The Congressional Globe, Volume 26: Thirty-Second Congress, Second Session Page: 18
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18
THE CONGRESSIONAL GLOBE.
Dec. 7,
of the United States; and the po wer of both is to
be found in the same clause. When did my late
distinguished colleague resign? He resigned in
the month of April last, but his resignation was to
take effect on the first of June. The Senator from
Maine [Mr. BradburtI says a Governor cannot
appoint until a vacancy has actually occurred, and
he seems to draw from hence the conclusion that
the Legislature, in like manner, cannot appoint
until the vacancy has actually occurred. Is that
true? Where is the article of the Constitution
preventing it ? Where is the opinion of a single dis-
tinguished jurist or a constitutional lawyer, from
theYoundation of the Government to the present
hour, denying the power to the Governor or to
the Legislature ? Nowhere. My present colleague
■was appointed on the 17th day of May, his ap-
pointment to take effect from the first of June.
Why was he appointed in that way? In order
that he, as the successor of Judge Berrien, might
be here on the first day of June, so soon as Judge
Berrien vacated the seat, in order that the State of
Georgia, under the Constitution—which contem-
plated that each State should uniformly and stead-
ily have two Senators in this body—might be fully
represented. That is the reason of it.
Why, let me suggest a case to the Senator from
California: Suppose he desired to resign to-mor-
row, but did not wish to deprive his State of two
Senators upon the floor; if the Governor of Cali-
fornia could not appoint until after the day of the
resignation, it would be probably two months be-
fore" there would be a successor here to take the
seat. Did the Constitution of the United States
ever contemplate that a man must resign on a
particular day, and that the very day he resigns
he must leave the seat, and thereby leave a place
vacant in the Senate of the United States ? Under
such a state of things, the more distant a State
was from the seat of Government, the longer a
vacancy would exist. From the foundation of the
Government the practice has been different. In
1815, in the case of Bledsoe, the Senate decided,
by a solemn vote of 27 to 6, that a Senator had a
right to resign in anticipation. And what was the
principle of that case? Look back at the debates,
and you will find that the idea was tliis: the res-
ignation might be made to take effect by a given
day, so that in the mean time the elective, or the
appointing power, should have an opportunity of
appointing a successor to be in the Senate to fill
the seat at the time the vacancy should actually
occur.
My friend'from South Carolina says that he
has now no doubt that a Senator may resign, to
take effect in fiituro. If he may resign, to take
effect in futuro, it is for the purpose of enabling
the appointing power to fill the vacancy in antici-
pation of the day upon which the resignation is to
take absolute effect; and, in his language, the res-
ignation is a deed executed, and the person who
has the right under that deed, either to fill the
seat,«r to designate who is to take possession of
the property, can fill it in anticipation; and when
he comes here with the deed made out in antici-
pation, and presents it on the proper day, it takes
instantaneous effect, and the party holding it is
entitled to be admitted to the seat. And it is right
that it should be so. Now, if it be true that Mr.
Clay had a right to resign in anticipation, the
elective power had a right to fill the vacancy in
anticipation. The Legislature of Kentucky being
then in session, elected the present applicant, the
Hon. Mr. DixoR, to take the seat under the pre-
cise power under which the Governor of Georgia
appointed my present colleague.
I wish it to be understood that I do not say all
this is right. The decision of 1815 may have
been wrong, and the subsequent practice may
have been wrong; all I say is, that if this course
has been admitted by Congress—if it has been
acquiesced in by the States, and become the prac-
tice of the Government here, and the practice of
the governments of the States, when this gentle-
man presents himself here, it is but courteous to
the State—it is but pursuing the uniform course,
to permit him to take his seat upon the prima facie
case. And why? Because the State is entitled
to two Senators, and he makes out a prima facie
case. Such has been the reason for the practice
heretofore. It has always been thought desirable
to keep the Senate full. Why shall we now ob-
ject to the ordinary eourse being pursued}
I hold in my hand the credentials of my col-
league. They are dated on the 17th day of May
last; and they authorize him to take his seat on
the first day of June in place of Judge Berrien; and
if he had been here on the last day of May, sit-
tin^ behind Judge Berrien, he would have had a
right to step in the next morning and take a seat
in his place. But, sir, what does all this prove?
