MISSISSIPPI ELECTION.

SEPTEMBER 25, 1837.

nesday next.

Mr. BUCHANAN, from the Committee of Elections, to whom was referred the resolution of the House of the 18th instant, on the subject of the Mississippi election, have had the same under consideration, and report: They find a clause in the constitution of the United States as follows: "When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies."

6. "Separate statements of the aggregate amounts left in the hands of collecting officers, paid into the Treasury, and deposited in bank, the mint and its branches, or other depositories, since the date first mentioned."

The amount left in the hands of postmasters since the first of May, most of which would have been deposited in banks under the former system, is $544,812 87.

The amount deposited in bank, as exhibited above, is $124,370 62.

No deposites have been made by this Department in the mint or its branches, or in other depositories, nor has any thing been paid into the Treasury.

In further explanation of the operations of this Department since the suspension of specie payments by the banks, it is proper to add, that the notes of those institutions, though to some extent tolerated by law in the transactions of the Government as long as redeemable and redeemed in gold and silver, are expressly prohibited to its use when no longer so redeemed; that it was in obedience to the law that this Department, on the suspension of the banks, took prompt measures to prevent their receipt and avoid their disbursement in its own operations; that the suspension of payment by the banks occurred in the month of May, one of those months in which the quarterly balances due to contractors are chiefly paid off; that the entire available means of the Department for that purpose were deposited in the banks; that the Department had no alternative but to continue its warrants on the banks, or stop payment altogether; that inasmuch as the bnaks had given no notice of an intention to refuse gold and silver or their equivalent in paying out the deposites of the Department, it was considered no violation of law to draw on them as if nothing had occurred; for that reason, as well as to avoid an absolute stoppage of payment, and gain time to accumulate a specie fund, the issue of warrants on banks was continued, but instant steps were taken to provide a specie fund for the payment of such as might be returned with proof of the refusal of the banks to pay them in gold and silver; by the time they began to return, the Department had an ample fund for their payment, and in every instance they have been paid in the legal currency of the United States. By these means, without sanctioning or countenancing the receipt or disbursement of depreciated bank notes, this Department has been enabled thus far to outride the storm, with its credit unimpaired, and is confident in its capacity to carry on its operations, according to existing laws, receiving and disbursing gold and silver only.

Very respectfully,

Your obedient servant,
AMOS KENDALL.

Hon. JAMES K. POLK,

Speaker of the House of Representatives.

They also find that, by the same instrument, "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof."

They also find certain sections extracted from a law of the State of Missisippi, in the following words: "An act to regulate elections in this State. Approved March 2, 1833.

"Sec. 1. Be it enacted by the Legislature of the State of Mississippi, That all elections for Representatives to the Legislature shall be held at the court-houses or places of holding courts in the several counties of this State, unless otherwise specially provided for by law. And the times of holding such election shall be the first Monday and day following in November biennially. And all elections for Senators in the Legislature, for Governor, Representatives to Congress, sheriffs, coroners, and all other State and county officers directed by the constitution to be biennially elected, shall be held at the same places and on the same days of the year in which they are respectively chosen, as are therein directed in the case of Represent. atives to the Legislature.

"Sec. 2. The sheriff of each county in this State shall, at least thirty days previously to the time for holding any election in his county, by advertisement, set up at the door of the court-house and three other public places in his county, notify the inhabitants of the time and place or places of such elections, and what offices are to be filled by such election; and the sheriff, on the days of election, shall open the poll at ten o'clock in the morning and continue the same open until four o'clock in the evening of each day, and no longer. In case a vacancy happen, and a writ of election shall be issued to the sheriff, the sheriff shall advertise the said election, and give a time as near the thirty days as the period of elections will allow, provided it be not less, in any case, than ten days."

