SENATE ELECTION CASES.

I.

CASES CONCERNING THE POWER OF EXECUTIVES OF STATES TO FILL VACANCIES.

[Third Congress-First session.]

KENSEY JOHNS,
of Delaware.

George Read, a Senator from Delaware, resigned his seat in December, 1793, during the recess of the legislature of said State. The legislature met in January and adjourned in February, 1794. On the 19th of March, Kensey Johns was appointed by the governor of said State to fill the vacancy. It was determined that Mr. Johns was not entitled to his seat, a session of the legislature having intervened between the resignation of Mr. Read and the appointment of Mr. Johns.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Annals of Congress, 3d Cong., 1793-'95, within pages 73–78.

MONDAY, March 24, 1794. Kensey Johns appeared and produced his credentials of an appointment by the governor of the State of Delaware as a Senator of the United States; which were read. Whereupon it was moved that they be referred to the consideration of the Committee of Elections before the said Kensey Johns should be permitted to qualify, who are directed to report thereon; and it passed in the affirmative-yeas 13, nays 12; as follows: YEAS-Messrs. Bradley, Brown, Burr, Edwards, Gunn, Hawkins, Jackson, Langdon, Livermore, Martin, Monroe, Robinson, and Taylor.

NAYS-Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Izard, Mitchell, Morris, Potts, Rutherfurd, Strong, and Vining.

WEDNESDAY, March 26, 1794.

Mr. Bradley reported from the Committee on Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware a Senator of the United States in the place of George Read, resigned. Ordered, That the report lie for consideration.

THURSDAY, March 27, 1794.

The Senate proceeded to the consideration of the report of the Committee of Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States.

On motion that the report be recommitted, it passed in the negative; and,
After progress, it was

Ordered, That the further consideration of this report be postponed until to-morrow.

FRIDAY, March 28, 1794.

The Senate resumed the consideration of the report of the Committee of Elections, to whom were referred the credentials of Kensey Johns, appointed by the executive of the State of Delaware to be a Senator of the United States; which report is as follows:

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Bradley, Ellsworth, Mitchell, Rutherford, Brown, Livermore, and Taylor.]

The Committee of Elections, to whom were referred the credentials of an appointment by the governor of the State of Delaware of Kensey Johns as a Senator of the United States, having had the same under consideration, report

That George Read, a Senator for the State of Delaware, resigned his seat upon the 18th day of December, 1793, and during the recess of the legislature of said State.

That the legislature of the said State met in January and adjourned in February, 1794.

That upon the 19th day of March, and subsequent to the adjournment of the said legislature, Kensey Johns was appointed by the governor of said State to fill the vacancy occasioned by the resignation aforesaid.

Whereupon the committee submit the following resolution:

Resolved, That Kensey Johns, appointed by the governor of the State of Delaware as a Senator of the United States for said State, is not entitled to a seat in the Senate of the United States, a session of the legislature of the said State having intervened between the resignation of the said George Read and the appointment of the said Kensey Johns.

On the question to agree to this report, it passed in the affirmative-yeas 20, nays 7; as follows:

YEAS-Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, Frelinghuysen, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Mitchell, Monroe, Robinson, and Taylor.

NAYS-Messrs. Foster, Izard, Morris, Potts, Rutherfurd, Strong, and Vining.

Resolved, That an attested copy of the resolution of the Senate on the appointment of Kensey Johns to be a Senator of the United States be transmitted by the President of the Senate to the executive of the State of Delaware.

[Special session of Senate, March, 1801.]

URIAH TRACY,

Senator from Connecticut from December 6, 1796, till his death, July 19, 1807.

Mr. Tracy's first term expired March 3, 1801. On March 4, at a special session of the Senate, he produced credentials of appointment by the governor of Connecticut to fill the vacancy. It appears from the credentials, which are dated February 20, 1801, that the legislature of the State was not then in session, and that he was appointed "from the 3d of March next until the next meeting of the legislature of said State." Exception being taken to his credentials he was admitted by a vote of 13 yeas to 10 nays. Under these credentials he occupied his seat during the special session of the Senate, March 4 and 5. In May following he was elected by the legislature, and on December 6, the second day of the next session of Congress, he produced his credentials of election and the oath was administered.

The brief history of the case here given, taken from the Annals of Congress, 6th Cong., 1799-1801, page 763, contains all that there is relating to it, neither the debate referred to nor the grounds of the decision being given.

WEDNESDAY, March 4, 1801.

Exception being taken to the credentials of the Hon. Mr. Tracy, a Senator from the State of Connecticut, a debate ensued; and,

On motion that he be admitted to take the oath required by the Constitution, it passed in the affirmative-yeas 13, nays 10; as follows:

YEAS-Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Livermore, J. Mason, Morris, Ogden, Ross, Sheafe, Wells, and White.

NAYS-Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, S. T. Mason, Muhlenberg, Nicholas, Pinckney, and Stone.

[Eleventh Congress-First session.]

SAMUEL SMITH,

Senator from Maryland from March 4, 1803, to March 3, 1815, and from December 17, 1822, to March 3, 1833.

