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t 'f i. if i; ( A J-" i V .1 i c nmoriinr rsiToillt rw x 11 L V t v v - - - " , - " a. Senator jo succeed Mr. Slangnm. Mr. Holdkx Hear Sir.- The accompanying; ar ticU is upon a subject of areat interest, and especially to North Carolina at tins time. 1 Hive 2 tl 11 Uluctl cuiisiuoioiivn -u Jl Tim,, and labor, of which I am desirous that . L . 1 1 ri onn IL II : any who may choose may derive the Dentin. It may not convince any one who holds - J.lTenl opinion from myself; but it may W" omrthinS to them which might not olherw.se have occurred. r. . . -. in vournaner you wih Dy giving 11 an niacin"" j - oblige Your obedient STRANGE. Raleijrh, January 13ih, IS53. AN" AUGUMSNT'upon the question whether J, Etecutioe of the State ha, tinder the Con stitution, the power of appointing a Senator in -.7 ' na uiUm term has r.rnin'U durill f ins J r. ...1 . i. T..,;1,fire. r 0 me S'rUZ iJf TAWUt; ft'. v-f'fSVf iirr.ii urAenr n?7Aer the L'gislature of the Stats nor Congrens has fixed by law the time of appoint ing Senators. M. . a. .rf y xan nvtii II r :ll7nr 1 iJ ' I. 1. 1 .II I f rxfr . ll'.r , At ths last session of the iVortn oaronna i.egisu 'Ph- nnMtinn conseauently arises, whether the State shall have only o ,e Senator m Congress until the next meeting of the Slate Legislature, or shall one he appointed by the Executive of the Sta:e? The latter part of the 2d clause of the 3d section of the 1st article of .the Constitution of the United States declares: " And if vacancies happen by resig nation or otherwise during the recess ot the ljegisia of any S'.ats the Executive thereof may make lorary appointments until the nuxt meeting of the ture lemn f .Arrieliktn ra whir-li shall then fill such vacancies Vnr it wmilH sirikea nlain man on the 4lh of March next, when Mr. Mingum's term of ofitce tihall have expired, that a vacancy has happnnird. For there will be nobody then in the office, and it will of course be Tacant, and as the Legislature will not be in ses- sion at that time, this vacancy will have happened duriner its recess. An unsophisticated mind would le quTte at a loss for any argument against a propo - nition so tlain. But there is a proneness in educal- ed and ingenious minds to exercise their ingenuity in discovering in language some dee meaning which would not naturally occur to plain or illiterate men, and to extract frcm it soma hidden element tc astonish and bewilder these simple persons. And accordingly ingenuity has been taxed to prove that these few plain words of the Constitution are not to ba unJerstoud in their obvious meaning. In the first place it is said that in the case supposed there is no vacancy that there is an expiration, and not a vacancy. What has expired 1 Not the office, hut the term of the incumbent's occupancy. The office still exists, but as there is no one occupying it, it is vacant. If the office itself had expired it could never be renewed, for the office was created by the framers of the Constitution, and by them it was made as perpetual as the Constitution itself. They did not devolve upon any body the power of creating the office, but only the power of selecting persons to fill it. The lime for which any one could fill it, under any one appointment, could not exceed six year9, and when that period rolls around the office does not expire, but ihe incumbent's term, and when that term does so expire the office becomes vacant until some one else is placed in ii. This, it is true, is only one mode by which a vacany may occur there are others, to wit: by death or resignation, and although possibly there may still be some other, it is not clearly seen that there can te. Bat these three cases it seems hardly'possible to doubt arc all cases of vacancy. The two last are admitted to be so, and the first must be, unless we insist tint an office may exist with no one occupying it, and yet not be vacant. Besides, why should the Convention use the word " otherwise," so extensive in its signification, if on'y two possible events were contemplated. Again, it is said that the use of the word " happen " in this part of ihe Constitution, instead of occur or some other word, was for the purpose of excluding this kind of vacancy from the power of the Executive to fill. For, say they, happen cannot properly be applied to an event which will certainly take place at a given time ; and when the fra.ners of the Con stitution used it in reference to vacancies they could not have intended such vacancies as would certainly occur at a given time, an ! purposely used the expres sion that their language might only apply to such vacancies as were of uncertain occurrence. Now it may not be amiss to remark, that our Constitution was intended for popular use, and although very ac curately expressed, the language is free and in accord ance with popular usage. Every one knoT3 that in popular language, whethor occur and happen are strictly synonymous, they are used without much discrimination. Even in penning this article, the writer has found himcelf inclined to use the word happen in the very places that occur now occupies, and indeed it might probably have been very cor rect, for a becoming recollection of the instability of every thing human renders the language of uncer tainty very proper in reference to all fuinre events ; supposing happen does imply uncertainty. But it is remarkable that in relation to suih events there is no one verb in our language expressing rn ire certain ty than the word happen. It has divers significations some of them imply ing certainty, and soma of them uncertainty. Thus Bailey defines happen: "To snatch up a thing, to fall out." Walker defines it : " Fall out by chance, to co-ne to pass, to light on by accident." W"ebster defines it: To come by chance, to come without one's previous expectation, to fall out." For example : There shall no evil happen to the just." Prov. 12 chap., 21 verso. 2d. To coma, to befall. For example : "They talked together of all these things which had happened." Luke, 21 chap., U verse. 