"Sec. 7. The Representatives to Congress from this State shall be elected by the qualified electors, at the time of choosing Representatives to the Legislature, once in every two years, to be computed from the first Monday in November, in the year 1833; and the returning officer in each county shall, within fifteen days after each election, certify under his hand and seal to the Secretary of State the whole number of votes given in his county to each candidate for Congress; and it shall be the duty of the Secretary of State to sum up the whole number of votes thus returned, and declare the candidates elect, who may have the greatest number of votes, by publication in some newspaper published at or nearest to the seat of Government. It shall be the duty of the Governor to deliver to the persons duly elected proper credentials, under his hand and the great scal of the State, which shall entitle them to a seat in the body of which they are elected members."

"Sec. 10. All elections for Governor, Representatives to Congress, sheriffs, and other county officers, shall be held and conducted in the same manner; provided, that the returns for every election for Governor shall be made in the manner prescribed in the constitution."

The committee further find that the Governor of the State of Mississippi issued writs of election in form as follows, viz:

giving them a practical construction, they should not be considered applicable as affording a remedy in this case as well as those arising from death or resignation. It is eviresignation would exist in a vacancy produced by the expiration of the term of members prior to the election of their successors; and as the words used by the framers of the constitution will fairly admit of the construction contended for, we are not at liberty to say the remedy prescribed was not intended for this case. On the contrary, the committee are of opininion that the constitution authorizes the Executive power of the States respectively to order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the use of in the constitution, is not necessarily confined to fortuitous or unforeseen events, but is equally applicable to all events which by any means occur or come to pass, whether foreseen or not; and as in this case confessedly the vacancy existed, it may properly be said to have happened, although the means or circumstances by which it was brought about may have been foreseen. With these veiws, fortified by many others which might be advanced, a majority of the committee have agreed on the following resolution, and instructed their chairman to report the same to the House:

It appears by a certificate of the Secretary of State, that elections were held in fifty of the counties of the State of Mississippi, the result of which was, that the sitting members were elected by large majorities.

From a consideration of the foregoing documents and circumstances, it would seem as if the people of Mississippi had a fair and full opportunity of expressing themselves as to who should represent them in the twenty-fifth Congress. No objection is made from any quarter to the right of the gentlemen elect to their seats, only by and through themselves; on account of the peculiar circumstances under which the election was held, their own delicacy and sense of propriety have prompted them to invite a scrutiny into their right to seats in this House. In the course of the scrutiny and investigation, the attention of the committee had been called to two points, which are supposed to comprehend the only possible objections to the retention of their seats by the sitting members. The first point is, that clause of the writ issued by the Governor, wherein the election is directed to be held for two Representatives in Congress, to fill the vacancy until superseded by the members to be elected at the next regular election, on the first Monday and day following, in November next. The committee are (with one exception) of opinion, that in attempting to restrict the term of service of the members to be elected at the special election ordered as before stated, till the next regular election in November next, the Governor transcended his powers. The gentlemen elected are members for the whole unexpired term of the 25th Congress, or they are not members at all. The question then recurs-Did that illegal and restricting clause in the writ, invalidate the election? The committee were almost unanimous in the opinion, that, inasmuch as the writ was perfect in itself, without that clause, its being there does not invalidate the election held under it, but may fairly be rejected as surplusage: reject this as surplusage, then the writ is good, and the objection amounts to nothing.

But the second objection, which would seem to be more formidable, involves the question whether, in the purview and meaning of the constitution, such vacancy in the representation of the State had happened as would justify the Governor in authorizing a special election to fill it. On this question the committee were divided. A najority of them were of opinion that a vacancy existed, and such a vacancy as was pregnant with all the evils which could arise from a vacancy happening in any other manner; and as the words of the constitution are broad enough to embrace the existing case, there is no good reason why, in

Resolved, That SamuEL J. Gnouson and Jonn F. H. CLAIBORNE are duly elected members of the 25th Congress, and, as such, are entitled to their seats.

[To be appended to the above.]

ATTORNEY GENERAL'S OFFICE,
July 19, 1832.