On the expiration of Mr. Smith's first term, viz, March 3, 18509, the legislature of Maryland not having elected his successor, and not then being in session, he was appointed by the governor on March 4 to fill the vacancy until the next meeting of the legislature, which would take place on the 5th of June next. Thereupon Mr. Smith addressed a letter to the Senate, setting forth these facts, and submitting to its determination the question whether the appointment would or would not cease on the first day of the meeting of the legislature. It was determined that he was ontsled to hold his seat in the Senate during the session of the legislature, unless the legislature should fill such vacancy by the appointment of a Senator, and the Senate be officially informed thereof. Under these credentials” Mr. Smith held his scat during the pecial session of the Senate March 4 7, 1869, and during the first session of the Eleventh Congress (May 22 to June 28, 1509, On the 16th of November following he was elected by the legislature, and on December 4, in the next session of Congress, he produced his credentials of election and the oath was administered.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1800-10, within pages 15-25. MONDAY, May 29, 1809.

The President laid before the Senate a letter from Mr. Smith, of Maryland, stating that being appointed by the executive of that State a Senator, in conformity with the Constitution, until the next meeting of the legislature, which will take place on the 5th day of June next, he submits to the determination of the Senate the question whether an appointment under the executive of Maryland to represent that State in the Senate of the United States will or will not cease on the first day of the meeting of the legis lature thereof? And the letter was read; and,

After debate, it was agreed that the further consideration thereof be postponed until to-morrow.

TUESDAY, May 30, 1809.

The Senate resumed the consideration of the letter from Mr. Smith, of Maryland, communicated yesterday; and,

On motion of Mr. Giles, the further consideration thereof was postponed to the 5th of June next.

TUESDAY, June 6, 1809.

The Senate resumed the consideration of the letter of Mr. Smith, a Senator from the State of Maryland; and

Mr. Giles submitted a resolution, which was amended, and is as follows: **Resolved, That the Hon. Samuel Smith, a Senator appointed by the executive of the State of Maryland to fill the vacancy which happened in the office of Senator for that State, is entitled to hold his seat in the Senate of the United States during the session of the Legislature of Maryland, which, by the proclamation of the governor of said State, was to commence on the 5th day of the present month of June; unless said legislature shall fill such vacancy by the appointment of a Senator, and this Senate be officially informed thereof. **

On motion by Mr. Anderson to amend the motion by striking out all after the word **resolved," and inserting:

**That any Senator of this body who holds a seat under an executive appointment cannot, according to the provisions of the Constitution of the United States, be entitled to continue to hold his seat as a member of this body after the meeting of the legislature of the State from which such Senator may be a member,"

And a division of the motion for amendment was called for, and the question having been taken on striking out, it passed in the negative; and,

The motion for amendment having been lost, the original motion was agreed toyeas 19, nays 6; as follows:

YLAS-Messrs Anderson, Brent, Franklin, Gaillard, German, Giles, Gilman, Goodrich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Robinson, Smith of New York, Thruston, White, and Whiteside,

NAYS-Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner.

[Special session of Senate, March, 1825.]

JAMES LANMAN,

Senator from Connecticut from March 4, 1819, to March 3, 1825.

Mr. Lanman's term expired March 3, 1825. March 4, 1825, he produced credentials of appointment by the governor to fill the vacancy. The credentials of appointment were dated February 8, 1825, and set forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to the governor. They were "to take effect immediately after the 3d day of March, 1825, and to continue until the next meeting of the legislature." Exception being taken to the credentials, they were referred to a committee, who reported the facts as above. On motion that he be admitted, it was determined in the negative, the grounds on which the Senate proceeded not being given.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 2d sess. 18th Cong., 1824-25, within pages 272-283. A slightly fuller sketch of the debate than that here given may be found in Niles's Weekly Register, vol. 28, pages 31, 32.

FRIDAY, March 4, 1825.

The President laid before the Senate a letter from the Hon. James Lanman, inclosing the credentials of his appointment by the governor of Connecticut as a Senator of the United States, "to take effect immediately after the 3d day of March, 1825, and to continue until the next meeting of the legislature," and expressing his readiness to receive the usual qualifications.

The letter and credentials were read.

On motion by Mr. Holmes, of Maine, that Mr. Lanman be admitted to take the oath required by the Constitution, a debate ensued, and,

On motion,

Ordered, That the further consideration thereof be postponed until to-morrow.

SATURDAY, March 5, 1825. The Senate resumed the consideration of the motion of yesterday, "that Mr. Lanman be admitted to take the oath required by the Constitution," and,

On motion by Mr. Eaton,

Ordered, That said motion, together with the credentials of Mr. Lanman, be referred to a select committee, to consist of three members, to consider and report thereon. Mr. Eaton, Mr. Edwards, and Mr. Tazewell were appointed the committee. Mr. Van Buren submitted the following motion for consideration:

"Resolved, That the Hon. James Lanman have leave to be heard at the bar of the Senate on the question as to his right to a seat therein under an appointment by the executive of Connecticut."

MONDAY, March 7, 1825.

Mr. Eaton, from the select committee to whom was referred, on the 5th instant, the motion that Mr. Lanman be admitted to take the oath required by the Constitution," together with the credentials of Mr. Lanman, submitted the following report, which was read:

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Eaton, Edwards, and Tazewell.]

That Mr. Lanman's term of service in the Senate expired on the 3d March. On the 4th, he presented to the Senate a certificate, regularly and properly authenticated, from Oliver Wolcott, governor of the State of Connecticut, setting forth that the President of the United States had desired the Senate to convene on the 4th day of March, and had caused official notice of that fact to be communicated to him.

The certificate of appointment is dated the 8th of February, 1825, subsequent to the time of notification to him by the President. The certificate further recites that, at the time of its execution, the legislature of the State was not in session, and would not be until the month of May.

1

The committee have looked into the Journals of the Senate to discover if they could find any authority or decision by them on this question; and the following have been found recorded:

"On the 27th of April, 1797, William Cocke was appointed a Senator from that State