3d. " To light, to fall, to corns unexpected." In Crabbe's synonimes it U said in examining the lameness of happen and chance, " to happen, that is to fall out by hap, is to chance as the genus is to the species. Whttever chances happens, but not vice versa. Happen respects all events without includino any collateral idea. Chance comprehends likewise the idea of the cause and order of events ; whatever comes to pass happens, whether regularly in the, course 01 tnings, or particularly an l out of order." Mr. Ciabbe therefore makes happen a most compre hensive word. Occur " is defined by Walker io be prasented to the memory or attention, to appear here and there, to clash, to strike against, io meet." ttaUey defines it: " To meet, lb c"me in the way of offer or present itself." VVebster defines it, primarily : "To meet, to strike against, to clash, (but this, he says, is obsolete.) 2. "To meet, to come la hand, to-be presented to the mind, imagination or memory." 3. "To appear, to meet the eye, to be found here and there." 4. "To oppose, to obviate." Crabbe hd9 not the word at all. Occurrence, Walker says, " is incident, accident, event, occasioual presentation." Bailey gays. " a casual advajiture, rencontre or conjunction of affairs also news." VVebster says, 1 (literally) : A cominr r Penmg-, .hence any incident or accidental event, that which happens without beinir designed or n.eH any single event." 2. " Onisional presentation." w O i orati'je 8 definition is, "event, incident, adven- lure. " The i phrase ,", place" Webster defines, "to come to pass. ' Betide" to come to pass, to happen." ill.)" l happen 10 0ccur (generally denoting It may therefore be seen that no stress can ba laid on the supposition that the framers of the Constitu tion selected the word happen as expressing any peculiar uncertaiaty, but en the contrary it Seems aMeypoC8.Uib,en01 h3Ve made beUer 8elecli" an possible cases. But, say they, happen can never be applied to an cTenrTtVvrV rtain in ,he iKiEi- currence. Yet.even if this be so, when two events are Mother u'nTr ' ""Certain a. t" K the other uncertain, the.r concurrence is also a matter of uncertainty ; and it may well be said of the certain evenff oertamin ttself and certain as to time, Si? lure notwithstanding an attempt was made to elect a ; Constitution intended to provide no moae 01 n.m.g Senator it was not done because no one could have a vacancy thus occurring or happening? Is it to maioriiv of both Houses, and the Legislature there- ; be supposed that the representatives in the Con- ..ot Sinntn at tha Mm 'time-rWrth- ,' may or may an as to the time event uncenai" '- - r im occurrence, or even li u wa ouijr to the time of its occurrence, that it happens even in the most uncertain signification of the word. But the occurrence of this vacancy at a particular time is not certain, because, although it cannot be . I K.-nnl neruin time, it mar occur before I I 1 t J .U r.alrrnntian , that by death or resigna on , IIUSUll'IICU - ' . . . : -' . t : . nn,J 1 nd if it occurs before, it cannot occur at that lime, and therefore its occurrence at that time is contingent, ana n it aoes occur at that tim it may well be said to have nap- per ned even in the uncertain sense 01 mat woru. And arain, in speakin?; ot this suhject me iramers 01 the Constitution could not speak in tne.inaicauve, oui must speak necessarily in the subjunctive mood. They were not merely asserting the independent pro position that a Senator's term would expire at a par ticular time, but were speaking of that expiration in connexion with another event, to-wit: the Session of the State Legislature. Now allow it be as certain as vou n!ase that the term will expire at a given time, whether me Liegisidiuic m tiny . wntilii ever sit was tar trom oeing a matter 01 cer- ' i,inr. hnt a owinnr that to be certain, it was still a mi of uncertainty whether its session and matter ot uncertainly wneiuer us scsaiun unv. 'exniration of the Senatorial term would concur, ana ' therefore their -fwn-concurrence was a possible and leven a probable event, for which far-sighted wisdom ! should have made provision. Why shou'd we suppose that the framers of the ; intended to mXe an arrangement Dy which mai State should be but partially n presented at any time in the Senate, or that the representatives from any other State would do so ! On the contrary, is it not certain that the representatives from each State were anxious to secure for the State they re presented as full a share in the Government aspos- Slola f Any one will) win ei.iiume me piuiicoumga of that Convention will see with what solicitude each State endeavored to secure for herself as much politi cal power as possible, and that even then the idea of ReiMinr.ai nower nau entered tne nuniic imnu. cor j example, on the several motions made to increase the representation of particular States those in the same j region of country voted together, while those in the 'opposite voted against them. And besicies. they had already maJe the Senate one of the most important j constituents of the Government, and declared that it 1 should be composed of two Senators from each State, But to suppose that they used the word happen pur- posely for lie reason assigned by those against whom we are arguing, is to suppose mat tney intenaeu to exclude a State (it might be their own) from a part of its representation in the Senate, under circumstances that might occur or happen. But it is said that it would have been indecent to suppose that the Legislature at some time before a foreseen vacnncy would occur, would omit to provide for it, and therefore the framers of the Constitution did not provide for it. This is in the first place a pelitio principli, and assumes that it is the clear duty of ihe Legislature to anticipate a known va cancy and to fill it, which it will be seen present ly is a matter of doubt. Besides that, itleaves out of the question the possibility and even the proba bili'13 that it might not be able todoo. For it is certain there are many ways in which its practica bility might be defeated, one of which has oc curred, in the instance before us. But allowing the argument to be plausible if used