SIR: In obedience to your direction, I proceed to state my opinion in relation to the appointment of a register of the land office for the Mount Salus district, in the State of Mississippi.

The facts in the case I understand to be these: After the adjournment of Congress on the 3d day of March, 1831, and before their meeting in December of the same year, a vacancy occurred in the above-inentioned office of register, and Samuel Gwin was appointed to fill it. During the late session of Congress, he was regularly nominated to the Senate, and rejected by them. The President having afterwards received strong testimonials in his favor from the State of Mississippi, and being requested by one of the Senators from that State to renominate him, his name was again sent to the Senate, with the additional recommendations which had been forwarded to the President. The second nomination was made on the 11th of June last. It was considered on the 10th of July, and laid on the table, and on the 16th of July, the last day of the session, the following resolution was moved and considered:

"Resolved, That the President of the United States be informed that it is not the intention of the Senate to take any proceeding on the renomination of Samuel Gwin to be register of the land office at Mount Salus, in Mississippi, during the present session."

This resolution was ordered to lie on the table, and the Senate adjourned without taking any further order in the

matter.

In this state of things, can the President, during the recess, appoint Mr. Gwin, or any one else, to the oilice be

fore-mentioned ?

The office was created by the act of Congress of May 6, 1822. As the President is required by the constitution to take care that the laws be faithfully executed, it becomes his duty to fill the offices which are necessary and

have been legally established for that purpose, provided the constitution confers on him the power.

The constitution gives him the right "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."

The appointment of Mr. Gwin, during the last recess, "filled up" the vacancy which had then happened, and the office remained full, and there was no vacancy from the time of his appointment and acceptance until the close of the late session. The nomination made, not being confirmed by the Senate, the commission granted by the President expired at the end of the session, and the moment after it closed the office again became vacant. This

was a new vacancy.

Has this second vacancy happened during the recess of the Senate, so as to authorize the President to fill it, under the grant of power contained in the article of the constitution above referred to?

It has, I know, been contended that, in order to enable the President to make the appointment, the vacancy must take place during the recess. In other words, that the office must be full at the time of the adjournment of the Senate, and become vacant afterwards.

I cannot think that this is the true interpretation of the article in question. The constitution was formed for practical purposes, and a construction that defeats the very object of the grant of power cannot be a true one. It was the intention of the constitution that the offices created by law, and necessary to carry on the operations of the Government, should always be full, or, at all events, that the vacancy should not be a protracted one. A Government cannot go on, nor accomplish the purposes for which it is established, without having the services of proper officers to execute the various duties required by law. To guard against any abuse of the appointing power by the President, the approbation of the Senate is required. But as it was foreseen, from the various contingencies and uncertainties to which human affairs are liable, vacancies might be found to exist during the recess of the Senate, in offices which the public interest required to be filled, the power above-mentioned was given to the President in order to provide against the evil of requiring a vacancy to continue in every case until the Senate could be convened; and the further evil of calling them together upon every one of the vacancies which might expectedly be found to exist during the recess. But the control of the Senate over appointments to such vacancies is effectually preserved by the limited term for which the President is authorized to make them.

Suppose an officer to die in a distant part of the United States, and his death not to be known in Washington until after the adjournment: must the office remain vacant until the Senate can be convened? It is admitted by every one that the President may appoint in such cases, and the practice of the Government has continually conformed to that construction. But if the constitution required that the office should be full at the time of the adjournment, and that the vacancy should take place afterwards, then the President could not appoint, for in the cases above mentioned, the vacancy happens during the session, and the office is not full at the time of the adjournment. It becomes vacant the moment the incumbent dies, and the notice does nothing more than inform the President that a vacancy has happened, and it informs him at the same time that it took place while the Senate was in session, and not during the recess.

