Pash B a 3 ne i — KP 4576 Ae, /FO%, COMPILATION oF SENATE ELECTION GASES FROM 1789 To 1885. BY GEORGE §. TAFT, Clerk to Committee on Privileges and Elections, U. S. Senate. CONTINUED TO MARCH 8, 1893, BY GEORGE P. FURBER, Clerk to Committee on Privileges and Elections, U. S. Senate. CONTINUED TO MARCH 8, 1903, BY GEORGE M. BUCK, Clerk to Committee on Privileges and Elections, U. S. Senate. ——— << © <> © qe WASHINGTON: GOVERNMENT PRINTING OFFICE, 1903. (340929 PREFACE. Two compilations of Senate election cases have been made, one by Messrs. Clarke and Hall, consisting of cases from 1789 to 1834, and one by Mr. D. W. Bartlett, consisting of cases from 1834 to 1865. Each of these compilations made up but a small part of volumes containing in addition the contested-election cases in the House of Representatives for the respective periods. This volume contains the Senate cases from 1789 to December, 1885. I have not made use of the early compila- tions referred to, for the reason that, inasmuch as this volume is con- fined to Senate cases and so more limited in its scope, I have been able to take up more cases of minor importance than are reported in the early compilations, and to include in the important cases more of the matter comprising their history than is found in the reports of the same cases in the early compilations. . The volume contains not only contested cases, strictly speaking, but all cases in which the right to a seat of any person who has presented credentials has been questioned. in such a manner that the Senate has deemed proper to investigate or to discuss the question. The general plan in making up the cases has been to ee the reports ot committees, majority and minority, in all cases in which there were reports; transcripts from the journals of the proceedings of the Senate relating to them; and inserted references to the debates of each day. In those cases in which there were no reports, extracts from debates . have usually been given. In a few of the early cases, in which the reported debates are brief, the whole debate is given. ach case is accompanied by a headnote stating the points in question and the action of. the Senate. I have separated into a class by themselves those cases involving the question of the powers of governors of States to fill vacancies; and in connection with these cases is given a list, prepared from the creden- tials on file, of all the appointments of Senators by governors. It was my original purpose to make a separate class of the expulsion cases, and to make certain other divisions into classes, but as certain of the cases involve several different questions, it seemed better to arrange them all, with the exception of the class first referred to, chronologically. An introduction contains extracts from the debates in the Federal Convention of 1787, taken from the Madison Papers, on such parts of the Constitution as relate to the election and qualifications of Senators; extracts from the Constitution relating to the same; and the act of July 26, 1866, relating to the election of Senators. GEORGE 8. TAFT. Wasuineton, December 1, 1885. Tit PREFACE TO THE SECOND EDITION. In preparing this second edition of the Senate Election Cases I have done little more than to continue the work of Mr. Taft. The cases which have arisen since December, 1885, have been added in their chronological order, with the exception of the case of Mr. Chilton, which has been inserted with the ‘‘ Cases concerning the power of execu- tives of States to fill vacancies.” In one respect I have varied Mr. Taft’s arrangement. I have followed in part what he states in his preface was his original plan, and have placed in a group by them- selves the cases of expulsion, as they differ distinctly from the cases in which the right to a seat is contested. The form of the reports of the cases is the same as that adopted in the first edition. The index has been carefully revised and enlarged, thereby, it is hoped, increasing the value of the collection very materially. . GEORGE P. FURBER. Wasuineton, D. C., March 3, 1893. Vv PREFACE TO THE THIRD EDITION. In the preparation of the third edition of the Senate Election Cases the method and order adopted by Mr. Taft and continued by Mr. Furber have been followed inthe main. The cases arising since March 8, 1893, have been grouped in two divisions: ‘‘ Cases concerning the power of executives of States, to fill vacancies,” and ‘‘ Miscellaneous cases,” as was done by Mr. Taft in the original compilation and after- wards by Mr. Furber in the additions made by him. None of the cases first appearing in this edition involved the question of the “Expulsion of Senators.” Only a few changes have been made in the form of the reports of cases from that adopted in the first and second editions, and these changes will, it is believed, at once commend themselves to those who may have occasion to consult the official records referred to in the book. The index has been carefully revised and considerably enlarged by the insertion of additional titles and cross references. GEORGE M. BUCK. Wasuineton, D. C., March, 3, 1903. VI INTRODUCTION. EXTRACTS FROM THE DEBATES IN THE FEDERAU CON- VENTION. PORTIONS OF THE REPORT OF THE COMMITTEE OF DETAIL, MADE AUGUST 6, 1787, RELATING TO THE ELEOTION AND QUALIFICA- TIONS OF SENATORS. ART. V.—SEoT. 1. The Senate of the United States shall be chosen by the 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. Each member shall have one vote. SEor. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two, and three. The seats of the members of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; of the third class at the expiration of the sixth year; so that a third part of the members may be chosen every second year. SEot, 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen. Srcor. 4. The Senate shall choose its own President and other officers. ART. VI.—SeEctT. 1. The times, and places, and manner of holding the elections of the members of each House shall be prescribed by the legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States. Szor., 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House with regard to property as to the said legislature shall seem expedient. Szrct. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day. Snot. 4, Each House shall be the judge of the elections, returns, and qualifications of its own members. ; SeEor. 5. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each House shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress and in going to and returning from it. Srot. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behavior; and may expel a member. SEor. 7. The House of Representatives, and the Senate when it shall be acting in a legislative capacity, shall keep a journal of their proceed- va VIII SENATE ELECTION CASES, ings; and shall, from time to time, publish them; and the yeas and nays of the members of each House on any question shall, at the desire of one-fifth part of the members present, be entered on the Journal. Srct. 8. Neither House, without the consent of the other, shall ad- journ for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the article. Sect. 9. The members of each House shall be ineligible to,-and inca- pable of holding, any office under the authority of the United States during the time for which they shall respectively be elected; and the members of the Senate shall be ineligible to, and incapable of hold- ing, any such office for one year afterwards. Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State in which they shall be chosen. DEBATES. THURSDAY, August 9, 1787. Article V, section 1, was then taken up. Mr. Wilson objected to vacancies in the Senate being supplied by the executives of the States. It was unnecessary, as the legislatures will meet so frequently. It removes the appointment too far from the peo- ple, the executives in most of the States being elected by the legisla- tures. As he had always thought the appointment of the executive by the legislative department wrong, so it was still more so that the execu- tive should elect into the legislative department. Mr. Randolph thought it necessary, in order to prevent inconvenient chasms in the Senate. In some States the legislatures meet but once ayear. As the Senate will have more power, and consist of a smaller number than the other House, vacancies there will be of more conse- quence. The executives might be safely trusted, he thought, with the appointment for so short a time. Mr. ELLSWORTH. It is only said that the executive may supply va- cancies. When the legislative meeting happens to be near the power will not be exerted. As there will be but two members from a State vacancies may be of great moment. Mr. WILLIAMSON. Senators may resign or not accept. This provi- sion is therefore absolutely necessary. . On the question for striking out “vacancies shall be supplied by the executives”— Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, South Carolina, Georgia, no, 8; Maryland, divided. Mr, Williamson moved to insert after “vacancies shall be supplied by the executives,” the words, “unless other provisions shall be made by the legislature” (of the State). Mr. ELLSwortTu. He was willing to trust the legislature or the exec- utive of a State, but not to give the former a discretion to refer appoint- ments for the Senate to whom they pleased. On the question on Mr. Williamson’s motion— Maryland, North Carolina, South Carolina, Georgia, ay, 4; New Hamp- shire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Vir- ginia, no, 6. INTRODUCTION. x Mr. Madison, in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after “ vacancies,” and insert the words, “ happen- ing by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such vacancies shall happen, or by the executive thereof until the next meet- ing of the legislature.” Mr. GOUVERNEUR Morzis. This is absolutely necessary; otherwise, as members chosen, into the Senate are disqualified from being ap- pointed to any office by section 9 of this article, it will be in the power of a legislature, by appointing a man a Senator against his consent, to deprive the United States of his services. The motion of Mr. Madison was agreed to nem. con. Mr. Randolph called for a division of the section, so as to leave adis- tinct question on the last words, “‘each member shall have one vote.” * * * * * On the question on the first section, down to the last sentence— New Hampshire, Connecticut, New Jersey, Delaware, Maryland, Vir- ginia, Georgia, ay, 7; Massachusetts, Pennsylvania, North Carolina, no, 3; South Carolina, divided. (In the printed Journal, Pennsyl- vania, ay.) * * * * * * Article V, section 2, was then taken up. Mr. Gouverneur Morris moved to insert, after the words, “immedi- ately after,” the following: “they shall be assembled in consequence of,” which was agreed to nem. con., a8 was then the whole section. Article V, section 3, was then taken up. Mr. Gouverneur Morris moved to insert fourteen, instead of four years’ citizenship as a qualification for Senators; urging the danger of admitting strangers into our public councils. Mr, Pinckney seconded him. Mr. Ellsworth was opposed to the section, as discouraging meritorious aliens from emigrating to this country. Mr. Pinckney. As the Senate is to have the power of making treaties and managing our foreign affairs, there is peculiar danger and impro- priety in opening its doors to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject, who made it death for any stranger to intrude his voice into their legislative pro- ceedings. Colonel Mason highly approved of the policy of the motion. Were it not that many not natives of this country had acquired great credit during the Revolution, he should be for restraining the eligibility into the Senate to natives. : Mr. Madison was not averse to some restrictions on this subject, but could never agree to the proposed amendment. He thought any restric- tion, however, in the Constitution, unnecessary and improper—unneces- sary, because the national Legislature is to have the right of regulating naturalization, and can by virtue thereof fix different periods of resi- dence as conditions of enjoying different privileges of citizenship; im- proper, because it will give a tincture of illiberality to the Constitution ; because it will put it out of the power of the national Legislature, even by special acts of naturalization, to confer the full rank of citizens on meritorious strangers, and because it will discourage the most desirable class of people from emigrating to the United States. Should the pro- posed Constitution have the intended effect of giving stability and repu- tation to our Government, great numbers of respectable Europeans, men x SENATE ELECTION CASES. who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations, though they should not covet the public honors. He was not apprehensive that any dangerous