merely for insisting upon a casus omissus, it will not do in support 01 me proposhion that the framers of the Constitution pur posely adopted language by using the word happen, to make a case in which repiesentation in the Senate would be for a time prevented. For it assumes that ihey did anticipate the very thing which the argument supposes it would have been indecent in them to anticipate. Ami, even if in truth, it i9 a casus umis s: and they had not the case spoken of in view at all, then the assumption that they meant to exclude it, is in the face of the fact, and the reason for giving the strained interpretation contended for falls to the ground. But it is not a easus'omissus, for it is clear that ihe language used by the framers of the Constitution, taken in its popular sense, docs cover the case under consideration, and those who say it does not have to wrest the language from its popular signification and draw in extraneous considerations to prevent its covering the case, and thereby make a casus omissus. And indeed it is conceded by those against whom we are arguing, that tha language does cover the case, unless the expressions are to be understood as used to provide fir it. not by supplying a remedy for the mischief, bat by purposely excluding the remedy. And is it not indecent to suppose that our wise fore fathers, who framed our excellent constitution, a work that challenges the admiration of the world, were so short-sighted as not to foresee the very occurrence which has taken place in North Carolina, or at least to have considered it possible, or that, foreseeing, they would not have provided for ill WTe have already endeavored to show that they could not purposely have omitted it, and foreseeing it, what possible rea son could there have been for not providing for it oth er than that in their estimition it had been already clone? And indeed if they did foresee itand were so determined as he argument on the other side sup poses ta exclude the action of the Executive in such Ki.iaaa, n:iy noi ai once n.ive expressed mat uesign and not leave it to the most vague inference? Next.it is said that the sovereignty of the States was intended to be represented in the Senate of the Uni ted States. This is true ; but we deny that the sov ereignty of the States resides in the Legislatures of the Stales. It resides in tha people ot the States, and is represented in the Executive and Judicitl branches as well as in the Legislative. Tne repre sentation of this sovereignty is apportioned among these branches, but the Lr?gisl.uive department can exercise no portion of this representation when it is not in session, and therefore, during its recess, so far as immediate action is concerned, the Executive be ing always in active existence, exercises for the time being all the active sovereignty of the Stats which is not exercised by the Judiciary. Tne Executive of the State 19 as much the representative of the people ot the State in his own sphere as the Legislature. It would have been no more a violation of The rights of the States if the appointment of Senator had been con ferred exclusively on the Executives of the several States than if conferred exclusively upon the Legis latures. It is supposing a very strange jealousy"on the part of the States of their own Executives, that they would rather go unrepresented, or only partially represented in the Senate of the United States, than trust those Executives with the power of appointing Senators; and that, too, in tha face of the fact that there are admitted c ises in which the Execntives are required to appoint them. We admit that the Legis latures are the more pouilar bodies, and that a very proper preference is expressed for them in the Con stitution in relation to the3e appointments, but we deny that it was ever intended 'to veet in them the power of excluding their States trom representation in the Senate. It was not supposed, we admit, that if a vacancy existed while a Legislature was in ses sion it would fail to fill it, and therefore the Consti tution provides in so many words that a vacancy oc curring when the Legislature is not in session, the Executive may fill it till the next se3sioa of the Leg lature. It provides for no more and it provides for no less, and there is no more reason for refusing to the provision application to a case that comes within its words, than for extending those words by implication to cases that do not. The strid and States rights doc trine of construing the Constitution of the United States in, to adhere to the letter, and if there are any cases in which a slight dewarture is deemed necessa ry or advisable, to make those cases as few as pos sible. There is nothing in the history of this branch of the Constitution as gathered from the Journals of the Convention that formed it, from whence we can infer that there was this great jealousy of the Executives of the States, nor that there is any peculiar magic in its language as it now stands to exempt it Irom the ordinary rules of construction. The first proposal in relation to the election of Senators brought before that body will be found in a draft of a federal government brought forward by Charles Pinckney, vide Journal of Convention, page 72: "Article 4th, The Senate shall be elected and chosen by the House of Dele gates, (meaning the House of Representatives,) &c." Next it appears in Mr. Randolph's resolutions, Jour nal ot Convention, page 86 : " The members of the second branch of the National Legislature ourht to be elected by those of the first out of, &c," which passed in the negative, r It .was next submitted by Mr. W ilson, page 106; That the second branch' of the national legislature be elected by,the:peop!e in Districts to be formed for ihnt ouroos " W h. ! moln to postpone the Convention jefased. On U iniA nave a resolution was submitted by Mr. Dick- erson, "That the members of the second branch of the national legislature ought to be chosen by the individual legislatures," which passed unanimously. The aame was again passed, Juae 25th, 1787.' Tbe committee of detail,' page 207, provided in their re port according