I am aware that it has been said that in these cases the vacancy must be regarded as happening when the notice of the death is received, and that therefore such a vacancy is to be considered as happening after the adjournment and during the recess. But how can it be so considered Voz. XIV.A 22

[25th CoNG. 1st SESS.

in opposition to the admitted fact? There are no words in the constitution that justify such an interpretation. It does not speak of the notice of a vacancy, but of the existence of a vacancy. It does not say, if a vacancy shall become known, but if a vacancy shall "happen;" and if the words of the constitution give the power to fill those vacancies only which take place after the adjournment, then the vacancies I have just mentioned could not be filled.

It is manifest, however, that the constitution could not have intended to place such cases on a different footing from vacancies which occur after the adjournment. There is no reason for a distinction between them. And 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.' The framers of the constitution had provided for the filling the offices, with the concurrence of the Senate: but foreseeing that, from the various casualties to which human concerns are exposed, vacancies would be found during the recess, they give power to fill them, until an opportunity can be afforded of bringing the appointments before the Senate-and they use words which denote the character of the vacancies which they foresee may occur, and for which they are providing. He may fill up vacancies which “ happen" during the recess. But vacancies are not designedly to be kept open by the President, until the recess, for the purpose of avoiding the control of the Senate. And the word happen" is used to describe the class and kind of vacancies, and not the particular time at which they took place.

I might suggest another case, showing that the restricted construction contended for cannot be the one contemplated by the framers of the constitution. Suppose a nomination made to a vacant office, and confirmed by the Senate: the office is not full until the person appointed accepts. Suppose he refuses to accept, and his refusal is not known urtil after the adjournment: in such a case the original va cancy would remain unfilled; and as it took place during the session, and not after the adjournment, the President could not fill it. It cannot be imagined that such cases were intended to be excepted out of the power granted to him.

It has been said that this power, if possessed by the President, may be so used as to defeat the intention of the constitution, and exclude the Senate from all share in appointments. The answer to such an objection appears to be a plain one. If the President wilfully abuses a power given to him, the constitution has provided a remedy. In this case the Senate have had a full opportunity of acting, but have not acted, and have held the nomination under advisement, and left it to fall vacant as soon as they ad. journed. They must be supposed to have had sufficient reasons for keeping the nomination in their power, and suspending their action upon it. The President could not nominate another person for the same office until this was disposed of, and was either withdrawn by him or finally acted on by the Senate. And as the Senate have had an opportunity of acting, but have determined to suspend their decision, I cannot see how an appointment, now made by the President, can be supposed to interfere with the rights of the Senate. There is nothing in the case that can be construed into a desire to avoid their constitutional control. If, however, the restricted interpretation contended for

pestilence disabling or destroying a quorum of that body; such an invasion of the enemy as renders their reassemblage elsewhere impracticable or inexpedient, and a thousand other causes which cannot be foreseen. It may arise, too, from rejecting a nomination by the President in the last hour of their session, and inadvertently rising before any nomination can be made. In all these cases there is no guilt either on the part of the Senate or of the President. But by some casualty the vacancy happens to continue and to exist in the recess: and the public good, nay, even the safety of the nation, may require it forthwith to be filled. Looking to the reason of the case, why should not the President have the power to fill it? In reason, it seems to me perfectly immaterial when the vacancy first arose; for whether it arose during the session of the Senate, or during their recess, it equally requires to be filled. The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the President is called on to act. Is the Senate in session? then he must make a nomination to that body. Is it in recess? then the President must fill the vacancy by a temporary commission.

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.

The opposite construction is, perhaps, more strictly consonant with the mere letter. But it overlooks the spirit, reason, and purpose; and, like all constructions merely literal, its tendency is to defeat the substantial meaning of the instrument, and so produce the most embarrassing inconveniences.

The construction which I prefer is perfectly innocent. It cannot possibly produce mischief without imputing to the President a degree of turpitude entirely inconsistent with the character which his office implies, as well as with the high responsibility and short tenure annexed to that office; while, at the same time, it insures to the public the accomplishment of the object to which the constitution so sedulously looks, that the offices, connected with their peace and, safety, be regularly filled.