number of strangers would be appointed by the State legislatures ifthey were left at liberty to do so, nor that foreign powers would make use of strangers as instruments for their purposes. Their bribes would be expended on men whose circumstances would rather stifle than excite jealousy and watchfulness in the public. Mr. Butler was decidedly opposed to the admission of foreigners without a long residence in the country. They bring with them not only attachments to other countries, but ideas of government so dis- tinct from ours that in every point of view they are dangerous. He acknowledged that if he himself had been called into public lite within a short time after his coming to America, his foreign habits, opinions, and attachments would have rendered him an improper agent in public affairs. He mentidned the great strictness observed in Great Britain on this subject. Dr. Franklin was not against a reasonable time, but should be very sorry to see anything like illiberality inserted in the Constitution. The people in Europe are friendly to this country. Even in the country with which we have been lately at war we have now and had during the war a great many friends, not only among the people at large, but in both houses of Parliament. In every other country in Europe all the people are our friends. We found in the course of the Revolution that many strangers served us faithfully, and that many natives took part against their country. When foreigners, after looking about for some other country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence and affection. Mr. Randolph did not know but it might be problematical whether emigrations to this country were, on the whole, useful, or not, but he could never agree to the motion for disabling them, for fourteen years, to participate in the public honors. He reminded the convention of the language held by our patriots during the Revolution, and the prin- ciples laid down in all our American constitutions. Many foreigners may have fixed their fortunes among us under the faith of these invi- tations. All persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed system. He would go as far as seven years, but no farther. Mr. Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possi- bility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making. He remarked the illiberal com- plexion which the motion would give to the system, and the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement and mortification they must feel from the degrading discrimination now proposed. He had himself experi- enced this mortification. On his removal into Maryland he found him- self, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he as suredly did not desire, and would not have accepted, the offices to which they related. Tobe appointed to a place may be a matter of indifference. To be incapable of being appointed is a circumstance grating and mortifying. INTRODUCTION. “XI Mr. GOUVERNEUR Morris. The lesson we are taught is that we should be governed as much by our reason and as little by our feelings -as possible. What is the language of reason on this subject? That we should not be polite at the expense of prudence. There was a modera- tion in all things. It is said that some tribes of Indians carried their hospitality so far as to offer to strangers their wives and daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings, but would not carry the complaisance so far as to bed them with his wife. He would let them worship at the same altar, but did not choose to make priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of Government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every society, from a great nation down to a club, had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. As to those philo- sophical gentlemen, those citizens of the world, as they called them- selves, he owned he did not wish to see any of them in our public councils. He would not trust them. The men who can shake off their attachments to their own country can never love any other. These attachments are the wholesome prejudices which uphold all govern- ments. Admit a Frenchman into your Senate, and he would study to increase the commerce of France; an Englishman, and he will feel an equal bias in favor of that of England. It has been said that the leg- islatures will not choose foreigners, at least improper ones. There was no knowing what legislatures would do. Some appointments made by them proved that everything ought to be apprehended from the cabals practiced on such occasions. He mentioned the case of a foreigner who left this State in disgrace, and worked himself ‘into an appointment from another to Congress. On the question on the motion of Mr. Gouverneur Morris to insert fourteen in place of four years— New Hampshire, New Jersey, South Carolina, Georgia, ay, 4; Mas- sachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, 7. On the question for thirteen years, moved by Mr. Gouverneur Mor- ris, it was negatived, as above. On ten years, moved by General Pinckney, the votes were the same. Dr. Franklin reminded the convention that it did not follow, from an omission to insert the restriction in the Constitution, that the persons in question would be actually chosen into the legislature. Mr. RUTLEDGE. Seven years of citizenship have been required for the House of Representatives. Surely a longer time is requisite for the Senate, which will have more power. Mr. WILLIAMSON. It is more necessary to guard the Senate in this case than the other House. Bribery and cabal can be more easily practiced in the choice of the Senate, which is to be made by the legis- latures, composed of a few men, than of the House of Representatives, who will be chosen by the people. Mr. Randall will agree to nine years, with the expectation that it will be reduced to seven, if Mr. Wilson’s motion to reconsider the vote fix- ing seven years for the House of Representatives should produce a reduction of that period. On the question for nine years— ; New Hampshire, New Jersey, Delaware, Virginia, South Carolina, XII SENATE ELECTION CASES. Georgia, ay, 6; Massachusetts, Connecticut, Pennsylvania, Maryland, no, 4; North Carolina, divided. The term “resident” was struck out, and “inhabitant” inserted nem. con. Article V, section 3, as amended, was then agreed to nem. con. (198). Article V, section 4, was agreed to nem. con. Article VI, section 1, was then taken up. Mr. Madison and Mr. Gouverneur Morris moved to strike out “each House,” and to insert “the House of Representatives”; the right of the legislatures to regulate the times and places, &c., in the election of Senators being involved in the right of appointing them; which was disagreed to. A division of the question being called for, it was taken on the first part down to “but their provisions concerning,” &c. The first part was agreed to nem. con. Mr. Pinckney and Mr. Rutledge moved to strike out the remaining part, viz, “but their provisions concerning them may at any time be altered by the Legislature of the United States.” The States, they contended, could and must be relied on in such cases. Mr. GORHAM. It would be as improper to take this power from the the national Legislature as to restrain the British Parliament from regulating the circumstances of elections, leaving this business to the counties themselves. Mr. MaAvison. The necessity of a general government supposes that the State legislatures will sometimes fail or refuse to consult the com- mon interest at the expense of their local convenience or prejudices. The policy of referring the appointment of the House of Representatives to the people, and not to the legislatures of the States, supposes that the result will be somewhat influenced by the mode. This view of the question seems to decide that the legislatures of the States ought not to have the uncontrolled right of regulating the times, places, and manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the dis- cretionary power. Whether the electors should vote by ballot, or viva voce, should assemble at this place or that place, should be divided into districts or all meet at one place, should all vote for all the Rep- resentatives or all in a district vote for a number allotted to the dis- trict—these, and many other points, would depend on the legislatures, and might materially affect the appointments. Whenever the State legislatures had a favorite measure to carry they would take care so to mold their regulations as to favor the candidates they wished to suc- ceed. Besides, the inequality of the representation in the legislatures of particular States would produce a like inequality in their representa- tion in the national Legislature, as it was presumable that the coun- ties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controlling power to the national Legislature? Ofwhom was itto consist? First, ‘of a Senate to be chosen by the State legislatures. If the latter, therefore, could be trusted, their representatives could not be dangerous. Secondly, of Representatives elected by the same people who elect the State legislatures. Surely, then, if confidence is due to the latter, it must be due to the former. It seems as improper in principle, though it might be less inconvenient in practice, to give to the State legisla- tures this great authority over the election of the Representatives of the people in the general legislature as it would be to give to the latter a like power over the election of their representatives in the State legislatures. INTRODUCTION. XIII Mr. Kine. If this power be not given to the national Legislature, their right of judging of the returns of their members may be frus- trated. No probability has been suggested of its being abused by them. Although this scheme of erecting the General Government on the authority of the State legislatures has been fatal to the Federal estab- nee it would seem as if many gentlemen still foster the dangerous ideas, Mr. Gouverneur Morris observed that the States might make false returns, and then make no provisions for new elections. Mr. Sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the State legislatures. The motion of Mr. Pinckney and Mr. Rutledge did not prevail. The word “respectively” was inserted after the word “State.” On the motion of Mr. Read, the word “their” was struck out, and “regulations in such cases” inserted, in place of “provisions concern- ing them”—the clause then reading, “but regulations, in each of the foregoing cases, may, at any time, be made or altered by the Legisla- ture of the United States.” This was meant to give the national Leg- islature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether. Article VI, section 1, as thus amended, was agreed to nem. con. (199). Fripay, August 10, 1787. [On the question of agreeing to section 2, Article VI, the ayes were 3, the noes 7. The debate is here omitted.] Section 3 of Article VI was amended and agreed to. The debate is here omitted. Sections 4 and 5 of Article VI were then agreed to nem. con. Mr. Madison observed that the right of expulsion (Article VI, sec- tion 6) was too important to be exercised by a bare majority of a quorum, and in emergencies of faction might be dangerously abused. He moved that ‘‘with the concurrence of two-thirds” might be inserted between “may” and “expel.” Mr. Randolph and Mr. Mason approved the idea. Mr. GOUVERNEUR MorRRIS. This power may be safely trusted to a majority. To require more may produce abuses on the side of the minority. A few men, from factious motives, may keep in a member who ought to be expelled. Mr. Carroll thought that the concurrence of two-thirds, at least, ought to be required. On the question requiring two-thirds in cases of expelling a member, 10 States were in the affirmative; Pennsylvania, divided. Article VI, section 6, as thus amended, was then agreed to nem. con. 202). ( Sactiot 7 of Article VI was amended and agreed to. The debate is here omitted.] ; SATURDAY, August 11, 1787. [Section 8 of Article VI was amended and agreed to. The debate is here omitted.] : TUESDAY, August 14, 1787. In convention.