to the foregoing resolution. In the draught reported August 6th, 1787, page 217. it was provided "The Senate of the United States shall be chosen by th Legislatures of the several States. Each Legislature shall choose two members." Vacancies may be supplied by the Executive until the next meeting of the Legislature." Page 237 it was pro posed to alter this clause so as to read as follows: " Vacancies happening by refusals to accept, resigna tion, or otherwise, may.be supplied by the Legislature of the State in the representation of which such va cancies shall happen, or by the Executive thereof until the next meeting of the Legislature," which passed. In the final draught of the Constitution, page 353 it reads : " And if vacancies happen by res ignation or otherwise during the recess of the Leg islature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature." At page 378 we find it was finally amended bv adding " which shall then fill such va cancies," implying thereby some doubt whether the right and obligation of the Legislatures to do so would have been clear withort this amendment. From all this it is very plain that the Conventio was anxious to provide in all cases for representation and in this final clause imposed it imperatively as duty upon the Legislature coining into session after vacancy, immediately to fill it. Shall then, that is at its next meeting, fill such vacancj. What vacan cy ? That which had occurred during its recess They are not enjoined to fill it before it happens whether foreseen or not, but tney are cnjoinea to a it at the next meeting after it happens. It is urged, however, that if the Legislature had the power of foreseeing the vacancy, and therefore the power of filling it, that the right of the Executive isoone. that the power of the Legislature is general and that of the Executive is special. It is admitted that the power of the Executive is limited to a singl case, but that power is co-extensive with that case and we can see no other limitation upon it; and in deed, as may and shall are synonomous in such cases the Executive isbound toexercise the poweras soon as the case occurs. As both the general and the special power are derived from the same source, it is not seen whv that source is not as effectual to communicate power in the one case as in the ether. In this mat ler both the State Legislatures and the State Execu tives are trustees, and if one does not fulfill the trust which the other may and does, it is not seen how any clashing of power takes place. The two questions, therefore, come back upon us first, is the Legislature bound to exercise the powe of appointment, foreseeing a vacancy before it occurs and secondly, will its so foreseeing H, whether it makes the appointment or not, deprive the Executive of the right and duty of so doing in the face of the very words of the Constitution; Upon the first question, what imposes upon the Legislature the duly of foreseeing a vacancy and pro viding for it? Take this supposed obligation in an unqualified extent, and it would have required of the first Legislature that met in North Carolina after the adoption of the federal constitution to foresee all the regular vacancies that would occur or happen in the Senatorial representation of the Slate for at least that generation, if not lor all time. And what qualifies this obligation, or limits it to the next vacancy that wi occur? Or supposing it to be limited to the next vacancy, what prevents it from requiring the very Legislature that makes an appointment to foresee its regular termination and provide for it? And why is it not as much the duty of any Legislature preceding ihe foreseen vacancy as the one immediately preceding it to provide for it? See what a clashing of power is here brought about ; and can it be that the framers of the Constitution intended purposely to place this element of political corruption, this subject for parly scramble and management, in the very heart of (he Constitution ? But it is said practice has legalized the appoint ment of Senators by that Legislature which immadi ately preceed3 the happening of a regular expiration of a Senatorial term. Practice can never put a feat' ure into the Constitution which was not there before The most it can do is, when the language of the Con slitution is doubtful, to furnish evidence of its true interpretation, but it can never be of use when the language of the Constitution is plain. The same body wiich makes one practice can make another; and thus if we were governed by practice we should be no better off than tho3 nations, who, hiving no writ ten Constitution, only know what their Constitution is from practice and precedent. The truth is, the filling of a vacancy in ths Senate ot the United States by the Legislature of a Slate, before it happens, however clearly foreseen, could never have been tolerated, r.nd would have long ago been resisted as an act of high-handed usurpation, had it not been for the first section of the 4th article oi me oonstituiion, wnicn is in tnese words : " i ne times, places and manner of the election of Senators and Representatives shall he prescribed in each State by the Legislature; but Congress may at any time, by law, make or altar such regulations, except as to the places ol choosing Senators. It is Irom this clause of the Constitution that the Legislatures of the Slates derive their whole power, real or supposed, of antici pating vacancies. Whether it is sufficient to author ize the Legislatures to anticipate vacancies and fill them, and thereby take from the Executives the pow er of filling thern, under the very circumstances an der which the Constitution has conferred ituponthem, admits ot some question; but it has lonr been ac quiesced in, that the Legislatures may pass general laws declaring that a Senalot should be elected by the Legislature next preceding tha expiration of a Senatorial term, or at such other times as they raay choose to designate, subject, however, to the overiul- ing legislation of Congress. And that, as the Legis latures may pass a general law, therefore, when they elect a Senator at a