I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT.

The PRESIDENT of the United States.

NATIONAL BANK.

Memorial of the Chamber of Commerce of New Orleans, in the State of Louisiana, praying for the establish ment of a National Bank. September 12, 1837, referred to the Committee of Ways and Means. To the Senate and House of Representatives of the United States of America in Congress assembled: The memorial of the New Orleans Chamber of Commerce respectfully represents:

That the deplorable condition of the currency, and the consequent depressed state of the commercial and other great interests of the country, have induced your memorialists to inquire into the causes which have led to this result, with the view of ascertaining such remedial measures as it may be in the power of Congress to apply; with a firm reliance that the wisdom and patriotism of the representatives of the nation will insure that mature consideration of this important subject, and will induce such action as will relieve our country from the unprecedented embarrassment under which it now suffers,

In submitting the views of the Chamber of Commerce of New Orleans on the subject, it is deemed proper to take a retrospective view of the condition of this country during the existence of the late National Bank, and also of its

[25th CoNG. 1st Sess.

condition since the extinction of said bank under the State bank system.

During the former period, the prudential course of policy pursued by that institution preserved the great interests of the country generally in a sound and healthful state; property had a gradual and natural upward tendency; agriculture, manufactures, and commerce were in a flourishing condition; extravagant speculations were rarely entered into, or, if entered into, were speedily checked by the wholesome restrictive power judiciously exercised by the bank; the sales of the public lands were proportionate with the natural demand consequent on the increase of population and wealth; the national revenues, increasing from the same causes, were collected and disbursed throughout our extended territory without expense and without loss. Among other advantages that experience has proven were derived from this institution, the following may be adduced: 1st. Its circulation had such universal confidence that it could be, and was, rendered practically useful for all commercial and domestic purposes, from one extreme of the Union to the other, at its nominal value, without any discount whatever.

2d. It regulated, on safe and equitable principles, the course of domestic and foreign exchanges; by the former, the people were enabled to transmit funds from one distant place to another at a reasonable charge; and, by the latter, it checked the export of the precious metals, when the rate of premium, owing to large importations of foreign merchandise, or other causes, was advancing so as to tempt their exportation.

3d. Its discounts of local business paper were generally fully adequate to the legitimate wants of the community; and its aid, in this respect, was often interposed when the then comparatively few State banks were unable to give the needful assistance.

4th. Its vast means, in consequence of the universal confidence in its emissions, enabled it to expand during those periods of commercial pressure that are unavoidable, and that cause a rapid contraction of the means of local barks, at the time their aid is most required by the community.

5th. It exercised a wholesome check on the emissions of the State banks, whenever these emissions were exces-" sive, and were tending to introduce a spirit of dangerous speculation.

6th. Pending the existence of the National Bank, manufactures of all kinds, raw produce, &c., generally bore a value about commensurate with the proportion of supply and consumption; consequently, investments made therein were comparatively safe to the parties concerned, and, therefore, to the public at large.

In the year 1830 the opinion generally obtained that the charter of the Bank of the United States would not be renewed, and, in 1832, the veto of the President confirmed that opinion: measures were then taken by Government to increase the metallic circulation, by augmenting the value of gold beyond the standard adopted by other nations. In consequence of these steps the public mind was directed, with intense interest, to the course which it would be proper to pursue, in order to supply the diminished facilities that would result from the extinction of the National Bank. A new impetus was given to the creation of State banks, until their number was increased from 329, in 1830, to 823, in 1837, making an additional number of 494; while from 1816 to 1830, a period of fourteen years, the increase had been only 83.

The State banks, relieved from the restraining power so judiciously exercised by the National Bank, accorded unreasonable and indiscriminate credits, and increased the paper circulation of the country one hundred and twentyfive millions of dollars; a feverish impulse was given to all classes of society; an unnatural rise occurred in all species of property; the sales of public lands were increased from