—Article VI, section 9, was taken up. Mr. Pinckney argued that the making the members ineligible to offices was degrading to them, and the more improper as their election into the legislature implied that they had the confidence of the people; that it was inconvenient, because the Senate might be supposed to XIV SENATE ELECTION CASES. contain the fittest men. He hoped to see that body become a school of public ministers, a nursery of statesmen. That it was impolitic, because the legislature would cease to be a magnet to the first talents and abilities. Hemoved to postpone the section, in order to take up the following proposition, viz: “The members of each House shall be incapable of holding any office under the United States for which they, or any.others for their benefit, receive any salary, fees, or emoluments of any kind; and the accept- ance of such office shall vacate their seats respectively.” General Mifflin seconded the motion. Colonel Mason ironically proposed to strike out the whole section, asa more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American soil; for completing that aristocracy which was probably in the contemplation of some among us; and for inviting into the legislative service those generous and benevolent characters who will do justice to each other’s merit by carving out offices and rewards for it. In the present state of American morals and manners, few friends, it may be thought, will be lost to the plan by the opportunity of giving premiums to a mer- cenary and depraved ambition. Mr. MeroeEr. It is a first principle in political science that whenever the rights of property are secured an aristocracy will grow out of it. Elective governments also necessarily become aristocratic, because the rulers, being few, can and will draw emoluments for themselves from the many. The governments of America will become aristocracies. They are so already. The public measures are calculated for the ben- efit of the governors, not ofthe people. The people are dissatisfied, and complain. They change their rulers, and the public measures are changed, but itis only a change of one scheme of emolument to the rulers of another. The people gain nothing by it but an addition of instability and uncertainty to their other evils. Governments can only be main- tained by force or influence. The executive has not force; deprive him of influence by rendering the members of the legislature ineligible to executive offices, and he becomes a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder. The legislature must and will be composed of wealth and abilities, and the people will be governed by a junto. The executive ought to have a council, being members of both Houses. Without such aninfluence, the war will be between the aristocracy and the people. He wished it to be between the aristocracy and the executive. Nothing else can protect the people aginst those speculating legislatures which are now plundering them throughout the United States. Mr. Gerry read a resolution of the legislature of Massachusetts, passed before the act of Congress recommending the convention, in which her deputies were instructed not to depart from the rotation established in the fifth article of the Confederation, nor to agree, in any case, to give to the members of Congress a capacity to hold offices under the Government. This, he said, was repealed, in consequence of the act of Congress, with which the State thought it proper to comply in an unqualified manner. The sense of the State, however, was still the same. He could not think, with Mr. Pinckney, that the disqualifi- cation was degrading. Confidence is the road to tyranny. As to ministers and ambassadors, few of them were necessary. It is the opinion of a great many that they ought to be discontinued on our part, that none may be sent among us, and that source of influence shut up. If the Senate were to appoint ambassadors, as seemed to be intended, INTRODUCTION. xv they will multiply embassies for their own sakes. He was not so fond of those productions as to wish to establish nurseries for them. If they are once appointed, the House of Representatives will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the legislature without a prospect of such offices, our situation is deplorable indeed. If our best citizens are actuated by such mercenary views, we had better choose a single despot at once. It will be more easy to satisfy the rapacity of one than of many. According to the idea of one gentleman a Mercer), our Government, it seems, is to be a government of plunder. In that case, it certainly would be prudent to have but one, rather than many, to be employed in it. We cannot be too circumspect in the formation of this system. It will be examined on all sides, and with a very suspicious eye. The people who have been so lately in arms against Great Britain for their liberties will not easily give them up. He lamented the evils existing, at present, under our governments, but imputed them to the faults of those in office, not to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands, it is as com- plete an aristocracy as ever was framed. If great powers should be given to the Senate, we shall be governed in reality by a junto, as has been apprehended. He remarked that it would be very differently con- stituted from Congress. In the first place, there would be but two deputies from each State; in Congress there may be seven, and are generally five. In the second place, they are chosen for six years; those of Congress annually. In the third place, they are not subject to recall; those of Congress are. And, finally, in Congress nine States are necessary for all great purposes; here eight persons will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the House of Representatives, as well as of the Senate, ineligible, not only during, but for one year after the expiration of, their terms. Ifit should be thought that this will injure the legislature, by keeping out of it men of abilities, who are will- ing to serve in other offices, it may be required, as a qualification for other offices, that the candidate shall have served a certain time in the legislature. Mr. GOUVERNEUR Morris. Exclude the officers of the Army and Navy, and you form a band having a different interest from, and opposed to, the civil power. You stimulate them to despise and reproach those ‘talking lords who dare not face the foe.” Let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and, though the civil authority be “intrenched in parchment to the teeth,” they will cut their way to it. He was against rendering the members of the legislature ineligible to offices. He was for rendering them eligible again, after having vacated their seats by accepting office. Why should we not avail ourselves of their services if the people choose to give them their confidence? There can be little danger of corrup- tion, either among the people or the legislatures, who are to be the electors. If they say, We see their merits, we honor the men, we choose to renew our confidence in them, have they not a right to give them a preference, and can they be properly abridged of it? Mr. Williamson introduced his opposition to the motion by referring to the question concerning “money bills.” That clause, he said, was dead. Its ghost, he was afraid, would, notwithstanding, haunt us. It had been a matter of conscience with him to insist on it as long as there was hope of retaining it. He had swallowed the vote of rejection with xVI SENATE ELECTION CASES. reluctance. He could not digest it. All that was said on the uther side was that the restriction was not convenient. We have now got a house of lords which is to originate money bills. To avoid another inconvenience, we are to have a whole legislature at liberty to cut out offices for one another. He thought a self-denying ordinance for our- selves would be more proper. Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills, he did not wish to make it worse by expunging the present section. He had scarcely seen a single corrupt measure in the legislature of North Carolina which could not be traced up to office-hunting. Mr. SHERMAN. The Constitution should lay as few temptations as possible in the way of those in power. Men of abilities will increase as the country grows more populous, and as the means of education are more diffused. Mr. PincknEy. No State has rendered the members of the legisla- ture ineligible to offices. In South Carolina the judges are eligibleinto the legislature. It cannot be supposed, then, that the motion will be offensive to the people. If the State constitutions should be revised, he believed, restrictions of this sort would be rather diminished than multiplied. Mr. Wilson could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting and responsible for the welfare of millions: not immediately represented in this House. He had also asked himself the serious question, what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own judgment in a case where they authorized him to exercise it. Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort, “‘ Did you suppose the people of Pennsylvania had not good sense enough to receive a good government?” Under this impression, he should certainly follow his own judgment, which disapproved of the section. He would re- mark, in addition to the objections urged againstit, that, as one branch of the Legislature was to be appointed by the legislatures of the States, the other by the people of the States—as both are to be paid by the States, and to be appointable to State offices—nothing seemed to be wanting to prostrate the national Legislature butto render its members ineligible to national offices, and by that means take away its power of attracting those talents which were necessary to give weight to the Government, and to render it useful to the people. He was far from thinking the ambition which aspired to offices of dignity and trust an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards which might engage it in the career of public service. He observed that the State of Pennsylvania, which had gone as far as any State into the policy of fettering power, had not rendered the members of the legislature ineligible to offices of Government. Mr. Ellsworth did not think the mere postponement of the reward would be any material discouragement of merit. Ambitious minds will serve two years, or seven years, in the legislature, for the sake of qual- ifying themselves for other offices. This he thought a sufficient secu- rity for obtaining the services of the ablest men in the legislature; although, whilst members, they should be ineligible to public offices. Besides, merit will be most encouraged when most impartially rewarded. If rewards are to circulate only within the legislature, merit out of it will be discouraged. INTRODUCTION. XVII Mr. Mercer was extremely anxious on this point. What led to the appointment of this convention? The corruption and mutability of the legislative councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able, in our private capacities, to support and enforce it; nor will the best part of our citi- zens exert themselves for the purpose. It is a great mistake to sup- pose that the paper we are to propose will govern the United States. It is the men whom it will bring into the government, and interest in maintaining it, that are to govern them. The paper will only mark out the mode and the form. Men are the substance, and must do the busi- ness. All government must be by force or influence. It is not the King of France, but 200,000 janizaries of power, that govern that king- dom. There will be no such force here; influence, then, must be sub- stituted; and he would ask whether this could be done if the members of the legislature should be ineligible to offices of state; whether such a disqualification would not determine all the most influential men to stay at home, and prefer appointments within their respective States. Mr. Wilson was by no means satisfied with the answer given by Mr. Ellsworth to the argument as to the discouragement of merit. The members must either go a second time into the legislature, and dis- qualify themselves, or say to their constituents, ““We served you be- fore only from the mercenary view of qualifying ourselves for offices, and, having answered this purpose, we do not choose to be again elected.” Mr. Gouverneur Morris put the case of a war, and the citizen most capable of conducting it happening to be a member of the legislature. What might have been the consequence of such a regulation at the pee or even in the course, of the late contest for our liber- ties On the question for postponing, in order to take up Mr. Pinckney’s motion, it was lost. New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, ay, 5; Massachusetts, Connecticut, New Jersey, North Carolina, South Caro- lina, no, 5; Georgia, divided. r. Gouverneur Morris moved to insert, after “office,” “except offices in the Army or Navy; but, in that case, their offices shall be va- cated.” Mr. Broome seconds him. Mr. Randolph had been, and should continue, uniformly opposed to the striking out of the clause, as opening a door for influence and cor- ruption. No arguments had made any impression on him but those which related to the case of war, and a coexisting incapacity of the fittest commandersto beemployed. Headmitted great weight in these, and would agree to the exception proposed by Mr. Gouverneur Morris. Mr. Butler and Mr. Pinckney urged a general postponement of Ar- ticle VI, section 9, till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of state to be chosen out of that body. A general postponement was agreed to nem con. (207). [Section 10 of Article VI was amended and agreed to. The debate is here omitted.] SATURDAY, September 1, 1787. In convention.