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Mississippi, contesting their seats. The day upon which Congress was to meet was notorious, known probably to every voter in the State; and yet no voice is heard from that quarter, casting a suspicion upon the integrity of the election. A member of this House, actuated apparently by a greater zeal for the preservation of the elective franchise and laws of Mississippi than was felt by any citizen of that State, rises an interposes an objection to those two gentlemen taking their seats; and that, too, before the facts in the case were known, or could be ascertained by any impartial tribunal, owing to the imperfect organization of the House. The people of Mississippi were supposed to be so indifferent to their own rights, or so incapable of asserting them, that it became necessary to assume a guardianship over them to protect their injured innocence. House, however, rejected this monstrous interference, and wisely reserved the consideration of all questions that might grow out of the election, until the facts could be settled by a committee. The business of the session went on. Still no competitors for the seats appeared. No petition was presented contesting the election. The people whom these two gentlemen claimed to represent, seemed to be satisfied, as far as silence can be construed into acquiescence; and, in these days of freedom of speech, men are not apt to remain silent where they think there is cause of complaint. At the request of these members themselves, the Committee of Elections were directed to look into the matter, and up to this moment of discussing the two reports which they have given us, not even a half-stifled hum has been heard in Mississippi expressive of discontent with the election: and yet this spotaneous guardianship continues to be exercised for the protection of the rights of those people, and we are urged, out of great tenderness towards them, to declare an election void which they have made, lest, forsooth, we may violate their will by confirming it. Do the gentlemen who thus argue feel with Bassanio, when he is addressing Portia, that they are inclined “To do a great right, do a little wrong, And cur, this cruel devil of his willo

Are they dissatisfied with the manner in which the election has resulted, and would gladly seize upon any reason for trying it over again? I will not suppose it; but it is a singular coincidence that every member of this House who has addressed it upon this subject, who is of different politics from the two members returned from Mississippi, is in favor of setting aside their election. stand how there should be a difference of opinion upon the constitutional point involved in the case, upon which I mean to touch presently, but I cannot consent that they should place the vindication of their course upon a desire to carry out the popular will. Suppose, sir, that we adopt

the resolution of the minority of the committee and declare

the election void; and suppose that the people of Mississippi could interrogate us why wo had done so. answered that we had paid respect to their will, they would reply that their will was to be represented at this important extra session, and that we knew it; for we do know it, and all admit it. If they pressed the inquiry still further, and asked why we had destroyed the political existence of those to whom they had shown themselves wedded, would it do to reply as Richard does to Lady Anne, when she upbraids him with destroying her spouse, that he “did it to help her to a better husband 1” Are gentlemen such devoted friends and lovers of the people of Mississippi, that they would put out of the way the object of their choice, in order to give them a chance of making a better selection 1 I think that they would not be as placable as was the lady. They would be apt to reject the doubtful friendship of their self-appointed guardians, who, from a nervous apprehension lest those pcople may be injured in their rights, at once disfranchise them ; and, from a morbid sensitiveness lest their free suffrage may be endangered, turn the ac

I can readily under

Mississippi Election.


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knowledged members of their choice out of this hall for the remainder of this extra session. Whether we may remain here for a longer or shorter period of time, makes no difference in the argument. It is certain that we shall have to decide some important questions which will be closely contested, and the absence of two members may decide the fate of measures to which the whole country is looking with deep anxiety; and, besides, the question of time can have no bearing upon the point which I am now considering. I am endeavoring to show that, inasmuch as it is admitted, upon all hands, that the people of Mississippi have clearly shown their wish to be represented here during this extra scssion, and those who sustain the report of the minority, which sets the election aside, are, of course, for ejecting the sitting members forthwith, it will not do for them to rest the justification of their proceeding upon the ground that they are anxious to carry into effect the will of that State. They are committing the very act which they profess to be anxious to avoid. Whilst they are urging upon us their extreme care to follow the popular will, they are forcibly divorcing the people (as the use of this word finds its way into every subject at this session) from the object of their choice; and, as gentle dissuasives will not succeed, they apply the figurative wedge and sledgehammer violently to separate those who are living volun. tarily in close alliance. Sir, let the supporters of the minority report rest their arguments upon a refined and