That the Governor of Georgia and the State of
Georgia believed that Mr. Berrien had the right
to resign in anticipation.
Moreover, it is said that the certificate is n«ll
and void unless it states in the words of the Con-
stitution that the appointee is to hold " until the
next meeting of the Legislature." Why, the
certificate of my colleague—which is on parch-
ment, and in a form coeval with the existence of
Georgia as a State of this Union—is not that his
term shall be " until the next meeting of the Le-
gislature," but that it shall be till the 3d day of
March next. Why was this? Because, before
the resignation of Judge Berrien, in anticipation
of the vacancy which would occur after the 3d of
March, 1853, the Legislature, in the latter end of
1851, had elected Robert Toombs to fill the term
commencing from and after the 3d of March next.
Judge Berrien resigning in the mean time, my col-
league comes in to fill the vacancy thus existing;
whTch is a vacancy precisely similar to that cre-
ated by the death of Mr. Clay. Here are two
cases precisely analogous. Was there any law
violated; was there any precedent violated by
allowing my colleague to take and hold his^eat
under these circumstances? Not at all. \Wen
he came here I had the honor of presenting his
credentials, and I did it with very great pleasure.
They were read to the Senate. Did anybody ob-
ject to their informality because they stated that
he was appointed until the 3d of March next, in-
stead of until the next meeting of the Legislature?
Not at all. But he took his seat; and for what
reason ? Because the broad seal of Georgia was
prima facie evidence entitling him to do so. Could
not Mr. Toombs have come and contested his
seat? Could not anybody else have come and
contested his seat? Certainly they could if they
had any ground to do so.
How does the honorable Mr. Dixon come hsre?
With a commission stating that he has been elected
a Senator in the Congress of the United States by
the Legislature of the State of Kentucky, to hold
from and after the first Monday in September,
1852. What is the effect of that certificate ? Cer-
tainly it is the highest evidence that the Legisla-
ture of Kentucky has done the deed; and the
question is, whether, under the Constituttion,
they had the power to do it? There is no doubt
of the power; and the presumption is, that they
have exercised it correctly. If these presump-
tions are in his favor, he is entitled by courtesy
to take the oath. But these presumptions may
be all set aside by somebody coming in and con-
testing, and alleging that he was not constitu-
tionally elected—that the Legislature was not the
proper body—and that it had noUhe power to
elect; but is there any suggestion of that kind ?
And even if there were sach suggestions, what
would courtesy demand of us? Should we not do
precisely what was done in the case of Robbins
and Potter, claiming seats as Senators from Rhode
Island? That difficulty occurred in this way:
There was a Whig Legislature, and they elected
Mr. Robbins Senator. Before Congress met, the >
Legislature was called together again. There was
a change in its political character, and at this ses-
sion Mr. Potter was elected. Both of them came
here with the broad seal of the State. Mr. Rob-
bins was first elected, and his credentials were pre-
sented. What did the Senate do then ? Mr. Rob-
bins was the first man elected, and his credentials
showed it; and out of courtesy to the State, and
in obedience to what was due to its sovereign
j power, the Senate said the credentials of Mr. Rob-
! bins show & prima facie case, and we will admit
him to his seat; afterwards we can refer the mat-
ter to a csmmittee to investigate whether anything
was unconstitutional; and we can then, if we find
it proper, deny Mr. Robbins the seat, and give it
to Mr. Potter. There is no contest of that kind
here; and I appeal to the dignity of the body, and :
to the courtesy of the body, to follow the prece-
dent of that case, and allow Mr. Dixon to be ad- j
I mitted to his seat. !