—Mr. Brearly, from the committee of eleven, to which were referred yesterday the postponed part of the Constitution, and parts of reports not acted upon, made the following partial report: — “That in lieu of Article VI, section 9, the words following be in- S. Doc. 11——n XVIII SENATE ELECTION CASES. serted, viz: ‘The members of each House shall be ineligible to any civil office under the authority of the United States, during the time for which they shall respectively be elected; and no person holding an office under the United States shall be a member of either House during his continuance in office.’ ” MonpbAy, September 3, 1787. Mr. Pinckney moved to postpone the report of the committee of eleven (see the 1st of September), in order to take up the following: “The members of each House shall be incapable of holding any office under the United States for which they, or any other for their benefit, receive any salary, fees, or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively.” He was strenuously opposed to an ineligibility of members to office, and, therefore, wished to restrain the proposition to a mere incompati- bility. He considered the eligibility of members of the legislature to the honorable offices of government as resembling the policy of the Romans, in making the temple of Virtue the road to the temple of Fame. On this question— Pennsylvania, North Carolina, ay, 2; New Hampshire, Massachu- setts, Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no, 8. Mr. King moved to insert the word “created” before the word “dur- ing,” in the report of the committee. This, he said, would exclude the members of the first legislature under the Constitution, as most of the offices would then be created. Mr. Williamson seconded the motion. He did not see why members of the legislature should be ineligible to vacancies happening during the term of their election. Mr. Sherman was for entirely incapacitating members of the legisla- ture. He thought their eligibility to offices would give too much influ- ence to the executive. He said the incapacity ought at least to be extended to cases where salaries should be increased, as well as created, during the term of the member. He mentioned, also, the expedient by which the restriction could be evaded; to wit, an existing officer might be translated to an office created, and a member of the legislature, be then put into the office vacated. Mr. Gouverneur Morris contended that the eligibility of members to office would lessen the influence of the executive. If they can not be appointed themselves, the executive will appoint their relations and friends, retaining the service and votes of the members for his purpose, in the legislature; whereas the appointment of the members deprives him of such an advantage. Mr. Gerry thought the eligibility of members would have the effect of opening batteries against good officers, in order to drive them out and make way for members of the legislature. Mr. Gorham was in favor of the amendment. Without it, we go far- ther than has been done in any of the States, or, indeed, any other country. The experience of the State governments, where there was no such ineligibility, proved thatit was not necessary; on the contrary, that the eligibility was among the inducements for fit men to enter into the legislative service. Mr. Randolph was inflexibly fixed against inviting men into the leg- islature by the prospect of being appointed to oftices. Mr. Baldwin remarked, that the example of the States was not ap- plicable. The legislatures there are so numerous that an exclusion of INTRODUCTION. xIx their members would not leave proper men for offices. The case would be otherwise in the General Government. Colonel Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. Mr. Wilson considered the exclusion of members of the legislature as increasing the influence of the executive, as observed by Mr. Gou- verneur Morris; at the same time that it would diminish the general energy of the Government. He said that the legal-disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction. Mr. Pinckney. The first legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the reportof the committee, or even the amend- ment, be agreed to, the great offices, even those of the judiciary depart- ment, which are to continue for life, must be filled, while those most capable of filling them will be under a disqualification. On the question on Mr. King’s motion— New Hampshire, Massachusetts, Pennsylvania, Virginia, North Caro- lina, ay,5; Connecticut, New Jersey, Maryland, South Carolina, Georgia, no, 5. The amendment being thus lost, by the equal division of the States, Mr. Williamson moved to insert the words “created, or the emoluments whereof shall have been increased,” before the word “during,” in the report of the committee. Mr. King seconded the motion, and on the question— New Hampshire, Massachusetts, Pennsylvania, Virginia, North Caro- lina, ay,5; Connecticut, New Jersey, Maryland, South Carolina, no, 4; Georgia, divided. The last clause, rendering a seat in the legislature and an office in- compatible, was agreed to nem. con. The report, as amended and agreed to, is as follows: “The members of each House shall be ineligible to any civil office under the authority of the United States, created, or the emoluments whereof shall have been increased, during thé time for which they shall respectively be elected. And no person, holding any office under the United States, shall be a member of either house during his continuance in office. (251) Adjourned. [September 12, 1787, the Committee to Revise the Style, &c., reported the Constitution, in which the following changes were made in regard to the election and qualifications of Senators. ] Fripay, September 14, 1787. Article I, section 3, the words “by lot”* were struck out nem. con., on motion of Mr. Madison, that some rule might prevail in the rotation that would prevent both the members from the same State from going out at the same time. “ He officio” struck out of the same section, as superfluous, nem. con. ; and “or affirmation,” after “oath,” inserted also unanimously. Mr. Rutledge and Mr. Gouverneur Morris moved—“That persons impeached be suspended from their offices until they be tried and ac- quitted.” * “By lot” had been reinstated from the report of the committee of five, made on the 6th of August, as a correction of the printed report by the committee of style, _ &. XX SENATE ELECTION CASES. Mr. Maprison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favor- able to their views, vote a temporary removal of the existing magis- trate. Mr. King concusred in the opposition to the amendment. On the question to agree to it— Connecticut, South Carolina, Georgia, ay, 3; New Hampshire, Massa- chusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, 8. Article I, section 4, “except as to the places of choosing Senators,” was added, nem. con., to the end of the first clause, in order to exempt the seats of government in the States from the power of Congress. Article I, section 5— “Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judg- ment, require secrecy.” Colonel Mason and Mr. Gerry moved to insert, after the word “parts,” the words “of the proceedings of the Senate,” so as to require publica- tion of all the proceedings of the House of Representatives. It was intimated, on the other side, that cases might arise where se- crecy might be necessary in both Houses. Measures preparatory to a declaration of war, in which the House of Representatives was to con- cur, were instanced. On the question, it passed in the negative. Pennsylvania, Maryland, North Carolina, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Virginia, Georgia, no, 7; South Carolina, divided. Mr. Baldwin observed that the clause, Article I, section 6, declaring that no member of Congress, “during the time for which he was elected. shall be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time,” would not extend to offices created by the Constitution, and the salaries of which would be created, not increased, by Congress at their first session. The members of the first Congress, consequently, might evade the disqualification in this instance. He was neither seconded nor opposed, nor did anything further pass on the subject. EXTRACTS FROM THE CONSTITUTION, ARTICLE. I. SECTION. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided’ as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expi- ration of the fourth Year, and of the third Class at the Expiration of INTRODUCTION. XXI the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Re- cess 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. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exer- cise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concur- rence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Oftice of Honor, Trust or Profit under the United States: but the Party con-. victed shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. ; SEcTION. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. SECTION. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; buta smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such ,Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judg- ment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. SEcTION. 6. The Senators and Representatives shall receive a Com- pensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest ' during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he XXII SENATE ELECTION CASES. was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. ARTICLE XIV, OF THE AMENDMENTS. SECTION 3. No person shall be a Senator or Representative in Con- gress, or elector of President or Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But ecuesese may by a vote of two-thirds of each House, remove such dis- ability. ACT OF JULY 25, 1866. REVISED STATUTES, TITLE Il, CHAPTER 1. Src. 14. The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to repre- sent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Con- gress. Sec. 15. Such election shall be conducted in the following manner: Each house shall openly, by a viva voce vote of each member present, name one person for Senator in Congress from such State, and the name of the person so voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk or secretary thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o’clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Sena- tor. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as re- quired by this section, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for Senator, and the person who receives a majority of all the votes of the joint assem- bly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o’clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected. SkEc. 16. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legislature shall proceed, on the second Tuesday after meeting and or- ganization, to elect a person to fill such vacancy, in the manner pre- INTRODUCTION, XXII be in the preceding section for the election of a Senator for a full erm. Sc. 17. Whenever during the session of the legislature of any State @ vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the legislature has organized and has notice of such va- cancy. Sec. 18. It shall be the duty of the executive of the State from which any Senator has been chosen, to certify his election, under the seal of the State, to the President of the Senate of the United States. Src. 19. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State. COMMITTEE ON PRIVILEGES AND ELECTIONS. The Committee on Privileges and Elections was formed in the first session of the Forty-second Congress. SENATE ELECTION CASHS. L CASES CONCERNING THE POWER OF EXECUTIVES OF STATES TO FILL VACANCIES, [Third Congress—First session. ] KENSEY JUHNS, 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 relat. ing to it from the Annals of Congress, 3d Cong., 1798-95, within pages 78-78. Monpay, arch 24, 1794, Kensey Johns appeared and produced his credentials of an appointment by the gov- ernor 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 di- rected to report thereon; and it passed in the affirmative—yeas 13, nays 12; as follows: Yras—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 o 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: S. Doc. 11——1 4 2 SENATE ELECTION CASES. 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 appoint- ment 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 va- cancy 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 Ken- sey Johns. oe question to agree to this report, it passed in the affirmative—yeas 20, nays 7; as follows: YrAs—Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, Frelinghuysen, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Mitchell, Monroe, Robinson, and Taylor. a 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. URIAH TRACY. 