technical construction of the constitution, but let them not

assume the untenable position that they are acting in conformity with the will of the people of Mississippi. But it is said that although it is admitted that an election was held for the present extra session, yet there is no evidence that there was any intention on the part of the people that the term of service of the sitting members should continue any longer than that time. I grant that it is not easy to ascertain how this is; but still there is enough from which to draw a satisfactory conclusion. One of the sitting members has publicly declared, in his place, upon his responsibility as a member of the House, that, during the canvass, no other opinion was expressed from any quarter than that the election was for members of the 25th Congress; that the candidates and voters universally so considered it. We know, also, that the presses upon both sides spoke of it in the same way; and we have a still stronger evidence of what the public opinion was, and is, in the fact that at this moment there is only a single candidate in the field for the November election ; and his is rather a continuance of the former canvass than the institution of a fresh one. If the general belief was that the sitting members would hold their seats only until November, it is impossible that such a degree of languor should now prevail. On the contrary, the parties who fought so

fiercely in August would have already buckled on their If we

armor for another battle in November, more particularly when the victors were enjoying, not their spoils, but their well earned höhors, at this distance from the theatre of action, and when their absence must necessarily paralyze, in some degree, the efforts of their political friends. I rely upon these evidences, slight as they may be regarded, with the more considence, as no evidence at all is ostered to maintain the opposite position, except the mere proclamation of the Governor, the effect of which upon the formation of public opinion is nothing but conjecture. In all cases of contested election, this House has very properly endeavored to ascertain what the intentions of the people were, and has disregarded technical objections as to mere forms. If the two questions of “what did the people mean to do,” and “what have they done,” can be satisfactorily answered, the decisions of the House have invariably corresponded with those intentions and acts. In this case, therefore, we may sum up the points thus: if we adopt the report of the majority, we place the sitting members in

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their seats for the extra session, which the people of Mississippi clearly intended, and confirm them in their seats for the residue of the Congress, about which some doubt may exist as to the intentions of the people, and, of course, it becomes a question of evidence. If, on the other hand, we adopt the report of the minority, we eject these members from their seats forthwith, which the people of Mississippi clearly and admittedly did not intend, and put those people to the trouble of another election, respecting their desire for which great doubt must also exist, as it too is a question of evidence. In the former course we are perfectly certain of conforming to their will as to a part of our decision, and in the latter wo are equally certain that we violate it. If, therefore, we are guided solely by a regard for their will, can we hesitate which to adopt But I concede that there is something more in this case than the single point which I have been considering. My object hitherto has been to show that the ground assumed by the friends of the minority resolution will not bear them out as far as that point is concerned. Let us see whether any other position is stronger. The Legislature of Mississippi, by some unaccountable oversight, omitted to vest the Governor with the power which all other Governors possess under the laws of their respective States, of ordering an election for members of Congress, where a special session may be called for a day anterior to that designated in the law of the State, as the one on which the regular election is to be biennially held. The Governor thought that he found an authority for so doing in the constitution of the United States, but thought also that his power under that instrument only extended to filling up the vacancy until the recurrence of the election at the usual time, and issued his proclamation and writ accordingly. As all the arguments of the friends of the minority resolution deny the existence of any power in the Governor, whether he had issued his writs for the entire 25th Congress or only a portion of it, I shall not consume time in examining the precise effect of the writ which he actually did issue; because, by contesting his authority to order an election at all, the opposite side appear to attach no importance to the mode in which he exercised his power, and therefore seem to acquiesce in the conclusion to which the majority of the committee come in their report, of rejecting a part of his writ as surplusage. The question is, then, whether the Governor had any authority to order an election. In the second section of the first article of the constitution of the United States is found the clause which is the fruitful theme of this prolonged debate: “When vacancies happen in the representation from any State, the Executivo authority thereof shall issue writs of election to fill such vacancies.” It is agreed on all hands that this clause is not a dead letter, but that it confers some power of some kind upon the Governors of States; but it is argued that the power extends only to issuing writs of election to fill vacancies which “happen,” and much subtle refinement is resorted to in order to draw the line of distinction between those which do and those which do not “happen.” And it is further said that the term “vacancy” is not applicable to the condition of the representation from a State when the period of service of former members has expired, and before the election of their successors. With regard to the first position, I will not repeat the conclusive lexicography of the gentleman from Virginia, [Mr. PENNY BAck ER, but content myself with saying that it certainly has not been, or I believe attempted to be, answered. If the meaning of words is to be judged of by authority, the books which he has produced conclusively show that the word “happen” expresses a genus of which “chance” is only a species. No matter what may be the cause of the vacancy, whether it has occurred by “chance” or “design,” or the expiration

