KENSEY JOHNS (1759-1848)  (Delaware)

Election Case (appointment)

March 24, 1794 to March 28, 1794

Issues
Right of governor to make appointment to a term not previously filled by a legislature

Chronology:
Credentials presented: Mar. 24, 1794
Referred to committee: Mar. 24, 1794
Committee report: Mar. 26, 1794
Senate vote: Mar. 28, 1794

Result: Not seated

Background

When George Read, a signer of the Declaration of Independence from Delaware, resigned his Senate seat in September 1793, the state legislature was unable to agree upon a replacement.  Not wishing to have Delaware only partially represented in the Senate, Governor Joshua Clayton appointed Read's former law student, Kensey Johns, to the seat on March 19, 1794.  Johns, a Federalist of distinguished record, had participated as a "minuteman" in the American Revolution, studied law with both Read and Judge Samuel Chase, and served as a member of the Delaware Constitutional Convention.  Johns' appointment provided the catalyst for a continuation of the power struggle between Federalists and Republicans in the Senate.  Republicans, still smarting from the expulsion a month earlier of their colleague, Albert Gallatin, seized upon the Johns appointment as a vehicle for retaliation.

Statement of the Case

Republicans argued that Governor Clayton had violated the provision in Article I, section 3 of the Constitution that restricted gubernatorial appointments to periods when state legislatures were in recess. The Delaware legislature had met in full regular session between the resignation of Read and the appointment of Johns, giving the state ample opportunity to fill the vacancy under prescribed constitutional arrangements.  Thus, the governor's actions appeared to be without legal foundation, and when Johns presented his credentials on March 24, 1794, the Senate referred the matter to the Committee of Elections. Two days later, the committee reported that Johns was "not entitled to a seat" in the Senate.

 

Response of the Senate

At the outset, the Federalists, although disappointed to lose an ally in the closely divided Senate, acknowledged the validity of the challenge.  The clarity of the constitutional wording made it apparent that Johns had no real case.  Following a short investigation, the obvious illegality of the Johns appointment brought a quick resolution on the Senate floor.  With eight Federalist senators joining their Republican opponents, the Senate on March 28, 1794, by a vote of 20 to 7, agreed to the committee report and refused to seat Kensey Johns.

 

Conclusion

Here, the Senate first experienced the difficulties created by snarled state procedures that would continue to embroil it in election disputes throughout the nineteenth century. Impatient with the impasse in the state legislature, the Delaware governor in 1794 tried to sidestep the internal conflicts and guarantee full senatorial representation for the state. 

After the Senate's action, the legislature took several more months to resolve its disagreement before finally sending Federalist Henry Latimer to the Senate in February 1795. The long delay and the bitter partisan strife hardly improved the reputation of the increasingly beleaguered Federalist Party.

Kensey Johns accepted the Senate's decision and returned to Delaware, where he continued in public service.  He served as the chief justice of Delaware from 1799 to 1830, when he became chancellor of the state.  He died in 1848.

 

Sources

U.S. Congress. Senate. Annals of Congress. 3d Cong., 1st sess. (See pp. 73-78.)

________. The United States Senate, 1787-1801: A Dissertation on the First Fourteen Years of the Upper Legislative Body, by Roy Swanstrom. S. Doc. 100-31. 100th Cong., 1st sess., 1988; reprint of 1962 edition. (See pp. 49-50.)   

Malone, Dumas, ed. Dictionary of American Biography. Vol. 10. New York, 1946; reprint of 1935 ed. (See p. 76.)

Read, William Thompson, ed. Life and Correspondence of George Read. Philadelphia, 1870. (See pp. 552-62.)