8 [Special session of Senate, March, 1801.] URIAH TRAOY, Senator from Oonnecticut from December 6, 1796, till his death, July 19, 1807. My. Tracy’s first term expired March 3, 1801. On March 4, at a special session of the Senate, he produced credentials of sppoaeant 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 4and5. In May following he was elected by the legislature, and on December 6, the second day ofthe 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: Yras—Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Livermore, J. Mason, Morris, Ogden, Ross, Sheafe, Wells, and White. Nays—Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, 8. T. Mason, Muhlen- berg, Nicholas, Pinckney, and Stone. 4 SENATE ELECTION CASES. [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, 1809, 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 entitled 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 seat during the special session of the Senate March 4-7, 1809, and during the first session of the Eleventh Congress (May 22 to June 28, 1809). 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 relat- ing to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1809-’10, within pages 15-25. Monpay, Way 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 Sth 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 in- formed 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 to— yeas 19, nays 6; as follows: YEAS—Messrs. Anderson, Brent, Franklin, Gaillard, German, Giles, Gilman, Good- rich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Robinson, Smith of New York, Thruston, White, and Whiteside. Nays—Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner. . JAMES LANMAN. 5 [Special session of Senate, March, 1825. ] JAMES LANMAN, Senator from Connecticut from March 4, 1819, to Mareh 3, 1825. Mr. Lanman’s term expired March 8, 1825. March 4, 1825, he produced credentials of appoint. nent by the governor to fill the vacancy. The credentials of appointment were dated February 8, .825, 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 8d day of March, 1825,and to continue until the next meeting of the legislature.”’ Exception being taken to the credentials, they were referred toa 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 relat- ing to itfrom the Senate Journal, 2d sess. 18th Cong., 182425, within pages 272-283, A slightly fuller ererck of the debate than that here given may be found in Niles’s Weekly Register, vol. 28, pages 31, 82. 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 con- tinue 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.’’ Monpay, 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: BEPORT 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. 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 6 SENATE ELECTION CASES. by the governor of Tennessee; his term of service having expired on the 3d of the pre- ceding March, and on the 15th of May took his seat, and was qualified. ; “‘On the 3d of March, 1801, the seat of Uriah Tracy became vacant, the time for which he had been elected having expired. On the 20th of February preceding the governor of Connecticut reappointed him a Senator, and, in pursuance thereof, he was qualified and took his seat. ‘« Joseph Anderson, a Senator from Tennessee, was appointed by the governor a mem- ber of the Senate on the 6th of February, 1809, and on the 4th of March after took his seat; the period for which he had been elected having on the preceding day expired. ‘‘ John Williams, of Tennessee, on the 20th of January, 1817, was appointed a Sen- ator in Congress, to take his seat on the 4th of March, when the term for which he had been elected would expire. Mr. Williams appeared, was qualified, and took his seat.’’ In none of these cases does it appear that there was any objection made, or question raised, except in 1801, in the case of Mr Tracy, when the vote was 13 for and 10 against the right of the member to take his seat. Those are the only analogous cases the com- mittee have been able to find. By reference to the statute laws of Connecticut the committee find that in that State there is a law upon this subject which is in the following words: ‘‘Whenever any va- cancy shall happen in the representation of this State in the Senate of the United States, by the expiration of the term of service of a Senator, or by resignation or otherwise, the general assembly, if then in session, shall, by a concurrent vote of the senate and house of representatives, proceed to fill said vacancy by a new election; and in case such vacancy shall happen in the recess of the general assembly, the governor shall appoint some person to fill the same until the next meeting of the general assembly.”’ The Senate proceeded to consider the motion of the 5th instant, 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; and agreed thereto. Mr. Edwards submitted the following motion; which was read: ‘* Resolved, That the Hon. James Lanman, appointed a Senator by the governor of the State of Connecticut, be now admitted to the oath required by the Constitution.’’ ae the question to agree thereto, it was determined in the negative—yeas 18, nays 23. The yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Bell, Bouligny, Chase, Clayton, D’ Wolf, Edwards, Harrison, Hendricks, Johnston of Louisiana, Kane, Knight, Lloyd of Massa- chusetts, M’Ilvaine, Mills, Noble, Rowan, Seymour, and Thomas. Those who voted in the negative are Messrs. Barton, Benton, Berrien, Branch, Chan- dler, Dickerson, Eaton, Findlay, Gaillard, Hayne, Holmes of Maine, Holmes of Mis- sissippi, Jackson, King of Alabama, Lloyd of Maryland, Macon, Marks, Ruggles, Smith, Tazewell, Van Buren, Van Dyke, and Williams. AMBROSE H. SEVIER. 7 [Special session of Senate, March, 1837.] AMBROSE H. SEVIER, Senator from Arkansas from December 5, 1836, to March 4, 1837, and from March 8, 1837, till he resigned, March 15, 1848. The State of Arkansas was admitted into the Union in June, 1886. In October, 1836, the legisla ture of that State elected Ambrose H. Sevier and William 8, Fulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr.Sevier was placed in the class of Senators whose term of service expired on the 3d of March, 1837. The legislature of Arkansas had no opportunity to fill the vacancy, not having been in session after the result of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 8d of March. At the special session of the Senate in March the credentials were referred to the Committee on the Judiciary. The committee reported that as the time when Mr. Sevier was to go out of office was decided by lot, and as the legislature, not being in session after this decision, could not supply the vacancy, it came “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,’ &c.”’; and reported a resolution that the oath required by the Constitution be administered to him, March 8 this resolution ae and Mr.Sevier took his seat. No debates on the adoption of the resolution are found. Under these credentials Mr. Sevier held the seat during the remainder of the special session March 8-10, during the first session ef the Twenty-fifth Congress, September 4 to October 16, and from December 4-13 of the second session, when he presented credentials of elec- fon (which had taken place November 7) for term ending March 8, 1843, and the oath was adminis- ered, The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Congressional Globe, 2d sess, 24th Cong., pages 1 and 209, and during the special session from the Senate Journal, 2d sess. 24th Cong., 1836~’37, within pages 358-867. No fulleraccount of the proceedings during the special session than that taken from the Senate Journal is found. MonpDAY, December 5, 1836. Mr. Benton presented the credentials of the Hon. A. H. Sevier and W.8. Fulton, Senators-elect from the State of Arkansas. The Vice-President administered the oath prescribed by the Constitution of the United States, and they took their seats. On motion by Mr. Benton, Resolved, That the Secretary put into the ballot-box three papers of equal size, num- bered 1, 2,3. Each of the Senators from the State of Arkansas draw out one paper. No. 1, if drawn, shall entitle the member to be placed in the class of Senators whose terms of service will expire the 3d day of March, 1837; No. 2 in the class whose terms will expire the 3d day of March, 1839; and No. 3 in the class whose terms will expire on the 3d day of March, 1841. In pursuance of the above order, Mr. Sevier drew from the ballot-box No. 1, and Mr. Fulton No. 3. Therefore Mr. Sevier’s term expires on the 3d of March, 1837, and Mr. Fulton’s on the 3d of March, 1841. Monpay, February 27, 1837. Mr. Fulton presented the credentials of the Hon. Ambrose H. Sevier, appointed a Senator by the governor of Arkansas to fill the vacancy that will occur on the 4th of March next, for the term of six years. Mr. Webster expressed his doubts as to the constitutionality of making an appoint- ment, no vacancy having occurred. Mr. Fulton remarked that he and his colleague were aware of this difficulty; but he (Mr. F.), supposing that it would be a matterfor the next Senate to act upon, presented the credentials under that impression. The Chair said thatit was not for the Senate to consider the qualifications of Senators elected to the next Congress. That Congress must act on this subject. Mr. Sevier said that he had very great doubt of the legality of the appointment, and did not at all doubt the patriotic motives which influenced the Senator from Massa- chusetts in expressing himself as he had done. Mr. S. carednothow the matter should be decided, one way or the other. Mr. Webster was sure that the honorable Senator was very indifferent as to how the question might be decided, and would give him credit as to his motives in intimating that there might: be some irregularity in the proceeding. Mr. Sevier expressed himself quite satisfied with the course pursued by the honorable Senator from Massachusetts. 8 SENATE ELECTION CASES. SaTuRDAY, March 4, 1837. The Hon. Ambrose H. Sevier, whose credentials were read the 27th February, 183%, appearing for the purpose of being qualified, On motion by Mr. King, of Alabama, Ordered, That the further consideration ot the same be postponed to Monday next. Monpay, March 6, 1837. The Senate resumed the consideration of the credentials of the Hon. Ambrose H. Sevier, and On motion by Mr: Fulton, Ordered, That they be referred to the Committee on the Judiciary. TursDAY, March 7, 1837. Mr. Grundy, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. Ambrose H. Sevier, submitted the following report: REPORT OF COMMITTEE. [The committee consisted of Messrs. Grundy (chairman), Crittenden, Morris, King of Georgia, and Wall.] . The Committee on the Judiciary, to whom was referred the credentials of the Hon. Ambrose H. Sevier, have had the same under consideration, and submit the following report: At thelast session of Congress the State of Arkansas was admitted into the Union, and the legislature of thatState, in the month of October, 1836, elected Ambrose H. Sevierand William S. Fulton Senators to represent the State in the Senate of the United States. lt also appears that upon the allotment of the said Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, the said Ambrose H. Sevier was placed in the class of Senators whose term of service expired on the 3d day of March, 1837, and that the legislature of Arkansas have had noopportunity of filling the vacancy, not having been in session since the fact that the vacancy would occur could have been known in that State. The governor of the State of Arkansas on the 17th day of January last commissioned the said Sevier as Senator to fill the vacancy which would take place on the 3d of March. Upon this state of the case the question is presented whether the said Ambrose H. Sevier is entitled to his seat under the appoint- ment made by the executive of the State of Arkansas? In looking into the practice of the Senate upon the subject of executive appointments, no case like the present has been found. Several cases have occurred in which the executives of different States in antic- ipation of the expiration of the regular term of service have appointed Senators (the leg- islatures not being in session), and in all of these cases the Senators thus appointed were admitted to their seats, until the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, pro- duced his credentials from the governor of Connecticut and the Senate decided he was not entitled to his seat by a vote of 23 to 18. This decision seems to have been generally acquiesced in since that time; nor is itin- tended 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 beingin 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 execu- we appointment of thé 17th of January, 1837, and therefore submit the following reso- ution: Resolwed, That the Hon. Ambrose H. Sevier, appointed a Senator by the governor of the State of Arkansas, have the oath required by the Constitution administered to him. The Senate proceeded to consider the resolution; and, On motion by Mr. King, of Georgia, Ordered, That it lie on the table, and that the report be printed. AMBROSE H. SEVIER. 