! Why should the Senate refer the credentials of 1
i Mr. Dixon to a committee, when it has never \
been done in such a case ? Why is it that the
broad seal of Kentucky is to be thus treated when
the broad seal of no other State has ever been so
treated ? But it is said that there is testimony in
this case showing that Mr. Dixon is*tiot entitled.
[ say the testimony is the very reverse. The tes-
timony of Mr. Meriwether's credentials is on
our records; and his credentials gave him power
to act as Senator only until the first Monday of
September last. He was Senator until that time
by appointment of the Governor of Kentucky.
Then here is the Governor's certificate to Mr.
Dixon, informing him that he has been elected by
the Legislature to be Senator from and after that
day. Where is the conflict, or where is theground
which will justify us, in our own consciences, in
saying that Kentucky shall not be permitted to
take her proper constitutional position in the Sen-
ate ? There is not a particle of difficulty; there is
no conflict between the two commissions. It has
not been said that Mr. Bixon's election was unfair
or unconstitutional; but it is merely supposed that
somebody else—for instance Mr. Meriwether—
may be entitled to the seat, whereas the record
shows that Mr. Meriwether is not entitled to act
now as Senator.
I do not say how I shall vote on the final ques-
tion as to the right to the seat, after it shall have
been examined. I am, however, in favor of the
amendment of my friend from North Carolina,
which is, that Mr. Dixon shall be permitted to
take the oath of office before any reference be
made. I shall vote for that amendment; but if
that does not prevail, I shall be willing to bow to
the will of the majority and submit to an imme-
diate reference.
I think, Mr. President, that during your long
experience in this body, you have never known
such an application as the present one to be de-
nied. I do not think there has been any case since
you have occupied that chair or have been a mem-
ber on this floor, where a member presenting the
broad seal of his State, was not permitted to oc-
cupy the seat; and if there was a contest, it was
to be settled afterwards. It has always been cus-
tomary to endeavor to keep the representation of
the States full. I hope this application will be
agreed to for the sake of consistency, and for the
purpose of having uniformity . Our institutions
depend very much upon a uniformity in the con-
I struction of the Constitution, and I at least like to
see uniformity of action in the body to which I
belong—the Senate of the United States. There
will be no harm done to any human being by this
course.
It is said that there are doubts as to whether
Mr. Dixon is entitled to the seat. If there be
doubts, as the Senator from Tennessee has said,
to whom should you give the benefit of them? Of
course to the party claiming the seat under the
broad seal of one of the sovereign States of this
Union, equally interested with us in preserving
the Constitution. Hence it is that I say he should
be permitted to take his seat, and then, when the
report comes in, in the language of the Senator
from South Carolina, we can consider it maturely.
By the course that I have proposed, we shall stick
to precedent, and cannot be charged with evasion,
or with changing our course for any consideration.
Mr. BADGER. Mr. President,from what has
fallen from the gentlemen who have addressed the
Senate upon this subject, it appears to me unde-
niable that there are some difficulties connected
with the inquiry suggested by the resolution of the
Senator from California. I am not prepared now
to express any definite opinion as to the proper
course which the Senate should adopt in regara to
the subject under their consideration. I have not
been able, so far, to see the necessity for any ref-
erence of this question to a committee. The facts
of the case are all before the Senate; no evidence
is to be heard by a committee; no inquiry is to be
made by which the state of the question before the
Senate can be varied or affected; but still, sir, it
may, for aught I am able at present to perceive, be
necessary, or, if not necessary, proper that there
should be a previous investigation by a committee.
It is highly important, at all events, that this ques-
tion should be fully considered, and be fairly and
impartially decided. I am not prepared at this
moment to vote upon the question under consider-
ation before the Senate. 1 think ample opportu-
sity should be afforded to every member of the
i body to make up a definite opinion upon it; and I
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United States. Congress. The Congressional Globe, Volume 26: Thirty-Second Congress, Second Session, book, 1853; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30783/m1/58/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.