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The first question is expressly decided by the Constitution, which declares that vacancies may "happen by resignation."
The second question is decided by an unbroken succession of precedents from the foundation of the government. Mr. Bledsoe so resigned, fixing a future day; so did Mr. Clay in 1842, and so did Mr. Berrien in 1852, and so did Mr. Foote in 1852.
The third question is answered with equal distinctness by precedents. The Legislature of Kentucky prospectively filled the vacancy made by Mr. Clay's resignation in 1842; the Governor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852; and the Governor or Legislature of Mississippi prospectively filled the vacancy of Mr. Foote in 1852.
The only question remaining is the fourth: Can the death of the resigning senator after the legislature has prospectively filled the vacancy, and before the day fixed for his retirement, defeat the appointment of his successor already made?
No such event has happened before this, and so there is no precedent. On each side we are left to reason a priori.
1st. Now, it is clear that the resignation and appointment are not on any expressed condition that the resigning senator shall live until the day fixed for his retirement; but it is, on the contrary, on its face unconditional and absolute. There are two parties, and only two parties, to the act-the senator who resigns and the state which receives the resignation and appoints the successor. Both these parties agree that the resignation shall be unconditional and absolute on the face of the transaction.
2d. Has the resigning senator any reserved power over his resignation, arising from implication of law after delivering or publishing it, to revoke it or to defeat the prospective appointment of his successor already made? No! In Bledsoe's case, that senator, when the day fixed for his retirement arrived, declared his purpose to revoke his resignation, and to retain the seat. The Senate decided that he could not; that his resignation was beyond his control, and was absolute.
If the retiring senator cannot revoke his resignation, and so defeat the prospective appointment of his successor already made, then it is equally clear that he cannot, by giving up his seat and retiring before the day fixed by his previous resignation, annul the effect of that act, or defeat the prospective appointment of his successor already made; for if he could, this would be to allow
that he could do in one way what he could not do in another; that he could do by indirection what he could not do directly.
4th. What is the reason why the resigning senator may not, by revocation, or by another act of resignation in the interval, defeat the prospective appointment of his successor already made? It is because the act of resignation, when delivered or published, and especially when received and made the foundation of the prospective appointment of his successor, is a fait accompli,—a vacancy is perfectly made and is perfectly filled. Whatever afterward may be done or may happen, the appointed successor has a title to the place to which he is thus appointed, which is necessarily indefeasible.
5th. And now, if the retiring senator cannot defeat the prospective appointment of his successor, neither by revoking his resignation nor by a second and intermediate act of resignation, then he cannot defeat it by dying, whether his death be voluntary or involuntary. The policy of the constitution is the same in whatever way the obstruction to the act of the state appointing the successor may offer itself. The first resignation was complete and indefeasible, and the appointment of the successor is also complete and indefeasible.
I proceed to notice the objections to this view. First, that by dying before the day fixed for retiring, the resigning senator makes a vacancy which renders the happening of the one contemplated in, and consequent upon, his resignation impossible. reply, he does not make it impossible. Certainly, when the day fixed arrives, the seat is vacant equally, whether the resigning senator is dead or then retires. He does one of two things-either, first, he makes an interruption of representation which cannot be filled up until the day for his successor to enter shall arrive; or, second, he makes a "temporary vacancy" which can be filled up by the competent authority until the day when the successor can enter shall have arrived. This latter view has been adopted by the Governor of Kentucky, in his temporary appointment of Mr. Meriwether, and seems unobjectionable.
2d. It is objected that the happening of a vacancy cannot be divided into two parts-one a resignation prospective, and the other an ulterior retirement from office; that the transaction is a whole, and all its parts must occur, or the resignation will be void.
But the constitution manifestly contemplates the happening of two vacancies by such a division. All the senators first chosen, were chosen for six years. The constitution declared that the seats of one-third of them should be vacated at the expiration of two years. But what if one of that one-third died before that day? Why, his seat nevertheless was vacated at the expiration of the two years, but in the mean time it was also vacated, and a temporary appointment was made to fill the temporary vacancy until the happening of the regular vacancy at the end of the two years; and so we practice on the same principle now, vacating one-third of the Senate absolutely every two years.
3d. But it is said that if a senator may resign and fix a day in future one month distant, he may fix one five years distant. And it is asked whether the Legislature, being in session when such a resignation is received, can fill the vacancy which is so postponed in effect for five years to the prejudice of the right of the legislatures assembling afterward and before the day limited? I reply, that is a question which does not arise here. It is enough that the senator has a right to say to his state, I will serve you one, or twoor three, or four years, or five years, and no longer. And the state has a right to say we will accept your services for that time, and dismiss you afterward. If a question shall arise what legislature meeting within the period has the right to fill the vacancy, it can then be met-it has not arisen here.