of a term of service, the generic word equally includes it; and those who framed the constitution could not, by the most assiduous study, have discovered a word more comprehensive in its signification than the precise one which they adopted. I leave this branch of the argument where that honorable gentleman placed it, deeming it impossible either to make it more clear or refute it. But, it is said, also, that there was no “vacancy” in the representation from Mississippi; that a vacancy can take place only when a member elect dies, or resigns, or removes, and that it cannot be created by the expiration of a term of service. For this limitation of the meaning of the word, no grammatical authority is adduced; but it rests upon the arbitrary assertion of those who so construe it. I should rather define “vacancy” to mean the absence of something which ought to be there. The limited meaning which is given to it is contrary to common sense; and indeed, no grammatical definition of it has been attempted to be given. All that is said is, that the case is not included within it. Let us suppose that the resolution of the Ininority should be passed to-day, and that, on to . morrow, when no person was in the occupancy of the chairs which are now so worthily filled by the two gentle. men from Mississippi, an inquirer should ask of the gentleman from Ohio, for example, where was the delegation from Mississippi; he would be bound to reply, as he has said in his argument, there is no “vacancy” in the representation from that State. But the incredulous interrogator would proceed; there is nobody in those chairs, and they are appropriated to the use of that delegation. Still my learned friend would be obliged to insist upon it, that there was no vacancy in that representation. It is true, he would say, that Mississippi has no members upon this floor in those chairs, or any where else; but I tell you there is no vacancy, because she elected members to the last Congress, and has not elected any to this; therefore, there is no vacancy. Do you not perceive, sir, that this is the inevitable result of the argument upon the opposite side 2 Because, if there was no vacancy when the Governor issued his proclamation, there is none now ; and yet, see how impossible it is to convince the eyes of the truth of the argument addressed to the ears. I say, therefore, that this construction of the constitution is contrary to common sense, however strongly it may be supported by technicalities, and I am no advocate for adopting refined and scholas. tic subtleties, as the proper means of interpreting an instrument which was intended to be understood by plain men in regulating the business of life. I wish, however, to refer you to the journal of the convention which framed the constitution, in order to show that the meaning which we now give to the clause which I have quoted, is the one which they attached to it, when it received the assent of that distinguished body. But before I do this, let me refer very briefly to the opinions of two gentlemen of acknowledged talents who have, at different periods, filled the office of Attorney General, as there is an entire harmony between the conclusions which they have drawn from a cautious inspection of the constitution as it is written, and the design, of those who made it, as manifested by the history of their proceedings. I propose to touch very summarily upon these opinions, because other gentlemen have examined them more fully, and I desire to avoid the repetition of what has been already, and no doubt better, said. In October, 1823, and July, 1832, cases occurred in the administration of the Executive authority, which drew from those who occupied, at those times, the situation of Attorney General of the United States, elaborate opinions upon the construction of that part of the constitution which empowers the President “to fill up all vacancies that may happen during the recess of the Senate.” It will at once be perceived that there is a strong analogy, although not a perfect identity, between the meaning of

