is still open.

15 See the New York World of August 24, 1893. A motion to reconsider was defeated on August 28, by 28 yeas to 31 nays. This was followed in one or two other cases at the same session.

16 At that time, the Senate was engaged in a prolonged contest over the repeal of that part of the Sherman Act which compelled monthly purchases of silver; and the persons who had been appointed senators would have added to the strength of the minority. The previous cases upon the subject were as follows: In the case of Kensey Johns of Delaware, in 1794, it was resolved by a vote of 20 to 7 that where a session of the legislature had intervened between the resignation of a senator and the appointment by the governor of Mr. Johns as his successor, the appointment was invalid (Taft's Senate Election Cases, continued by Furber, pp. 1, 2). In the case of Uriah Tracy of Connecticut, in 1801, the Senate, by a party vote of 13 to 10, admitted Tracy, who had been appointed by the governor during a recess of the legislature to fill a vacancy caused by the expiration of his own previous term (ibid., p. 3). In the case of Samuel Smith of Maryland, in 1809, Mr. Smith was admitted to the Senate under similar circumstances (ibid., p. 4). In 1809, Senator Joseph Anderson of Tennessee, and in 1817, Senator John Williams of the same State, were respectively appointed by the

governor of that State before the expiration of their terms to fill the anticipated vacancies until the legislature should supply them. They took their seats without objection or discussion (ibid., p. 6). In the case of James Lanman of Connecticut, in 1825, the Senate refused to admit Mr. Lanman, who had been appointed by the governor previous to the expiration of the term of his successor to fill the vacancy thus anticipated until the legislature which met a few months later should supply it. The vote was 23 to 18 (ibid., pp. 5, 6). Whether the ground of the exclusion was that no vacancy existed, or that the executive could not supply a vacancy before it happened, has been disputed. (Compare the argument of Senator Vest of Missouri in Blair's Case, ibid., 37-39, with the argument of Senator Hoar in the same case, ibid., 41-42, and the minority report of the Committee on Privileges and Elections which was approved by the Senate in Bell's Case, ibid., pp. 3132.) In the case of Ambrose H. Sevier of Arkansas, in 1837, the duration of the term of Sevier, after his election, had been determined by lot and expired within a less time than six years. The governor, before its expiration, appointed Sevier senator to fill the anticipated vacancy until the legislature could supply it. The Committee on Privileges and Elections approved the decision in Lanman's case, stating: "This decision

seems to have been generally acquiesced in since that time; nor is it intended by the committee to call its correctness in question. The principle asserted in that case is that the legislature of a State, by making elections themselves, shall provide for all vacancies which must occur at stated and known periods; and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution. The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office under his election made by the legislature of Arkansas was decided by lot, agreeably to the provisions of the Constitution on that subject. After the decision thus made, the legislature of Arkansas, not being in session, could not supply the vacancy; and the case, in the opinion of the committee, comes fairly within the provision of the Constitution contained in the third section of the first article, which declares, 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.' The committee are of opinion that Mr. Sevier is entitled to his seat under the executive appointment of the 17th of January, 1837." The report of the committee was sustained by a vote of 26 to 19, Webster being in the minority (ibid., pp. 7-9). In the case of Charles H. Bell of New Hampshire, in 1879, upon the expiration of the senatorial term, two legislatures had been elected. The Senate had adopted the report of the Com

mittee on Privileges and Elections that the legislature last elected, but the term of which had not yet begun, was entitled to elect the new senator. The governor appointed Mr. Bell to fill the vacancy between the expiration of his predecessor's term and the supply of the same by the new legislature after its organization. The Senate by a vote of 35 to 28, which was not divided upon party lines, rejected the report of its Committee on Privileges and Elections and admitted Mr. Bell to the seat (ibid., pp. 26-35). In the case of Henry W. Blair of New Hampshire, in 1879, a similar ruling was made by a vote of 36 to 20 (ibid., p. 36). In the case of Horace Chilton of Texas, in 1891, the governor had appointed Mr. Chilton to fill a vacancy occasioned by the resignation of a senator before the period when the resignation took effect. The question was raised whether the governor had the power to appoint Mr. Chilton before the resignation took effect. The Senate adopted the report of the Committee on Privileges and Elections, and admitted Mr. Chilton (ibid., pp. 48-51). The report cited the case of Robert M. Charlton of Georgia, who was thus appointed by the governor. His appointment took effect from and after the date for which his predecessor had resigned (Senate Journal, 1st Session, 32d Congress, p. 468). If this point, consequently, was decided in Lanman's case, it was then formally over

ruled. The matter rested there until 1893, when the decision was made in the Montana case of Lee Mantle, which was followed at the same session in two other cases arising from similar appointments by the government of Washington.

§ 80. 1" At the origin of the Government, the Senate seemed to be regarded chiefly as an executive council. The President often visited the Chamber and conferred personally with this body; most of its business was transacted with closed doors and it took comparatively little part in the legislative debates. The rising and vigorous intellects of the country sought the arena of the House of Representatives as the appropriate theater for the display of their powers. Mr. Madison observed, on some occasion, that being a young man, and desiring to increase his reputation, he could not afford to enter the Senate; and it will be remembered, that, so late as 1812, the great debates which preceded the war and aroused the country to the assertion of its rights, took place in the other branch of Congress. To such an extent was the idea of seclusion carried, that, when this Chamber," the room now occupied by the Supreme Court, "was completed, no seats were prepared for the accommodation of the public; and it was not till many years afterwards that the semi-circular gallery was erected which admits the people to be

witnesses of your proceedings. But now the Senate, besides its peculiar relations to the executive department of the government, assumes its full share of duty as an equal branch of the legislature; indeed from the limited number of its members, and for other obvious reasons, the most important questions, especially of foreign policy, are apt to pass first under discussion in this body, and to be a member of it is justly regarded as one of the highest honors which can be conferred on an American statesman." (Address of Vice-President Breckinridge before leaving the old Senate Chamber for the new, January 4th, 1859, Senate Journal, 35th Congress, 2d Session, p. 96; Congressional Globe, 1858-1859, Part I, p. 203; Furber, Precedents relating to Privileges of the Senate, p. 3. See also an article by James C. Welling, in the National Intelligencer, October 30, 1858, quoted in Lieber's Civil Liberty, ch. xiii, appendix; Boutmy, Études de Droit Constitutionnel, pp. 118-122. The last is a small work which shows great learning and acuteness.)

2 Only eleven States were at first represented; North North Carolina and Rhode Island ratifying subsequently (supra, § 29).