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That so long hereafter as any force shall be maintained in those north-eastern waters, an equal naval force must be maintained there by ourselves. When Great Britain shall diminish or withdraw her armed force, we ought to diminish or withdraw our own; and that in the mean time a commission ought to be raised, or some appropriate committee of this body-the Committee on Foreign Relations, the Committee on Finance, or the Committee on Commerce should be charged to ascertain whether there cannot be some measure adopted by reciprocal legislation to adjust these difficulties and enlarge the rights of our fishermen, consistently with all the existing interests of the United States.
CONTESTED SEAT OF ARCHIBALD DIXON.
DECEMBER 20, 1852.
MR. PRESIDENT:-Since I adressed the Senate in favor of allowing Mr. Dixon to take the seat he claims, provisionally, it has been pleased to receive for consideration a proposition to admit him, without reservation, as a Senator from Kentucky.
The action of the Senate, at least in one event, will be canvassed throughout the country, and for many years; I shall therefore assign the reasons for my vote.
The question involves a construction of the Constitution.
The only portions of the Constitution touching the case are these:
"ART. 1, SEC. 3. The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years." * "2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year, and of the third class, at the expiration of the sixth year; so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.
"SEC. 4. The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators."
Kentucky has prescribed in this matter for herself, and Congress has not, at any time, by law, "made or altered any regulations concerning it.
The following facts make up the case. On the 17th of December, 1851, Henry Clay was a Senator from Kentucky, chosen by the legislature, for six years, which would have expired on the 3d of March, 1855. Being so a Senator, he resigned by a communication to the Legislature of Kentucky, declaring that it was to take
effect on the first Monday in September, 1852. The legislature, then in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur, from the first Monday in September, 1852, to the 3d day of March, 1855. The legislature then adjourned. On the 29th day of June, 1852, during the recess of the Legislature of Kentucky, Mr. Clay died, and the governor of that state made a "temporary appointment" of Mr. Meriwether as a senator from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meriwether immediately took the vacant seat, and held it until the Senate adjourned on the last day of August, 1852. On the 6th of December, 1852, the Senate re-asassembles, Mr. Meriwether does not appear, and Mr. Dixon appears and presents his credentials, and claims the vacant seat.
Manifestly, Mr. Dixon is one of two senators "chosen by the Legislature" of Kentucky, "for six years," and he was chosen to fill a vacancy which has happened in the term of Mr. Clay.
The whole question turns on the point, How did this vacancy happen? Mr. Clay resigned, fixing the first Monday of September as the day when he should vacate his seat, and died, nevertheless, a Senator before that day arrived. Mr. Dixon was appointed by the legislature when in session, before not only the day which Mr. Clay's resignation fixed for his retirement, but also before Mr. Clay's death.
We, who maintain Mr. Dixon's title, insist that the vacancy happened by Mr. Clay's resignation. On the contrary, those who deny Mr. Dixon's title, insist that the vacancy happened by Mr. Clay's death.
Four questions arise: First, can a senator resign? Second, can a senator resigning appoint a future day for his retirement from the Senate?
Third. Can the proper appointing power receive such a resignation, and prospectively fill the vacancy?
Fourth. If the legislature so prospectively fill the vacancy, can the appointment be defeated by the death of the resigning senator before the arrival of the day fixed for his retirement from the Senate ?
If a senator can resign, and can so resign prospectively, and if the legislature can so fill the vacancy prospectively, and if their action cannot be defeated by the death of the resigning senator, then Mr. Dixon's title is good, valid, and complete.
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. I 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.