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this word “happen,” in this clause of the constitution, and the one which we are considering ; because, under both, the argument is, that a case where there is no incumbent in office, owing to the expiration of a term, is not included within either clause. But Mr. Wirt says, “The substantial purpose of the constitution was to keep these offices filled, and powers adequate to this purpose were intended to be conveyed. But if the President (and the remark is equally applicable to the Governor of a State) shall not have the power to fill a vacancy thus circumstanced, the powers are inadequate to the purpose, and the substance of the constitution will be sacrificed to a dubious construction of its letter.” He comes to the conclusion, that if the vacancy is found to exist, the constitutional power of providing for its being filled is immediately applicable, and adds: “This seems to me the only construction of the constitution which is compatible with its spirit, reason, and purpose, while, at the same time, it offers no violence to its language; and these, I think, are the governing points to which all sound construction looks.” Mr. Taney, in 1832, concurred in opinion with his predecessor, without knowing, however, that Mr. Wirt had expressed it, because it was not until he had prepared his own, that an examination into the files of the office resulted in the discovery that Mr. Wirt had been called upon by the then President for an opinion in a similar case. Mr. Taney says: “The words used in the constitution do not, I think, by any fair construction, require a distinction to be taken. It was intended to provide for those vacancies which might arise from accident, and the contingencies to which human affairs must always be liable. And if it falls out that, from death, inadvertence, or mistake, an office required by law to be filled, is, in the recess, found to be vacant, then a vacancy has happened in the recess, and the President may fill it. This appears to be the common sense and natural import of the words used. They mean the same thing as if the constitution had said “if there happen to be any vacancies during the recess.’” I propose now to show that the framers of the constitution intended to attach this meaning to the kindred clause which is to govern our decision in the case before us, and this intention is to be drawn from the proceedings of the convention, which I examined for the satisfaction of my own judgment. If it had not been for the purpose of bringing this point before the House, I should not have interfered in the debate, as I stated in the outset of my remarks; but, having once taken the field, I must go through the campaign, skirmishing with all those adversaries whom I may “happen to encounter.” The convention which framed the constitution pursued the following judicious mode of proceeding. They first settled general principles in Committee of the Whole, and then appointed five of their body to revise the style of the articles agreed upon, but without alteration of the meaning, and to arrange them under proper heads. This was the extent of their duty. The committee consisted of Mr. Johnston, Mr. Hamilton, Mr. G. Morris, Mr. Madison, and Mr. King, who reported the revised draught on the 12th of September, 1787, which contained the clause in the first article, word for word, as we now find it in the constitution, viz: “When vacancies happen in the representation from any State, the Foxecutive authority thereof shall issue writs of election to fill such vacancies.” The argument of the friends of the minority report of the Committee of Elections is, that this is a conditional grant of power or imposition of duty upon the Executive authority of a State, taking effect only when vacancies “happen,” and not applying te a case where a vacancy is created by the expiration of a term of service, as it cannot then

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be said to “happen,” it not being the work of chance or

accident. I find, on looking over the journal, that when the convention was employed in settling the principle which they meant to establish, on the 6th of August, they expressed it in these words: “Vacancies in the House of Representatives shall be supplied by writs of election from the Executive authority of the States in the representation from which they shall happen.”—Elliot's Debates on Federal Constitution, vol. 1, §. 256. very one must see at once that the only difference between these two sentences is, that the latter excludes the construction which the friends of the minority report wish to apply to the former, and that this vexed article is made to express the very idea which Mr. Wirt and Mr. Taney contended should be applied to another clause upon the same subject, coinciding precisely with the interpretation which those who think with me allege should be placed upon it. Without resorting to a strict grammatical analysis, every unpredjudiced mind would agree at once, as it seems to me, that the original draught meant to provide for the filling up of all vacancies, no matter from what cause, or when they might occur; and this inference is impregnably fortified by a closer examination. The word “when,” which is considered as drawing after it a limitation of power, by admitting only a certain class of cases, and excluding others, is not found in the first draught; and the word “hap. pen” is detached from the important noun “vacancies,” whose comprehensive meaning it is said to control, and made to assume an humble and merely an explanatory duty. I repeat that the idea intended to be advanced by the framers of the constitution is found in the original draught; for I find that the committee of five were appointed “to revise the style of, and arrange, the articles agreed to by the House;” and I cannot find that, in a single instance, they departed from this secondary duty. No fault appears to have been found with them on account of any aberration from the principles which the convention had previously adopted; and, in fact, they had only to paint and furnish the House which had been built, without interfering with the order of its architecture. I hold that, as statesmen, we are not only at liberty, but bound, to follow the intentions of those who prepared the constitution, and think that they are sufficiently manifest from the authority which I have adduced. Whilst upon the subject of authority, I beg leave to refer to one quoted by the honorable gentleman from Ohio, [Mr. Mason,] who has read an extract from Judge Story's Commentaries on the Constitution. The part upon which he relied was the following: “By “vacancies' they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word “happen' had relation to some casualty not provided for by law.”—Story's Commentaries, vol. 3, page 411, book 3, section 1,553. - I have too much respect for the learned judge whose opinion is thus brought before us, to pass it over without notice. But the honorable gentleman made only an extract from an entire passage, which, when considered as a