particular time it is pro hac vice, an exercise of this general power. But an ineffectual attempt to do so can no more be said to be an exercise of that power pro hac vice than would the introduc lion of a general bill to fix ihe time of decline Sen ators, which did not pias, be a full exercise of tho power of fixing such time. Upon the second question, it is admitted that it the Legislature had made an appointment of a Sen ator, or by a general law had fixed a lime of appoint ment preceding the regular expiration of the Senato rial term, it might plausibly have been contended that upon the occurrence of such vacancy, the Exec utive power to fill it would not have existed. The former case, we think, would present a question of no nine uuncuuy ; out mat in tne latter, tne Executive power had not been superseded. But, however this may be, the Legislature in the case before us, has made neither a full nor partial ex ercise of its power. It did attempt to elect a Senator. but it did not do it; and therefore did not exert its power-specially. And it has not exerted it crenerallv. For the only legislation on this subject is to be found in the Revised Statutes, chap. 72, see. 1st, and is in these words : " Be it enacted that the Legislature of the State shall, whenever a Senator or Senators in the Congress of the United Stales, is or are to be chosen. at such time during their session, as they shall ap point, elect by joint vote of both Houses of the Gener al Assembly, the vote being viva voce, such Senator or Senators as may be necessary, under the inspection of two members from each House ; and it shall be ne cessary to have a majority of both Houses to elect any person foi that purpose." Now, by this act the manner ot choosing Senators by the Legislature ia distinctly pointed out; but neither the lime nor the? place is. The place is, by implication, for as it is to be done by the Legislature, wherever the Legisla ture is must be the place of doing it. But what is said about the time? " Whenever a Senator or Senators in the Congress of the United States, is or are to be chosen, &c." When is that ? Does this act inform us ? Nf! Where, then; are wo to find this when? It is nowhere given us. In saying this we take it for granted that Congress has not legislated upon the subject. We are not aware that it has. and we have nowhere seen it intimated that it has. If it has, the Constitution makes its legislation upon this Subject paramount, exceptas to the vlace where Senators shall be elected. jEven if our Legislature then had expressly provided by la w, that the election of Senators should take place at the session immediately preceding -the expiration oi a regular term. t;ongress might overrule it by a law, saying that it should not be done until the expira tion of the term. And can any one doubt that in that case if the Legislature .were, not in session at thai time, that is at the expiration of the term,.that the Executive of the State could appoint till the be ginning of the next session of the Legislature 1 . Ol course, those wha give tha restricted meanings c on- tended for to the words 'happen and vacancy would, f but no otters could. II it be admitted that either Congress r the Legislature may fix the times at which Senators must be appointed, so as to prevent the Executives from filling vacancies, caused by the regularexpiralion of terms, it does not follow, when neither of them chooses ta exercise that power, that a State shall continue without a full Senatorial repre sentation, should a term expire when the Legislature is not in session. I he Governors cannot anticipate a vacancy of any sort, because the single power con terred upon them is to fill vacancies when they have happened during the recess of the Legislatures the Legislatures cannot on account of any inherent pow er in themselves ; but if at all, because the Constitu tion has conferred opon them the power of fixing the times at which they shall elect, and because it has been acquiesced in, as we have already said, that they should anticipate known vacancies and fill them. Hw this would be if the question should be raised, and the right disputed, is not free from doubt. But we think it certain that when a Legislature has made no provision for filling a vacancy caused by the expira tion of a term during the recess of the Legislature, the Executive may and ought to fill it. These are our views of this case upon argument ; but on whichever side of the question the strength of the argument may be, it is said that authority and precedent are against us. If authority and precedent be opposed to sound reason, they ought to be over ruled. But it is believed that neither authority nor precedent is against us ; but that this impression hav ing been taken up, arguments have been invented to support the supposed precedents. The first precedent rolled on is that of Mr. Lan man, a Senator from Connecticut, and we take the statement of the case and the decision of the Senate from a note made, as we understand, by Judge Story himself in his commentaries on the Constitution, vol. 2d, page 201 : " In the case of Mr. Lanman, a Senator from Connecticut, a question occurred wheth er a Stale Executive could make an appointment in the recess of the State Legislature in anticipation of the expiration of the term ot office of an existing Senator. It was decided by the Senate that he could not make such appointment. The facts were that Mr. Lanman's term of service as Senator expired on the 3d of March, 1825. The President had convoked the Senate on the 4th of March. Tho Governor of Connecticut, in the recess of the Legislature (whose session would be in May,) on the 9th of the preced ing February -appointed Mr. Lanman Senator, to sit in the Senate after the third of March. The Senate by a vote of 23 to 18, decided that the appointment could not legally be made until after the vacancy had actually occurred." Here then 18 out of 41 Senators held that the Governor had, like the Legislature, the right of anticipating. In this the minority was over ruled by a majority of only five. But it seems that neither the majority nor the