Thus the legality of Mr. Dixon's title seems to result from the constitution and the precedents; and assuming this view, the case presents the not unfrequent one of an ascertained vacancy occurring at a future day, and anticipated and filled, and an intervening temporary vacancy also temporarily filled and expired. If this view is correct, it is unnecessary to examine the pretensions set up, not by Mr. Merriwether, but in his behalf by senators.
Mr. President, this question has bearings upon the present and the State of Kentucky, and also upon the future and the whole Union. A rejection of Mr. Dixon, who comes with a plenary commission unanimously confirmed by the Legislature and Governor of Kentucky, and an admission, on the contrary, of Mr. Merriwether, who not only presents no such commission, but presents no claim, and does not even appear, will, I think, deeply disturb Kentucky and alarm all the other states. This alarm will be increased by the fact that the proceeding will operate to
strengthen and increase the provisional prerogatives of the governors of the states at the expense of the power conferred by the constitution on the legislatures of the states; for nothing is clearer than that the power conferred on the governors to fill vacancies was designed to be occasional, and exceptional, and subordinate to that devolved on the legislatures, which was designed to be general, complete, and supreme.
You will also excite new and painful apprehensions of another and even more grave kind. The House of Represents a Legislative assembly, drawn out by representation of the whole Union as one undivided country and people; and the constitution of that House is a great centripetal power acting toward consolidation. But the Senate is composed of an equal delegation of the several states, appointed by the states. Senators are in a manner ambassadors of the states, and the control exercised by the states in their appointment, without interference from the center, constitutes a centrifugal force important to the preservation of the states in their qualified, constitutional independence. Hitherto the Senate of the United States has received whomsoever have been sent by the states, only examining their qualifications when desired, or deciding judicially between contestants. But if now we reject one who is sent with full authority, and whose title is not denied from without this body, and call in one who is not sent with any such authority, we shall shake the confidence which has hitherto been enjoyed by the Senate, and raise alarms for the safety of the states, and thus weaken the bonds of the Union.
NOTE.-The following is an extract from the proceedings of Congress, on the day the above speech was made. The question being taken on the resolution, declaring Mr. DIXON duly elected Senator from Kentucky, to fill the vacancy caused by the resignation of Mr. CLAY, and that he be now admitted to his seat, was adopted. Yeas 27-Nays 16-as follows:
AYES-Messrs. Adams, Atchison, Badger, Bell, Brooke, Butler, Chase, Clarke, Cooper, Davis, Dawson, Dodge of Iowa, Fisk, Geyer, Hale, Jones of Tennessee, Miller, Morton, Pearce, Rusk, Seward, Smith, Spruance, Sumner, Underwood, Upham, Wade.
NAYS-Messrs. Bayard, Borland, Bradbury, Bright, Cass, Cathcart, De Saussure, Dodge of Wisconsin, Douglas, Downes, Felch, Gwin, Mason, Morris, Toucey, Weller.
Mr. DIXON was then sworn in, and the Senate adjourned.-ED.
THE SENATE OF THE UNITED STATES
REV. THEOBALD MATTHEW.*
DECEMBER 20, 1849.
I THINK, sir, that men often disagree in regard to the merit of the living, but seldom differ in regard to the merit of the dead. This capitol, its halls, its chambers, and its grounds, are filled with statuary memorials of the illustrious benefactors of mankind, of other nations as well as of our own; and these memorials are looked upon with pleasure and satisfaction by all the living. But there is a painful reflection that occurs to us when we raise these monuments in honor of the dead. They can convey no encouragement to the benefactor in the prosecution of his philanthropic enterprises. They convey to him no sympathy in the sufferings which he endures. The resolution before the Senate presents a very different occasion-an occasion in which we can, without danger of error, recognize a public benefactor-a benefactor of mankind; and in which the homage which is offered is unalloyed by the painful reflection that marble cannot hear and cannot feel. I need no argument to convince me that it is unnecessary to establish any connection between this illustrious benefactor of the human race and our own country, in order to entitle him to the compliment which it is proposed to offer him, because I regard the interests of the American nation as the interests of humanity; and whoever, in any part of the globe, has relieved the condition of any portion of the human race, I look upon as entitled to the approbation and the gratitude of the American nation.
* Remarks on a resolution inviting Father Matthew to a seat on the floor of the Sen ate, which was adopted by a vote of 33 to 18.-Ed.