whole, will be found not to bear upon the question before

us. He violently tore off a limb from the body; and I beg leave to replace and bandage it up, binding the bleeding fracture as well as my poor surgery will permit, in order to present to view the unmutilated subject in a perfect form. The entire passage is this: “The language of the clause is, that the President shall have power to fill up “vacancies' that may happen during the recess of the Senate. In 1813, President Madison appointed and commissioned ministers to negotiate the treaty of peace of Ghent during the recess of the Senate; and a question was made whether he had a constitutional authority so to do, there being no “vacancy' of any existing of

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fice, but this being the creation of a new office. The Sen. ate, at their next session, are said to have entered a protest against such an exercise of power by the Executive. On a subsequent occasion, (April 20, 1822,) the Senate seem distinctly to have held that the President could not create the office of minister, and make appointments to such an office during the recess, without the consent of the Senate. By vacancies,” they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word “happen' had relation to some casualty not provided for by law. If the Senate are in session when offices are created by law, which have not as yet been filled, and nominations are not then made to them by the President, he cannot appoint to such offices during the recess of the Senate. In many instances, where offices are created by law, special power is, on this very account, given to the President to fill them during the recess; and it was then said that in no other instances had the President filled such vacant offices without the special authority of law.” It will be observed that Judge Story referred to what he supposed to be the opinion of the Senate upon the point whether the President could appoint to an office then created for the first time—a question very wide of that now before us. The office of a Representative from Mississippi was not to be created when the Governor issued his proclamation for an election. It had been created some years before, when that State was admitted into the Union, and had been often filled. The point which the judge was discussing, therefore, had no analogy at all to that before the House. [Mr. Mason, of Ohio, had read, in the course of his argument from Judge Story's Commentaries on the Constitution of the United States, the following paragraph: “The language of the clause is, that the President shall have power to fill up vacancies that may happen during the recess of the Senate. In 1813, President Madison appointed and commissioned ministers to negotiate the treaty of peace of Ghent, during the recess of the Senate; and a question was made, whether he had a constitutional authority so to do, there being no vacancy of any existing office, but this being the creation of a new office. The Senate, at their next session, are said to have entered a protest against such an exercise of power by the Executive.” Mr. A LAMs now rose, and said that he had not intended to take any part in this debate, but that the reference of both the gentlemen to a question in which he had been personally concerned, and to an erroneous statement in the commentaries of the learned and highly respectable judge, made it his duty to apprize them and the House there was in this statement an error, not of the judge, but of his informant, whoever he may have been. The language of the book is “the Senate are said to have entered a protest;” by whom said, the book does not state. But, by whomsoever said, it was a mistake. No such protest was, in that case, ever entered by the Senate. The facts of the case were these : Immediately after the declaration of war between the United States and Great Britain, in 1812, was known at St. Petersburg, the Emperor Alexander offered his mediation, for the negotiation of a peace between them. This proposal was made by his minister, Mr. Daschkoff, to the Secretary of State, Mr. Monroe, on the 8th of March, 1813, four days after the close of the session of Congress. Perhaps imagination could not invent an occurrence better suited to illustrate the importance of that provision of the constitution which gives to the President of the United States the temporary appointment to executive offices during the recess of the Senate. Here was an opportunity providentially presented for putting an end to a formidable and calamitous war. The mediation of the Emperor was immediately accepted. The appointment of a minister or ministers for conducting the negotiation was indispensable. If the President had no power to make that appointment during the recess of