minority in those early days thought of holding or at least putting their de cision upon the grounds, that " vacancy " and "hap pen " had such peculiar meanings that the Governor could not appoint at all; but distinctly upon the ground that he could appoint if he had waited 'till the vacancy eccurred. And Judge Story's own remarks upon the fea ture of the Constitution under consideration, are worthy of notice. Story's commentaries on the Constitution, chap. 10, sec. 725, page 203, vol.2, he says : "As vacancies might occur in the Senate dur ingthe recess of the State Legislature, it became in dispensable to provide for that exigency. According ly, the same clause proceeds to declare : " And if va cancies, &c." It does not appear that any strong ob jection was urged in the Convention against this pro position; although it was not adopted without some opposition. There seem to have been three courses presented to the consideration of the Convention; either to leave the vacancies unfilled uatil the.meeting of the State Legislature, or to allow the Legislature to provide at their pleasure, prospectively for the oc currence, or to confide a temporary appointment to some select Slate functionary or body. Tbe latter was deemed the most satisfactory and convenient course. Confidence might justly be reposed in the State Executive as representing at once the interests and wishes of the Stale, and enjoying all the proper measures of knowledge ana responsibility to insure a judicious appointment." It will be observed in the very outset of the paragraph that Judge Storv uses occur as conveying the same idea as the word happen in the Constitution. It never occurred to him to crit icise the words " happen " and " vacancy," ncr that there was in the Convention a prudent distrust of the Executive of the Slates, nor that Lanman s case ought to have been put upon any other ground than that the Governor had appointed before the happening of the vacancy. And what is still more to the point, Judge Story evidently understands the Convention to have adop ted the third alternative of confiding the temporary appointment to some select Stale functionary or body. to-wit: the bxeculive, in opposition to leaving the vacancies unfilled until the meeting of the Slate Leg islatures, and to allowing them to provide at their pleasure prospectively for their occurrence. And yet it is now contended, in the face of the language of the Constitution and the understanding of its com mentators almost cotemporaneous with its formation, that the course adopted was to allow the Legislatures to provide at their pleasure prospectively for the oc currence ot these vacancies and mat the executives , should be excluded. Both Lanman's case, therefore, and the above paragraph from Judge Story, are au thorities in our favor. The next authority cited is the case of Mr. Sevier, from Arkansas. We have not at hand any statement of that case, but take it from the Speech of Mr. Brooke in the Senate on the discussion of t le late case of Dixon and Moriweather. According to that state ment, Mr. Sevier was received, and of course the case cannot be cited as an authority for the exclusion of anybody. But Mr. Brooke informs us that " although the ex piration of his ( Mr. Sevier's) term was fixed by law, as in that of Lanman, yet from the peculiar circum stances of the case the Legislature could not have provided for the vacancy, and therefore the appoint ment of the Executive was sustained. " What those peculiar circumstances were 13 not stated, nor do we remember what they were. At any rate the case is not put upon the ground that there was no session of the Legislature. And if it is to be taken that the Legislature did sit before the occurrence of the regular vacancy, and some circumstance prevented their making an election, this is a direct authority for our position.' tor there was in our case a moral im possibility for the majority of both houses to unite upon any one man. At any rate, the case is no au thority against us. the remaining case is the (ate one of Dixon and Meriweaiher. In December, 1851, Mr. Clay, the great American statesman, resigned his seat in the Senate to the Legislature of Kentucky, then in ses sion, to take effect in September following, and tha Legislature proceeded forthwith to fill the vacancy that would then occur, by the election of Mr. Dixon. I he Legislature soon after adjourned. In June fol- owing Mr. Clay died, leaving his office vacant by death, and the Governor proceeded to fill that vacancy by tne appointment nt Mr. Menweather. Mr. Men- weather took his seat and held it until the Adjourn ment of Congress ; and, on the next meeting of Con gress on the first Monday of December last, the ques tions came up whether either ot these gentlemen. and, if either of them, which was entitled to the seat ; and the Senate declared that Mr. Dixon was. Now we do not perceive that this decision is either for or against the argument we have submitted. The ques tion in our case is not involved. A vacancy was made certain at a particular time while the Legisla ture was in session; and the Legislature, as accord - ng to our argument it may have had a right to do. proceeded to fill it. While the Legislature was not n session a further vacancy occurred, and the Gov ernor proceeded to fill that. Having thus considered this important question. both upon reason and authority, we would add that it is a maxim in all construction that it should be made ut res magis valeat quam pereal ; and also that the general purpose of the maker of any instrument should be kept in view. . Now if the construction contended for on the other aide is admitted, the gen eral purpose ot the trainers ot the Uonstttunon that every Slate shall have its part in the government, will be partially defeated that important instrument be to some extent rendered invalid, and a State for a time shorn of some of her rights, without attaining, as tar as is seen, any possible good. But the con struction for which we contend works no mischief, nterferes with nobody's just authority, carries out the general purpose of the framers of the