question. If a State refuses to appoint two senators by some means known to the Constitution, it does consent to be deprived of its equal suffrage in the Senate. And in such case the Senate cannot supply the deficiency by creating a senator; but it can determine upon the validity of his appointment, whether it comes from the legislature or the executive of the State.

There are two modes by which senators may be appointed, and whether appointed by the one or the other mode, they possess the same power and exercise the same rights and privileges and receive the same emoluments. These modes may be called primary and contingent. The first rests with the legislature and the second with the executive of the State, when a vacancy happens in the recess of the legislature.

The committee are of opinion that the framers of the Constitution, in providing these two modes by which senators may be appointed, had in view the obvious propriety, if not necessity, of having two senators from each State, at all times in commission and ready for public service. The committee do not think that the language above quoted, "the executive thereof may make temporary appointments until the next meeting of the legislature," is very perspicuous, definite or concise, in its phraseology or meaning, but, on the contrary, it is subject to two constructions. By one of these constructions both the power to appoint and the term of office of the appointee would terminate upon the meeting of the legislature, and thus leave the State for some days, until the legislature could appoint and the new senator reach the seat of government, without an "equal suffrage in the Senate," a condition which the committee think it was the intention of the constitutional convention to avoid. "The executive thereof may make temporary appointments until the next meeting of the legislature." What may be done until the next meeting of the legislature? May appointments be made until that time? Or may the appointee hold his office until that period and no longer? Or do both determine on the next meeting of the legislature?

The committee think it is a limitation upon the power of the executive to make appointments in the recess of the legislature, and which cannot be exercised after its next meeting; but that the force or effect of such appointment, viz: the commission and office continue until superseded by the action of the primary appointing power, or the expiration of the senatorial term. In giving this exposition to this provision of the Constitution, the committee believes it has consulted and gives effect to the spirit of that instrument, and has found the true intention and design of its framers, that the Senate should be composed of two senators from each State.

On the 6th of June, 1809, the Senate adopted the following resolution:

"Resolved, That the Hon. Samuel Smith, a senator appointed by the executive 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."

The Senate, in this instance, after able and full debate, has solemnly determined that the office of a senator, appointed by the executive, does not end on the next meeting of the legislature, but that it may continue during its session.

The construction that the office does not terminate on the meeting of the legislature has received the uniform approval of the Senate from that time till this; for, in all instances, (and they are numerous,) the senator appointed by the executive has not only held his office until the next meeting of the legislature, but until his successor was appointed and made his appearance here to qualify.

In the late cases of Mr. Winthrop and Mr. Rantoul of Massachusetts, and of Mr. Merryweather and Mr. Dixon of Kentucky, many able senators, to whose opinions great deference is due, expressed their convictions that it was a limitation of time, within which the appointment must be made, but that the office continued until superseded by the legislature. If, then, the office does not terminate on the meeting of the legislature, when will it terminate? Can meeting be construed into end, dissolution or adjournment? Your committee thinks not.

With these adjudications of the Senate, and the exposition in debate by able senators, and in view of the propriety, if not the necessity, of having a full representation from each State, in the Senate before us, and believing the language of the Constitution warrants the interpretation we have given it, your committee has come to the conclusion that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the following resolution:

Resolved, That the Honorable Samuel S. Phelps is entitled to retain his seat in the Senate of the United States.

MINORITY REPORT.

The Committee on the Judiciary, to whom was referred the resolution of the Senate of the 4th instant, which reads as follows:

Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to a seat in the Senate of the United States, has reported thereon.

As the undersigned dissent from the conclusions of a majority of their colleagues, they ask leave to submit the following report of the minority. The facts upon which the resolution was founded are as follows:

That the Hon. Samuel S. Phelps was appointed by his excellency the governor of the State of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States, which had occurred by the death of the Hon. William Upham, a senator, whose term of six years would have continued until the 4th March, 1855; and that since the temporary appointment by the governor of said State, the legislature of Vermont has been convened at their annual session, and adjourned without filling the vacancy, as prescribed by the Constitution, which reads as follows:

"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 question presented to the committee by the foregoing resolution may be thus stated: What shall be the operation of an appointment of a senator made by the governor of a State in the recess of its legislature, where the legislature has met and failed to fill the vacancy by an election?

The decision of this question depends upon the construction of the above words of the Constitution. If the power to fill the vacancy is devolved exclusively upon the legislature at its next meeting, then it would follow that the appointing power of the executive would be exhausted; and the senator appointed by him could, according to precedent, hold his seat only during the session of the legislature; or, in other words, his commission would expire at the adjournment of the legislature.

The question may be presented in another point of view, which might possibly lead to a different conclusion. If the legislature has merely the potential capacity to fill the vacancy according to its discretion, then a failure to perform this function might leave the executive appointment good to fill a continuing vacancy.

This reduces the question to this proposition, viz: Do the words of

the Constitution impose a limitation upon the office or the appointing power?

Before stating the conclusion of the undersigned, it may be proper to cite the precedents which are applicable to the question under consideration.

The first case upon record is as follows: George Read, a senator from the State of Delaware, resigned his seat upon the 18th day of September, 1793, and during the recess of the legislature of said State. The legislature of the said State met in January, and adjourned in February, 1794. 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-the Senate decided

That Kensey Johns was not entitled to a seat in the Senate of the United States, as a session of the legislature of the said State had intervened, between the resignation of the said George Read and the appointment of the said Kensey Johns.

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:

That Mr. Lanman's term of service in the Senate expired on the 3d March. On the fourth, 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. The Senate decided that Mr. Lanman was not entitled to a seat in the Senate of the United States.

In May, 1809, the President of the Senate laid before that body a letter from the Hon. Samuel 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 legislature thereof.

The Senate decided that the Hon. Samuel Smith, a senator appointed to fill a vacancy, was 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 convene on the 5th day of the present month of June; unless said legislature shall fill such vacancy by the appointment of a senator, and the Senate be officially informed thereof.

The Chairman of the Committee on the Judiciary, at the 2d session of the 31st Congress, to whom was referred the resolution of the