, by the very same sign and on the very same words the legislature of New Hampshire when it meets next June cannot fill it even, for the Constitution says in language as plain as words can make it that the vacancy which the legislature is to fill is 'such' vacancy, that is, a vacancy which occurs by resignation or otherwise, that the executive of the State may fill if it happens during the recess of the legislature. We cannot stand on that construction; nobody pretends that we can. By what authority of logic or law is it, then, that we hold that the very same words three lines before limit the power of the executive to a particular class of cases, and that the very same words three lines afterward expand the power of the legislature to every kind of vacancy that may exist? That won't do,' to use a phrase of a late eminent Senator of this body. We cannot stand on it. "We hear much of the word 'otherwise.' If Mr. Madison by proposing, or the convention by adopting, the words 'resignation or otherwise' had meant to classify a series of cases like resignation, why would not Mr. Madison, eminent in his knowledge of the English language and clear in its expression, have said 'likewise'? That is the adverb which would suit the class of cases to which my friend from Missouri refers. 'Other things happening in like manner' is the definition of 'likewise,' while 'otherwise' means things happening in any other manner than by resignation. That is the dictionary and the common sense and the universal knowledge of everybody who knows the English language. "What was the object of the Constitution? It was that the representation of each State should be full, and the Constitution provided two means of keeping it full. First, by the legislature for the full term electing in advance before any vacancy occurred. That would provide for all that. Then both the executive and the legislature, after a vacancy did happen at a time when the legislature was not in session, could fill it then and there, by providing that instantly the governor in the first instance and the legisla ture at its next meeting should fill up that vacancy so as to carry out the great objects of the Constitution. "Wherefore, then, upon any principle of patriotism, or law, or justice, should we endeavor by construction to narrow down the franchise of a State, if I may call it that, and endeavor to find some class of cases where for some period of time a State shall go unrepresented? I am unable to see it; and this report of the debates in the convention shows clearly to my mind, and I think even to that of my friend from Missouri and my friend from Delaware, that the word 'resignation' was not put in with the object that my friends think it was, but for an entirely different object, as was stated by Mr. Madison himself. "This question was fairly debated when the gentlemen on the other side were in a majority in this Chamber. Without a party division, gentlemen on both sides, voting according to the light they had and not dividing upon party lines, settled this identical question. The Senate in sitting upon such a question sits as judges. The Constitution says so. We are not defining policies; we are not setting up expediencies; we are not carrying on party warfare; we are sitting as the solemn judges sworn to try and determine the election and qualification of a gentleman who presents himself to be a member of this body. We have come to a decision, just as the Supreme Court of the United States sitting two hundred feet from us comes to a decision in a great variety of cases where the judges differ-five one way four another or whatever it may be, a difference of opinion. The decision of the court is announced. What would become of that court if the next time a similar question came up the whole thing was opened again and the contest was gone over repeatedly from year to year and time to time in order to see which should get in the ascendency upon all questions? Nothing would be settled, and the court would be destroyed, and justice, too, for that matter. "How is it different here? When we have come to a decision, even in a case of doubt, having come to it fairly, not in a time of party heat, or by a party vote, when we, after full deliberation, have come to a decision which carries out confessedly the objects of the Constitution to keep the representation of a State full, should we not stick to it; or are we, every time a similar question comes up about elections, to reverse our decisions, retry them, hold them of no force, and thus keep this body continually in a turmoil over questions of representations in it that come from the States? However doubtful it might have been-it did not seem to me so, to be sure, but however doubtful it might appear to the minds of gentlemen who voted in the minority-it appears to me that, once decided and decided in favor of