the Senate, two months at least must have been lost before that body could be convened, for the single purpose of giving their advice and consent to the appointment. The nation, then, would have been two months suffering all the horrors and desolations of a cruel war for want of an organized power to make peace. For in this, as in every question of constructive powers, we should never lose sight of the consideration that the denial of an organized power competent for efficient action, is a denial of the power not only of the functionary to exercise it, but of the nation for whose benefit the power is to be exercised. In that case, the impotence of President Madison to appoint ministers till the Senate could be convened, would have been, during the same term of time, the impotence of the nation, in the midst of war, to make peace. Impotence, not by the weakness of the nation—not by the refusal of the enemy to negotiate—but by the neglect of the nation to organize her own institutions with powers essential to her safety, and perhaps even to her existence. On the 24th of May, little more than two months after the offer and acceptance of the Russian mediation, Congress assembled, and on the 29th of May, President Madison sent a message to the Senate announcing that commissions had been granted during the recess of the Senate to Albert Gallatin, John Quincy Adams, and James A. Bayard, to be, jointly and severally, Envoys Extraordinary and Ministers Plenipotentiary to negotiate and sign a treaty of peace with Great Britain, under the mediation of the Emperor of Russia; to negotiate and sign a treaty of commerce with Great Britain; and the said John Quincy Adams, Albert Gallatin, and James A. Bayard, to be, jointly and severally, Envoys Extraordinary and Ministers Plenipotentiary to negotiate and sign a treaty of commerce with Russia, and that he nominated them to the Senate for those respective offices. On the 19th of July, 1813, the Senate rejected the nomination of Albert Gallatin, on the ground that he held the office of Secretary of the Treasury, and of their opinion that the two offices ought not to be held by one person at the same time. They advised and consented by nearly unanimous votes to the two other nominations. On the 29th of July thereafter, Mr. Gore, a member of the Senate, in opposition to the then executive administration, presented to the consideration of the Senate five resolutions, the first of which was in the following words: “The President of the United States having, by the constitution, ‘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'— “Resolved, That, in the opinion of the Senate, no such vacancy can happen in any office not before full.” The subsequent resolutions proceed to censure the commissioning of the three negotiators to treat for peace, declaring that their offices had not been before filled; that they were unconstitutional without the advice and consent of the Senate. That the Senate reluctantly protested against them, and that they should be communicated, by a committee of the Senate, to the President of the United States. The resolutions were laid on the table without debate, and were no further acted upon at that session, which closed on the second of August of that year. At the next ensuing session of Congress, on the 28th of February, 1814, Mr. Gore again presented to the consideration of the Senate, in session upon executive business, the same series of resolutions. They were then ordered to be printed, to be discussed with open doors, and made the order of the day for the ensuing Monday, the 7th of March. They were accordingly then taken up, and, after sundry postponements, and full debate, the further consideration of them was, without call for the yeas and nays, postponed till the first Monday of December then next. They were never after resumed,

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There was, no doubt, on that occasion, a thorough and searching discussion, by the Senate, of the extent of the rightful power of the President to fill vacancies happening during the recess of the Senate. The question was stated with great address in the first resolution of Mr. Gore, assuming that no vacancy could happen in an office not before filled. But the fallacy was in that assumption. It was a petitio principii, or begging of the question. It is not necessary to constitute a vacancy in an office, that it should have been before filled. It would be more correct to say that the office is always vacant when it is not filled. There was, then, no protest entered by the Senate against the appointment during the recess of the negotiators of peace in 1813: never was an occasion, when the reason for the exercise of that power of temporary appointment was more forcible, and the appointment itself more indispensably necessary. Far from entering a protest, the Senate, after long, ample, and repeated deliberation, discarded the proposal for it by postponement to the first day of another session. There is no doubt that the word happens, like multitudes of others, we might almost say all the words of every language, has various meanings and modifications of meaning. It is sometimes used to denote incident, and sometimes accident. It sometimes, perhaps generally in colloquial usage, imports some indefinite agency of chance, something fortuitous; but men who entertain a serious conviction of religious truth believe that chance has no agency in the affairs of this world, that there is nothing fortuitous, and that whatever happens is but the orderly disposal of events by an overruling Providence. The common scriptural expression synonymous with happens is, “it came to pass;” and perhaps the English translators of the Bible used those words instead of “it happened,” for the express purpose of excluding thc possibility of an inserence, from the shade of casualty usually included in the meaning attached to this word, that there is any thing like chance in the government of the universe. A vacancy therefore happens, when it comes to pass; and whether caused by the resignation or death of an incumbent, by the expiration of the official term, or by his removal at the pleasure of him from whom the appointment was received, from whatever cause the vacancy proceeded, whenever it exists, it happens. . It is said in the passage quoted from the Commentaries of Judge Story, that the reason for the question made in the Senate, whether the President had the constitutional right in 1813, to appoint, during the recess of that body, ministers to negotiate a treaty of peace, was, that there was no vacancy of an existing office; but that this was the creation of a new office. This again was a mistake. The offices of public ministers of all denominations are created, not by the constitution or statute laws of the United States, but by the laws of nations. They are recognised as existing offices, and the mode of appointing them is prescribed by the constitution. The particular Government to which a minister is accredited, or the particular negotiation with which he may be charged, forms no part of the creation of the office. The office always exists. It belongs to the intercourse of peace and war between sovereign communities. But it is an office of occasional and voluntary recourse; vacant whenever, in the judgment of the competent authority, there is no adequate motive requiring that it should be filled, and forming a vacancy to be filled whenever the occasion arises for filling it. With this view, the vacancy in the office of ministers to negotiate for peace in 1813 happened at the moment when the proffered mediation of the Emperor Alexander was accepted, and that was during the recess of the Senate. Nor was this the only occasion upon which, in the discharge of public duties, I have been celled to act upon this understanding of that constitutional provision. This is the