9 WEDNESDAY, March 8, 1837. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the appointment of the Hon. Ambrose H. Sevier; and, On the question, ‘‘ Will the Senate agree to the resolution?’’ it was determined in the affirmative—yeas 26, nays 19. On motion by Mr. Grundy, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Allen, Benton, Brown, Buchanan, Clay- ton, Cuthbert, Fulton, Grundy, Hubbard, Linn, Lyon, Nicholas, Niles, Norvell, Pierce, Preston, Rives, Robinson, Ruggles, Smith of Connecticut, Tipton, Walker, Wall, White, Wright, and Young. Those who voted in the negative are Messrs. Bayard, Black, Clay, Crittenden, Davis, Kent, King of Alabama, King of Georgia, Knight» McKean, Morris, Mouton, Prentiss, Robbins, Smith of Indiana, Southard, Swift, Webster, and Williams. Whereupon the oath prescribed by law was administered to the Hon. Mr. Sevier, and he took his seat in the Senate. 10 SENATE ELECTION CASES. [Thirty-second Congress—Second session. ] ROBERT C. WINTHROP, Senator from Massachusetts from July 30, 1850, to February 7, 1851. Mr. Winthrop was appointed July 27, 1850, to fill a vacancy happening in the Senate by the resig- nation of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the legislature to fill the unexpired term. February 4, Mr. Rantoul not having appeared to take the seat, Mr. Winthrop offered a resolution, which was agreed to, ‘‘ that the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires.’”” The com- mittee reported that a person so appointed had a right to the seat until the legislature, at its next meeting, should elect a person to fill the unexpired term, and the person elected should accept, and his acceptance appear to the Senate; that presentation of credentials implied acceptance; that these views were sustained by precedents. The report was debated, but no action taken, the whole subject being laid on the table. Mr. Winthrop vacated the seat February 7, 1851, when Mr. Rantoul’s credentials were presented. 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. 31st. Cong., 1850-’51, with the report of the committee from Senate Reports, 2d sess. 3lst Cong., 1850-’51, No. 269. fas The debates on the case are found in the Congressional Globe, 2d sess, 81st Cong., vol. 23, within pages 425-478, special references to which are inserted below. TuEspAyY, February 4, 1851. Mr. Winthrop submitted the following resolution; which was considered by unanimous consent, and agreed to: ‘Resolved, That the Committee on the Judiciary inquire and report to the Senate, as early as practicable, ati what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires.”’ (Mr. Winthrop accompanied the introduction of the resolution by some remarks on the practice of the Senate in regard to the subject, expressing a desire in bis own case to hold his seat just so long as he was constitutionally entitled thereto and no longer. These remarks are found on pages 425, 426 of the Congressional Globe referred to. ] WEDNESDAY, February 5, 1851. Mr. Butler, from the Committee on the Judiciary, consisting of Messrs, Butler (chair- man), Berrien, Bradbury, Dayton, and Downs, who were instructed by a resolution of the Senate to inquire and report at what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires, submitted a report, which was ordered to be printed. ; REPORT OF COMMITTEE. In SENATE OF THE UNITED STATES. FEBRUARY 5, 1851.—Submitted, and ordered to be printed. Mr. Butler made the following report: The Committee on the Judiciary, to whom was referred a resolution directing said committee to inquire and report at what period the term of service of a Senator ap- pointed by the executive of a Staté during the recess of the legislature thereof right- fully expires, have had the same under consideration, and report: The question presented by the resolution turns mainly upon the construction of the clause of Article I, section 2, of the Constitution of the United States, which provides that “if vacancies happen, by resignation or otherwise, during the recess of the legisla- ture of atiy State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall fill such vacancies.’’ Your committee are of the opinion that the sitting member under executive appoint- ment has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a Senator during the next meeting thereof. To fill such vacancy it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such ac- ceptance should appear by the presentation to the Senate of the credentials of themem- ber-elect, or other official information of the fact—at which time the office of the sitting ROBERT C. WINTHROP. 11 ~ member terminates. When the member-elect is present and ready to qualify his ex- press acveptance is at once made known; and when his credentials are presented in his absence his acceptance may be fairly implied. These general views are sustained by precedents. An early one may be found in the Senate Journal of 1809, page 381, where the question was settled, after debate, by the adoption on the 6th of June of 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 leg- islature 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 on saeney by the appointment of a Senator, and this Senate be officially informed ereof. The precedent in this case has been uniformly followed from that time to the present in the many cases that have arisen involving the same question. [A list of precedents accompanying the report is found annexed to the report in the volume of Senate Reports referred to in the head-note. It is not printed here, asall the cases are included in the list of appointments on page 52 of this book. ] Fripay, February 7, 1851. Mr. Winthrop presented the credentials of the Hon. Robert Rantoul, jr., elected a Senator by the legislature of the Commonwealth of Massachusetts to fill the vacancy occasioned by the resignation of the Hon. Daniel Webster; which were read. [Mr. Winthrop stated that he presented the credentials ‘“‘ with the understanding that, agreeably to the recent report of the Judiciary Committee, the presentation of the credentials would imply an acceptance on the part of the Senator-elect, so far forth at least as to terminate the office of the sitting member.’”? These remarks are found on pages 459, 460 of the Congressional Globe referred to. ] Mr. Clay moved to take up the report of the committee with the view of deciding whether the retiring member is entitled to his seat.* ; Li oe on the report are found on page 460 of the Congressional Globe re- erred to. Mr. Davis, of Massachusetts, submitted the following resolution; which was considered by unanimous consent: “Resolved, That a Senator appointed by the executive of a State to fill a vacancy is entitled to hold his seat until the Senate is satisfied that a successor is elected and has accepted the office: Provided, Such election and acceptance take place during the session of the legislature held next after the vacancy occurs, and that such acceptance ought not to be inferred from the mere presentation to the Senate of the credentials of the newly- elected Senator.’’ [A debate on the question whether the right to a seat under executive appointment expires on the day of the meeting of the legislature or not until an election has taken place is found on pages 460-463. ] Mr. Rhett moved to amend the resolution of the gentleman from Massachusetts by striking out all after the word ‘‘resolved’’ and inserting the following: “That a Senator holding a seat by appointment of the executive of a State can only fill the same ‘until the next meeting of the legislature’ thereof, at which time it devolves upon the legislature of the State to fill the vacancy then existing.’’t [The debate on the same question is continued on pages 463-465 of the Congressional Globe referred to.] An amendment having been proposed by Mr. Rhett, on motion by Mr. Hale that the resolution lie on the table, it was determined in the negative—yeas 22, nays 25. On motion by Mr. Rhett, the yeas and nays being desired by one-fifth of the Senators resent. . Those who voted in the affirmative are Messrs. Benton, Bradbury, Butler, Chase, Davis of Mississippi, Dickinson, Douglas, Downs, Felch, Gwin, Hale, Hamlin, Hunter, Jones, King, Miller, Pearce, Phelps, Pratt, Sturgeon, Upham, and Wales. Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Clarke, Davis of Massachusetts, Dodge of Wisconsin, Dodge of Iowa, Foote, Greene, Man- gum, Mason, Morton, Norris, Rhett, Rusk, Smith, Soulé, Spruance, Turney, Underwood, Walker, Whitcomb, and Yulee. [The debate on the same subject is continued on pages 465-467 of the Congressional Globe referred to. ] * This motion is taken from the Congressional Globe. It does not appear in the Senate Journal. +This amendment is taken from the Congressional Globe. It does not appear in the Senate Jour- aal, 12 SENATE ELECTION CASES. SATURDAY, February 8, 1851. The Senate resumed the consideration of the resolution submitted yesteday by Mr. Davis, of Massachusetts, in relation to the duration of an appointment made by the execu- tive of a State to fill vacancies in the Senate, and after debate (which is found on pages 477, 478 of the Congressional Globe referred to), Mr. Baldwin proposed the following resolution as an amendment to the resolution sub- mitted by the Senator from Massachusetts: ‘Resolved, That a Senator appointed by the executive of a State in consequence of the happening of a vacancy during the recess of the legislature is entitled to hold his seat under the temporary appointment of the executive until such vacancy is filled by the legis- lature at the next session thereof, and the person appointed to fill the same shall appear and be qualified therefor, pursuant to the requirement of the Constitution.’ * [Remarks to the effect that nothing practical was before the Senate, Mr. Winthrop having vacated his seat and Mr. Rantoul not having appeared, are found on page 478 of the Congressional Globe referred to. ] On motion by Mr. Hale, Ordered, That it lie on the table. a resolution is taken from the Congressional Globe. It does not appear in the Senate Jour ARCHIBALD DIXON. 13 [Thirty-second Congress—Second session. ] ARCHIBALD DIXON, Senator from Kentucky from December 20, 1852, till March 3, 1355. December 15, 1851, Henry Clay addressed a letter to the general assembly of Kentucky resigning his seat in the Senate, ‘‘ to take effect on the first Monday of September, 1852.’? December 30, 1851, Archibald Dixon was elected by the legislature to fill that unexpired term. June 29, 1852, during the recess of the legislature, Henry Clay died. July 6, the governor appointed David Meriwether Senator ‘ until the time the resignation of Henry Clay takes effect.” Mr. Meriwether’s credentials were presented and he took his seat July 15, and held it until Congress adjourned August 31. Decem- ber 6, the Senate reassembled, Mr. Meriwether did not appear, and Mr. Dixon appeared and pre- sented his credentials. Objection was made to his taking the oath of office, on the ground that the seat belonged to Mr. Meriwether; that Mr. Meriwether had been appointed to filla vacancy happen- ing by the death of a Senator, and that he had a right to the seat until the next meeting of the legis- lature, and that it was notin the power of the governor to limit his term of office to the first Monday in September, 1852. The seat was vacant until December 20, when the Senate by a vote of 27 yeas to 16 nays resolved that Mr. Dixon had been duly elected ‘‘to fill the vacancy in the Senate occa- sioned by the resignation of the Hon. Henry Clay, and was entitled to a seat therein.” Thehistory of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journals, 1st and 2d sess. 32d Cong., 1851-52and 1852-53. There being no report of a committee in the case, an extract from the remarks of Mr. Rusk (page 93 of the Con- gressional Globe, vol. 26, 2d sess. 32d Cong., December 20, 1852) is given, which states briefly the main points under discussion by the Senate. Special references to each day’s debates on the subject, most of which are found within pages 1-96 of the Congressional Globe above referred to, are inserted below. [Extract from remarks of Thomas J. Rusk, of Texas, in Senate, December 20, 1852.] ‘The following facts make up the case: On the 17th of December, 1851, Henry Clay was a Senator from Kentucky, chosen by the legislature for six years, which would have expired on the 3d of March, 1855. Being so a Senator, he resigned by a communication to the legislature of Kentucky, declaring that it was to take effect on