representation, it would be better to follow that as an estab lished precedent which carries out the objects the Constitution has in view." [Fifty-second Congress-First Session.] HORACE CHILTON, of Texas. Mr. Reagan, elected Senator from the State of Texas for the term of six years from the 4th of March, 1887, resigned his office, the resignation to take effect on the 10th day of June, 1891. The executive of the State of Texas, after the receipt of the resignation of Mr. Reagan, appointed Mr. Chilton to fill the vacancy occasioned by said resignation, the appointment to take effect on the 10th day of June, 1891. The certificate bears date April 25, 1891. December 7, 1891, Mr. Chilton appeared and took his seat and on the same day his credentials were referred to the Committee on Privileges and Elections. That committee reported January 25, 1892, that "So far as the precedents are concerned, it appears that in three cases persons so appointed have been admitted to their seats without question; that Mr. Tracy was admitted and Mr. Lanman rejected, where the executive made the appointment in anticipation of a vacancy, there being a discussion in the Senate, but no satisfactory evidence of the grounds of the judgment; that in one case, that of Mr. Sevier, a person so appointed has been admitted, when the validity of the appointment was questioned, upon other grounds, without raising this question specifically; and that in modern times the practice has been uniform for the State executive to delay appointment until the actual happening of the vacancy. that where the power is given to fill vacancies in public offices it has been the uniform practice to permit resignations of such offices to be made, to take effect at a future day, and to hold that the appointing power is entitled to make the appointment in advance to fill the vacancy, to take effect when the resignation becomes operative, unless the language of the constitutional or statute provision under which the authority is exercised forbids such construction;" that the same rule should be applied to the case of resignations and vacancies in the Senate, and that, therefore, Mr. Chilton was entitled to retain his seat. January 27, 1892, the resolution reported by the committee was agreed to. The history of the case here given consists of a transcript of the journal of the Senate relating to it, with the report of the committee. (Sen. Rep. No. 105, 1st Sess. 52d Cong.) MONDAY, December 7, 1891. The Vice-President laid before the Senate the credentials of Horace Chilton, appointed a Senator by the governor of the State of Texas to fill the vacancy occasioned by the resignation of John H. Reagan in the term expiring March 3, 1893; which were read and placed on file. On the same day Mr. Chilton appeared. The oath prescribed by law was adminis tered to him, and he took his seat. On motion by Mr. Hoar, Ordered, That the Committee on Privileges and Elections be directed to inquire into the circumstances and validity of the appointment of Horace Chilton as a Senator from the State of Texas. [The debate on this order may be found Cong. Record, 1st sess. 52d Cong., p. 3, daily edition.] MONDAY, January 25, 1892. Mr. Hoar, from the Committee on Privileges and Elections who were instructed to inquire into the validity and circumstances of the appointment of Horace Chilton as a Senator from the State of Texas, submitted a report (No. 105) accompanied by the following resolution: Resolved, That Mr. Horace Chilton, appointed by the executive of the State of Texas, on the 25th day of April, 1891, to fill the vacancy occasioned by the resignation of Hon. John H. Reagan, which had previously been made to take effect on the 10th day of June, 1891, is entitled to retain his seat. REPORT OF THE COMMITTEE. [The committee consisted of Messrs. Teller (chairman), Hoar, Mitchell, Chandler, Higgins, Vance, Pugh, Gray, Turpie.] IN THE SENATE OF THE UNITED STATES. Mr. Hoar, from the Committee on Privileges and Elections, submitted the following report: The Committee on Privileges and Elections, who were directed by resolution of December 12, 1891, to inquire into and report upon the circumstances and validity of the appointment of Mr. Chilton to a seat in the Senate from the State of Texas, have complied with said resolution and respectfully report: Mr. Reagan, elected Senator from the State of Texas for the term of six years from the 4th of March, 1887, resigned his office, the resignation to take effect on the 10th day of June, 1891. The executive of the State of Texas, on the 25th day of April, 1891, and after the receipt of the resignation of Mr. Reagan, appointed Mr. Chilton to fill the vacancy occasioned by said resignation. Mr. Chilton's credentials set forth the resignation of Mr. Reagan, and further declare "Now, therefore, I, J. S. Hogg, governor of the State of Texas, by virtue of the |