sense in which I have always understood it, and it has been so understood by every President of the United States, from Washington down. It is, indeed, stated in Marshall's Life of Washington, that on one occasion, when he inclined to depute an envoy extraordinary to France, for a particular purpose, who should be united with the actual minister, (Mr. Monroe, ) this objection was suggested, that during the recess of the Senate the President can only fill up vacancies, and the appointment of a minister when no vacancy existed might be supposed to transcend his powers. From respect to this construction of the constitution, therefore, he recalled Mr. Monroe to make a vacancy, and then appointed General Charles Cotesworth Pinckney to fill it. Sir, it was the most unfortunate measure of his administration. The suggestion was not of his own mind. That was, to have joined Mr. Monroe in the negotiations with General Pinckney, which would, in all probability, have saved us from a quasi war with France, and would have been kind and generous to Mr. Monroe. The substituted expedient was not so. A stronger illustration of the incorrectness of that construction could scarcely be given. President Washington did not respect it in other cases when it was not suggested to him as an objection. He made several original appointments in the recess of the Senate to offices existing by the laws of nations.] Mr. HowARD resumed. I am glad, sir, that my remarks have drawn out this opinion from the honorable gentleman from Massachusetts, since his opinion on the subject of vacancies coincides with my own. Perhaps this interpolation may be considered by some as the best part of my speech. But the honorable gentleman has also, by showing that Judge Story was mistaken as to the fact upon which he built his argument, totally demolished the fabric upon which the gentleman from Ohio [Mr. MAson] reposed in fancied security. It was swept away. [Mr. Mason explained, and contended that the remarks of the gentleman from Massachusetts had not affected the argument he had used, or the authority he had referred to.] Mr. How And proceeded. It seems to me that if Judge Story placed dependence upon an opinion of the Senate, without even expressing his own, and if it now appears that the Senate had given no such opinion, there was very little left of the authority which the gentleman quoted with such emphasis. This is a matter for the House to decide upon. I dismiss the subject. It appears strange, at first view, that this question has never arisen before; and that now, for the first time, a power was claimed on behalf of a Governor of a State under the federal constitution. The reason why the case has never happened before, is precisely that which most readily reconciles me to the acknowledgment of the power now. It is, that all State Legislatures have, of their own accord, conferred upon their Governors this very same power, except in the single instance of Mississippi, arising in this case, no doubt, from inadvertence and precipitate legislation. There is surely no ground to fear any unpleasant result, when our decision is in exact conformity with the laws of the States for forty years; when we are manifesting a beautiful harmony between the constitution of the United States and the feelings of the people of the States, as shown in their laws. If indeed we were about to curtail the power which the Úovernor claimed under the constitution or laws of his own State, we might well pause. But our decision in this case will only place Mississippi precisely where the other States have voluntarily placed themselves, by conferring upon their Governors the power which we are about to admit. The gentleman from Rhode Island, who has just taken his seat, [Mr. Tilli Ngh Ast, has touched upon the only point which has caused any embarrassment to my mind. He has said that if a Governor of a State derives the power of

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