Constitution, and secures Ho each State an inesti mable right ren- .u. ; j uoh urn . uiauuiueni more emcienir ana aaua one more trophy to the foresight and wisdom of its im mortal founders. " : . THE STANDARD. EALEIGH, WEDNESDAY, JAN. 19, 1853. " LAST DAYS OF THE SESSION." The Raleigh Register is still engaged in tho desperate work of endeavoring to produce the im pression that the Democrats of the House of Com mons are responsible for the unfortunate scenes which took place in that body on the 22d and 23d December. Why, the bare idea of such a view of the matter is. preposterous. Every body here, of both parties, knows who the revolutionary leaders were, and that they are Whigs. The Whig Speak er himself bore testimony against Messrs. Cherry, Jaggf and others ; and Mr. Cherry, in turn, bore testimony against the Speaker. The Speaker de clared that he violated the rules of order and prevented an adjournment, because, though a par ty in the movement with Mr. Cherry and others, he perceived a disposition on the part of the Demo crats to make concessions to do what he consid ered justice to their opponents ; and yet in the face of this in direct contradiction of the admission of the Whig Speaker himself, the Raleigh Register declares that " the Iocc.focos were appealed to, again and again, to give an intimation even that they would do justice; but no, they refused to give any such intimation, ready to let the Legislature ex ire, and leave no Senate at all, rather than do justice rather than hazard the failure of their iniquitous gerrymander." The Editor of that paper must have tasked his talent for misrepresentation when he penned that paragraph. It is totally and en tirely untrue, and every body here knows it to be so. In the first place, this " iniquitous gerryman der," as it is called, was the work of a Whig and a Democrat appointed on Committee by the Whig Speaker himself it was a fair and just bill, for it gave the Democrats 22 District', the Whigs 22, and left 6 in doubt ; and it would have passed, if the vote could have been had upon it, in a Whig ffouse and hy the aid of Whig votes. But the revolutionary leaders determined that it should not pass they preferred a dissolution of the govern ment to the losss of what they considered a party advantage, and so they spoke on until they were overruled and silenced by their own Speaker ; and their conduct on the occasion was of such a char acter that tho Speaker was compelled by a sense of duty to rebuke them from the Chair, which he afterwards resiged, and resigned for the reason that, in interposing to prevent the final stroke of revolution and disorder, he had taken action against the Whig party, which had placed him in the Chair. The Register says that on Thursday, the 23d after the Senatorial bill had passed its second read ing, and when an effort was made by the revolu tionary leaders to suspend the rules and force it through its third reading before twelve o'clock, the hour fixed for adjournment the Democrats op posed the suspension of the rules, and that " Messrs, Ilill, Strange, and others ot the Jocofoco leaders. talked against time, so as to consume all the mo ments left before twelve o'clock." The impression is here sousrht to be created that these gentlemen were parties to the revolutionary movement. Xoth ing could be more unfounded or unjust, as the facts will show. On Wednesday the 22d, after the Senatorial bil had been discussed for some time, and when it was apparent that Mr. Reid's bill would pass if a vote could be had upon it, on motion of Mr. Puryear, the whole matter was referred to a select Commit tee of two, with directions to rejort that afternoon This Committee, as we have stated, was appointed by the Speaker, and was composed of Messrs. Ave ry and Philips, a Democrat and a Whiff. The Committee reported in the afternoon, and their re port was made the special order for seven o'clock, The night session came, and it was announced by Messrs. Cherry, Caldwell, Miller, and others, at the outset, that the report of this Committee should not be adopted, and that unless the Democrats would give them a bill, and give it to them then, which would suit them as party men, they would consume the time of the House by speaking and by motions to adjourn, until twelve o'clock, when, by force of the joint Resolution, the Iwo Houses would stand adjourned. And this course was pur sued by these members Mr. Cherry acting as he declared, for the bulk of tho Whiff party on the floor until half-past ten o'clock, when Mr. Dobbin appealed to Mr. Cherry and those acting with him to consent to rescind the joint Resolution to adjourn, and then he had no doubt some plan could be pro posed which both parties could agree upon ; and he entreated these gentlemen not to endanger the very existence of the government for the sake of carrying out a party scheme, assuring them at tho same time that there was every disposition in his party friends to meet them in a spirit of com- mi a m m r --v t i 1 1 promise, ltie appeal ot Mr. JJoDDin produced no effect upon these reckless disorganizers. At an early period of the night session a message was received from the Senate proposing to rescind the joint Resolution to adjourn at twelve o'clock ; but the Speaker did not see fit to submit this message to the House, though by doing so he could at once have put an end to the disgraceful scene which was being enacted by - some of his partv friends. When half "past eleven arrived, nothing having been effected, Col. Puryear as had been arranged, no doubt, from the beginning by the Speaker and himself introduced a Resolution to send a mes sage to the Senate to rescind the Resolution to ad journ at twelve o'clock that night, provided tho Senate would agree to adjourn at twelve o'clock next day. When the vote had been taken upon Mr. Puryear's Resolution, and a message had been received from the . Senate concurring in it, Mr. Strange, of New Hanover, moved to send a mes sage to tho Senate to rescind the Resolution to ad- jounithe; next day at twelve o'clock ; and he maj6 this' motion Ifof;' tho obvious purpose of preventing the