the first Monday in September, 1852. The legislature, then in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur from the first Monday in September, 1852, to the 3d day of March, 1855. The legislature then adjourned. On the 29th day of June, 1852, during the recess of the legislature of Kentucky, Mr. Clay died, and the governor of that State made a ‘temporary appointment’ of Mr. Meriwether as a Sena- tor from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meri- wether immediately took the vacant seat, and held it until Congress adjourned on the last day of August, 1852. On the 6th of December, 1852, the Senate reassembles, Mr. Meriwether does not appear, and Mr. Dixon appears and presents his credentials, and claims the vacant seat. “‘Manifestly, Mr. Dixon is one of two Senators ‘chosen by the legislature ’ of Kentucky ‘for six years,’ and he was chosen to fill a vacancy which has happened in the term of Mr. Clay. ““The whole question turns on the point, how did this vacancy happen? Mr. Clay re- signed, fixing the first Monday of September as the day when he should vacate his seat, and died, nevertheless, aSenator before that day arrived. Mr. Dixon was appointed by the legislature when in session, before not only the day which Mr. Clay’s resignation fixed for his retirement, but also before Mr. Clay’s death. ‘“We who maintain Mr. Dixon’s title insist that the vancancy happened by Mr. Clay’s resignation. On the contrary, those who deny Mr. Dixon’s title insist that the vacancy happened by Mr. Clay’s death. ‘Four questions arise: ‘First. Can a Senator resign ? “Second. Cana Senator resigning appoint a future day for his retirement from the Senate ? ‘‘Third. Can the proper appointing power receive such a resignation, and prospectively fill the vacancy ? ‘‘Fourth. If the legislature so prospectively fill the vacancy, can the appointment be defeated by the death of the resigning Senator before the arrival of the day fixed for his retirement from the Senate? “Tf a Senator can resign, and can so resign prospectively, and if the legislature can so fill the vacancy prospectively, and if their action cannot be defeated by the death of the resigning Senator, then Mr. Dixon’s title is good, valid, and complete. “The first question is expressly decided by the Constitution, which declares that va- cancies may ‘ happen by resignation.’ ‘‘The second question is decided by an unbroken succession of precedents from the 14 SENATE ELECTION CASES. foundation of the Government. Mr. Bledsoe so resigned, fixing a future day; so did Mr. Clay in 1842; so did Mr. Berrien in 1852; and so did Mr. Foote in 1852. “The third question is answered with equal distinctness by precedents. The legis- lature of Kentucky prospectively filled the vacancy made by Mr. Clay’s resignation in 1842; the governor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852; and the governor or legislature of Mississippi prospectively filled the vacancy of Mr. Foote in 1852. “The only question remaining is the fourth: Can the death of the resigning Senator after the legislature has prospectively filled the vacancy, and before the day fixed for his retirement, defeat the appointment of his successor already made?”’ [Transcript of proceedings from the Journals.] THURSDAY, July 15, 1852. Mr. Bright presented the credentials of the Hon. David Meriwether, appointed a Sen- ator by the executive of the State of Kentucky until the first Monday in September next, to fill the vacancy occasioned by the death of the Hon. Henry Clay; which were read, and the oath prescribed by law having been administered to Mr. Meriwether, he took his seat in the Senate. [A debate on the question whether Mr. Meriwether’s credentials should be referred to a committee on account of the irregularity they contained of limiting the term of service to the first Monday in September is found on pages 1783, 1784 of the Congressional Globe, vol. 24, part 3, Ist sess. 32d Cong., 1851-’52. ] Monpay, December 6, 1852. Mr. Jones, of Tennessee, presented the credentials of the Hon. Archibald Dixon, chosen a Senator by the legislature of the Commonwealth of Kentucky, to serve for the unexpired term rendered vacant by the resignation of the Hon. Henry Clay, to take effect from the first Monday of September, 1852, until the end of the term for which said Henry Clay was elected; which were read. An objection being made by Mr. Gwin to administering the oath prescribed by law to the Hon. Mr. Dixon, a debate ensued, and the following resolution was submitted by Mr. Gwin: ‘‘Pesolved, That the credentials of Archibald Dixon, esq., be referred to a select com- mittee of five, to consider and report thereon.’’ And Mr. Mangum having proposed the following amendment: Insert at the end of the resolution, ‘‘ and that the said Archibald Dixon be now qualified and permitted to take his seat in the Senate, and occupy the same pending the action of the said commit- tee, By unanimous consent the proceeding thereon was suspended. * * ¥ * * * * The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, and, after farther debate, on motion, and by unanimous consent, the proceeding thereon was suspended for the purpose of receiving a report of a committee. * * * x * * * The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin. [The debates of this day on the subject are found on pages 1-5 of the volume of the Congressional Globe referred to in the head-note. They include a discussion of the prima facie right of Mr. Dixon to the seat pending the action of the Senate. ] TUESDAY, December 7, 1852. The Senate resumed the consideration of the credentials, &c. [The debate is found on pages 12-19 of the Globe. ] - WEDNESDAY, December 8, 1852. The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin, and, On motion by Mr. Badger, Ordered, That the further consideration thereof be postponed to Monday next. MonpDay, December 13, 1852. The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon with the resolution submitted by Mr. Gwin. : On motion by Mr. Hunter, and by unanimous consent, Ordered, That, until the question thereon be decided, the name of Mr. Meriwether be omitted in any call of the yeas and nays. ARCHIBALD DIXON. 15 Mr. Mangum withdrew the amendment which he offered, and Mr. Jones, of Tennessee, offered the following as an amendment to the proposition of Mr. Gwin, to strike out all after the word ‘‘resolved,’’ and insert: ‘‘ That the Hon. Archibald Dixon was duly elected by the legislature of the State of Kentucky to fill the vacancy in the Senate occasioned by the resignation of the Hon. Henry Clay, and is entitled toa seat therein.” * [The debate is found on pages 43-47 of the Globe. ] WEDNESDAY, December 15, 1852. The Senate resumed the consideration of the credentials, &c. [The debate is found on pages 58-62 of the Globe. ] THURSDAY, December 16, 1852. The Senate resumed the consideration of the credentials, &e. [The debate is found on pages 69-76 of the Globe. ] MonpbAay, December 20, 1852. The Senate resumed consideration of the credentials of the Hon. Archibald Dixon, with the resolution submitted by Mr. Gwin. On motion by Mr. Jones, of Tennessee, to amend the resolution by striking out, after the word ‘‘resolved,’’ ‘‘that the credentials of Archibald Dixon, esq., be referred to the Committee on the Judiciary, who shall consider and report thereon;’’ and, in lieu thereof, inserting, ‘‘that the Hon. Archibald Dixon was duly elected by the legislature of the State of Kentucky to fill the vacancy in the Senate occasioned by the resignation of the Hon. Henry Clay, and is entitled to a seat Bhenelay” it was determined in the affirma- tive—yeas 27, nays 16. On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Adams, Atchison, Badger, Bell, Brooke, Butler, Chase, Clarke, Cooper, Davis, Dawson, Dodge of Iowa, Fish, Geyer, Hale, Jones of Tennessee, Miller, Morton, Pearce, Rusk, Seward, Smith, Spruance, Sumner, Under- wood, Upham, and Wade. Those who voted in the negative are Messrs. Bayard, Borland, Bradbury, Bright, Cass, Cathcart, De Saussure, Dodge of Wisconsin, Douglas, Downs, Felch, Gwin, Mason, Norris, Toucey, and Weller. So the proposed amendment was agreed to. On the question to agree to the resolution as amended, it passed in the affirmative; and the oath prescribed by law was administered to Mr. Dixon, and he took his seat in the Senate. [The debate is found on pages 90-96 of the Globe. ] COMPENSATION OF MR. MERIWETHER. TUESDAY, December 21, 1852. Mr. Rusk submitted the following resolution; which was read: “ Resolved, That the Hon. David Meriwether, late a member of the Senate from the State of Kentucky, be paid his mileage and per diem up to the 20th day of December inclu- sive.”’ [Some remarks in favor of the adoption of the resolution are found on page 105 of the Congressional Globe referred to in the head-note. ] WEDNESDAY, January 5, 1853. The resolution submitted by Mr. Rusk the 21st of December last, to pay the Hon. Mr. Meriwether his per diem and mileage, was read the second time, and considered as in Committee of the Whole; and, no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read a third time, by unanimous consent. Resolved, That it pass. [Remarks on the adoption of the resolution are found on pages 220-221 of the Congres- sional Globe referred to in the head-note. ] * This amendment is taken from the Globe. It does not appear in the Senate Journal. 16 SENATE ELECTION CASES, Thirty-third Congress—First session. SAMUEL 8S. PHELPS, Senator from Vermont from March 4, 1839, to March 3, 1851, and from January 19, 1853, to March 17, 1854. Mr. Phelps was appointed by the governor of Vermont J: igi tects 17, 1853, during the recess of the legislature, to fill a vacancy in the Senate beppanits by the deat. of William Upham. His creden- tials were presentud and he took his seat January 19. Tue legislature met in October and adjourned in December without electing a Senator to fill the unexpired term. Mr. Phelps had held the seat during the remainder of the second session of the Thirty-second Congress, ending March 3, and daring the special session of the Senate March 4 to April 11., December 29 he again attended. Jan- uary 4, 1854, the Senate resolved that the Committee on the Judiciary inquire whether he was enti- titled to retain his seat. January 16 the committee reported the resolution, ‘‘that the Hon. Samuel S. Phelps is entitled to his seat in the Senate of the United States.” It was accompanied by a minor. - ity report adverse to the right of Mr. Phelps to a seat. March 16 the resolution reported by the com- mittee was rejected by a vote of 12 yeas to 26 nays, and it was ‘‘ Resolved, That the Hon. Samuel S. Phelps is not entitled to retain his seat in the Senate of the United States.” The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 1st sess. 33d Cong., 1853-’54, together with the report of the committee (majority and minority), from Senate Reports, Ist sess. 33d Cong., vol. 1, 1853-’54, Report No. 34. The debates in the case, which are extended, are found in the Congressional Globe, vol. 28, part 1, Ist sess. 33d Cong., and in the Appendix to the Congressional Globe, vol. 29, 1st sess., 32d Cong. Special references to the debates of each day are inserted below. WEDNESDAY, January 19, 1853. Mr. Foot presented the credentials of the Hon. Samuel S, Phelps, appointed a Sen- ator by the governor of the State of Vermont to fill the vacancy occasioned by the death of the Hon. William Upham; which were-read. The oath prescribed by law was administered to Mr. Phelps, and he took his seat in the Senate. TUESDAY, January 3, 1854, Mr. Seward submitted the following resolution for consideration: ‘‘Whereas the Hon. Samuel 8. Phelps was appointed by his excellency the gov- ernor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. Will- iam Upham, a Senator whose term of six years would have continued until the 4th of March, 1855; and ‘Whereas it is understood that since that temporary appointment was made the legislature of Vermont has been convened at their annual session and has adjourned without filling such vacancy: Therefore, 3 ; “ Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel 8. Phelps is entitled to retain a seat in the Senate of the United States.” [Mr. Seward accompanied the introduction of the resolution by a statement of the facts in the case, which statement is found on page 103 of the Congressional Globe referred to in the head-note. ] WEDNESDAY, January 4, 1854. The Senate proceeded to consider the resolution submitted by Mr. Seward respect- ing the right of the Hon. Samuel S. Phelps to a seat in the Senate, and the resolu- tion was agreed to. [A short debate is found on pages 115-117 of the Globe.] Monpay, January 16, 1854. Mr. Pettit, from the Committee on the Judiciary, who were instructed by a reso- lution of the Senate “to inquire whether the Hon. Samuel S. Phelps is entitled to retain a seat in the Senate of the United States,” submitted a report (No. 34), also the views of the minority of the committee, in relation to the subject; which were ordered to be printed. The Senate proceeded to consider the said report, and, On motion by Mr. Pettit, Ordered, That the further consideration thereof be postponed to, and made the order of the day for, Wednesday next. SAMUEL S. PHELPS. 