re-enactment. on.:Thnrsday of the scenes of Wednesday night bat before the vote was taKeo on his motion the House adjourned. ' On Thurg. day morning MC Strange's. motion came tip fi in order, as the unfinished business ; but at tig request of Mr. Martin, of Franklin, he withdrew it to make way for a Resolution introduced by to the effect that tho Senatorial bill should be taken up and considered until half past eleven o'clock, and thnt, when this time had elapsed, Mr. Strang motion should bo .taken up and acted upon. p. fore half past eleven arrived amendments had ben made, to the bill of a character which satisfied tha Whig leaders, and the bill, as amended, passed fa second reading ; and the Speaker then decided that, by force of Mr. Martin's Resolution, the rules were suspended and the bill could be put upon its third reading. From this decision Mr. Reid, of Dupli appealed ; and MK nill, of Caswell, and Mr. Strang of New Hanover, addressed the House against the decision. The Register says they spoke to con sume time, so that twelve o'clock might arrive and the Legislature be adjourned; but the facts area gainst the Register, for by Mr. Martin's Resolution it was provided that, as soon as half past eleven arrived, Mr. Strange's motion to send a message to the Senate to rescind the joint Resolution to ad journ at twelve o'clock would come up, and there fore Mr. Hill, Mr. Strange, - and others, could not have consumed the time up to twelve oVZoci-. These gentlemen were speaking in good faith against the decision of the Speaker a decision that would not have been sustained by the House, had a vote been taken upon it. The Register knows very well that during this entire movement every Democratic member of the House, and many of the Whig members, were striving to get to a vote to rescind tha Resolution to adjourn, while Mr. Cherry and others, during the whole of Wednesday night, oc cupied the position that no vote should be taken upon the report of the Select Committee, and that, unless the Democrats would propose a plan hy which the Districts should be laid off to suit them, they would consume the time till twelve o'clock, adjourn the two Houses, and thus dissolve the gov ernment. And on Thursday morning these revo lutionary leaders went still further, and assumed the extraordinary position that unless the rules were 'suspended and the bill was permitted to pass its third reading, they would discuss Mr. Strange's motion to send a message to the Senate proposing to rescind, until twelve o'clock, and thus break up the government ! The Register knows these facts to be as we have stated them ; but that paper will never admit either these facts or any otlicr facts connected with this unprecedented movement on the part of its party friends. We have shown in this and in articles which have preceded this, the following facts : 1st. That the bill, as reported by Messrs. Avery and Philips, assigned to the Democrats 22 Dis tricts, to the Whigs 22, and left 6 in doubt 2d. That the Whig leaders vehemently opposed this bill, and openly declared, on Wednesday night the 2 2d, that before it should pass they would revolutionize the government. 3d. That the Speaker, who was a party to the revolutionary movement up to a certain time, chan ged his course, but, in order to check and hold down his party friends, he was compelled to violate the rules of order of the House. 4th. That the Speaker rebuked Whig leaders for their violent and disorganizing conduct; and that Mr. Cherry retorted, and admitted that, while he was responsible for his share of the revolution ary movement, the Speaker was equally responsi ble and equally censurable with himself. 5th. That on Thursday the 23d, the Whig lea ders having got the bill into a shape to suit them selves, insisted on passsing it through its three readings in violation .'of the rules of order ; and declared that, if they were not permitted to do so, they would speak against the Resolution proposing to the Senate to rescind, until twelve o'clock, and thereby dissolve the government. 6th. That fifteen Whig members, at ten minuict to twelve o'clock on Thursday, voted against con curring in the Senate proposition to postpone the period for adjourning thereby evincing, to the last moment, a determination to overturn the gov ernment. 7 th. That the Whigs had a decided majority in the House that the Democrats were, therefore, powerless and that the Whig leaders were and are, as a matter of course, responsible, from first to last, for the disgraceful and disorganizing move ments of the 22d and 23d December. We repeat, we have established these facts be yond all cavil or question. There they stand, and there we intend they shall stand. Tbe Kegister may bluster and misrepresent, but the course of that print is well understood it amounts to noth- . ... .1 H A- Vl HT 1 A ltd ing. Intelligent gentieineu nime uj pretended account of this matter, while the unin formed are puzzled to reconcile its conflicting state ments, and at last come to the conclusion that the Editor does not know himself what he is writing about, or what he wishes to establish. We have written more than we intended wnen i . .i v -a z i riant we commenced; out tne suDject iunur- . ... , i ' - aT nclf1- one, ana we snail resume ana continue eration of it in future numbers. CITY ELECTION. At an election held in thisCity on Monday William D. Haywood, Esq., was re-elected Inten dent without opposition, The following centlemen were elected Commis sioners : Western Ward, S, W. Whiting, and A. M. Gorman. - Middle Ward, Seaton Gales, T. R Fentress, and C. B. Root. Eastern Ward, Eldridgo Smith and M. B. Royster. Messrs. Christophers and Taylor were re-electea Constables for Districts No. I and 2. . J& We lay before our readers to-day the ar gument we promised in our last, from the pen of the rHon- 'Robert Strange, of Cumberland, vpon the power or right of the Governor to appoint a Senator in Mr. Manguni's place, after the 4th of March next. This argument is ono of the strong est which has emanated from Judge Strange's pen and will be read in all quarters witbf attention interest., ;. '? I t J 0-