17 REPORT OF COMMITTEE. . [The committee consisted of Messrs. Butler (chairman), Tuucey, Bayard, Geyer, Pettit, and Toombs. ] IN THE SENATE OF THE UNITED STATES. JANUARY 16, 1854.—Ordered to be printed. Mr. Pettit made the following report; which was considered, postponed to, and made the special order for the day for, Wednesday next, January 18, 1854: The Committee on the Judiciary, to whom was referred a resolution of the-Senate of the 4th of January, 1854, have had the same under consideration, and have directed me to make the following report: The following is the resolution referred to the committee, to wit: ‘Whereas the Hon. Samuel S. Phelps was appointed by his excellency the governor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. William Upham, a es a whose term of six years would have continued until the 4th of March, 1855; an ‘‘ Whereas it is understood that since that temporary appointment was made the legis- lature of Vermont has been convened at their regular session, and has adjourned without filling such vacancy: Therefore, ‘Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel 8. Phelps is entitled to retain a seat in the Senate of the United States.” The clauses of the Constitution which bear upon this question may be found in the third section of the first article of that instrument, and read as follows: : ‘‘The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. ‘‘Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; 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 do not think that the last clause of Article V.of the Constitution, which provides ‘‘that no State, without its consent, shall be deprived of its equal suf- frage in the Senate,’’ has any bearing on thisquestion. Ifa 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 legisla- ture 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 ap- pointments 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 expira- S. Doc. 11 2 18 SENATE ELECTION CASES. tion of the Senatorial term. In giving this exposition to this provision of the Conatitu- tion, the committee believes it has consulted and gives effect to the spirit of that instru- ment, 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 a vacancy by the appointment of a Senator, and this Senate be officially informed ereof.”’ 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 in- stances (and they are numerous) the Senator appointed by the executive has not only held his office until the next meeting of the legislature, but wntil his successor was ap- pointed and made his appearance here to qualify. In the late cases of Mr. Winthrop and Mr. Rantoul, of Massachusetts, and of Mr. Meriwether 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 think 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 war- tants the interpretation we have given it, your committee have come to the conclusion that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the fol- lowing resolution: Resolved, That the Hon. Samuel §. 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 res- olution was founded are as follows: That the Hon. Samuel 8. 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 Up- ham, 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 legis- lature 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 legis- lature 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 gov- ernor of a State in the recess of its legislature where the legislature has met and failed to fill the vacancy by anelection? 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 legisla- ture at its next meeting, then it would follow that the appointing power of the execu- tive would be exhausted; and the Senator appointed by him could, according to prece- dent, hold his seat only during the session of the legislature; or, in other words, his commission would expire at the adjournment of the legislature, SAMUEL S. PHELPS. 19 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 prece- dents which are applicable to the question under consideration. The first case upon record is as follows: George Read, a Senator from the State of Dela- * ware, resigned his seat upon the 18th day of September, 1793, aud during the recess of the legislature of said State. The legislature of the said State met in January, and ad- journed in February, 1794. Upon the 19th day of March, and subsequent to the adjourn- ment 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 8d 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 Presi- dent 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 the 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 legisla- ture, which will take place on the 5th day of June next, he submits tothe determina- tion of the Senate the question whether an appointment under the executive of Mary- land 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 filla 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 ot'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 second session of the Thirty- first Congress, to whom was referred the resolution of the Senate directing said committee to inquire and report at what period the term of service of a Senator appointed by the executive of a State, during the recess of the legislature thereof, rightfully expires, sub- mitted the following report: “The question presented by the resolution turns mainly upon the construction of the clause of Article X VIIL., section 2, of the Constitution of the United States, which provides that ‘if vacancies happen by resignation or otherwise, during the recess of the legisla- ture of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall fill such vacancies.’ ’’ Your committee are of the opinion that the sitting member, under executive appoint- ment, has a right to occupy his seat until the vacancy shall be filled by the legislature of the State of which he is a Senator, during the next meeting thereof. To fill such vacancy it is not only necessary to make an election, but that the person elected shall accept the appointment. And your committee are further of the opinion that such ac- ceptance should appear by the presentation to the Senate of the credentials of the mem- ber-elect, or other official information of the fact, at which time the office of the sitting member terminates. When the member-elect is present and ready to qualify, his express acceptance is at once made known; and when his credentials are presented in his absence his acceptance may be fairly implied. Perhaps it would have been as well if the strict and literal meaning of the words, ‘until the next meeting of the legislature,’’ had been observed on the first occasion in which their construction was brought in question; that would have had the merit of 20 SENATE ELECTION CASES. certainty, but a certainty that might have been too severe for the true and liberal in tendment of the framers of the Constitution. They certainly’ did mean to say that an executive appointment should terminate when legislative jurisdiction shall commence or be exercised. To give this severe construction to the words quoted would in all cases leave a State unrepresented for a time, that depending on legislative action; rather than lead to that result the Senate, under the precedents quoted, seem to have regarded the “next meeting of the legislature’? as synonymous with the next session of the legislature, during which time the member under executive appointment might hold his seat, unless it should be filled by an election before the termination of a session; and this was prob- ably in analogy to that provision of the Federal Constitution by which power is vested in the President ‘‘ to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.’’ As there was no reference to a committee, and no reported debate in the case of Mr. Smith, of Maryland, which made the precedent, the essential reasons which governed the judgment of the Senate are not given; the case, however, seems to have been well considered. There are two considerations which seem to have entered into that judg- ment: First, that the State legislature, after their meeting, should have an opportunity of consultation in making a choice of Senator, and the State, during such term of consulta- tion, should not be deprived of a representative in the Senate. The utmost limit con- templated for the exercise of this legislative jurisdiction was the term of the sitting of the legislature. The second consideration was a confident assumption that the office would be filled during such term. The idea that a session would pass over without an election was not in the mind of the Senate. The Senate went very far when it gave an interpretation to the words referred to beyond their literal meaning, limiting the tenure of office of the sitting member to the day of the meeting of the legislature. This met with a decided opposition from a respectable minority, and in subsequent cases distin- guished Senators maintained the same view of the Constitution. By the report of the com- mittee we are required to recognize as authority and to enlarge this liberality of con- struction—to say that the words ‘‘until the next meeting of the legislature’? may be construed to mean not only until and during the session of the next legislature, but beyond the next meeting of the legislature; in other terms, that until the next meeting, &c., may operate under the authority of precedent to give the sitting member a right to hold his seat beyond the meeting of the legislature. We cannot agree that by the au- thority of any precedent these words ‘‘until and beyond”’ shall have such a meaning as will control the import of the Constitution, both in its spirit and letter. The Senate of the United States is composed of organized constituencies, the State legislatures; to them belong the power primarily of electing their Senators, when they are in session, at the happening of the vacancy, and at their first meeting when it happens in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. Their right and authority to fill or supply vacancies which have been temporarily filled by executive appointment areas absolute and exclusive as was their power in an original election. When their power is brought into existence it must supersede all others, with this qualification, and that according to precedent, that they have a session to make the choice. In our view it does not depend on the actual exertion of the power to elect, but on its existence. A Senator, under an executive appointment, may or may not rep- resent the political views of his State; he may be the mere personal favorite of the gov- ernor. The Senate, as far as practicable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union. In nothing that is said here would we have it inferred that we regard the sitting mem- ber whose case is before us as one who may not claim his seat on high grounds and re- spectable authority. The sanction of a majority of the committee, the opinions of emi- nent jurists out of this body, go far to sustain his claim. But from the views of the undersigned above presented we do not think the Hon. Samuel S. Phelps is entitled to hold his seat in this body. A. P. BUTLER. J. A. BAYARD. WEDNESDAY January 18, 1854. The Senate resumed the consideration of the report of the Committee on the Judiciary on the right of the Hon. 8. S. Phelps to a seat in the Senate; and, On motion of Mr. Pettit, Ordered, That the further consideration thereof be postponed until Wednesday next. [Some remarks on the postponement of the resolution on account of sickness of Mr. peers are found on pages 196, 197 of the Congressional Globe referred to in the head note. SAMUEL 8. PHELPS. 21 THURSDAY, January 26, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary respecting the right of the Hon. SamuelS. Phelps to a seat in the Senate; and, After debate, On motion by Mr. Butler, Ordered, That it lie on the table. [The debate on the subject on this day is found on pages 250-252 of the Globe referred to. It includes remarks by Mr. Pettit, stating the position of the committee. ] WEDNESDAY, February 1, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the right of the Hon. Samuel S. Phelps to a seat in the Sen- ate; and, After debate, On motion by Mr. Butler, the Senate adjourned. [The debate is found on pages 303, 304 of the Globe referred to. Mr. Bayard’s speech on this day against the resolution reported by the majority of the committee is reported in the Appendix to the Congressional Globe referred to in the head-note. ] THURSDAY, February 2, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in relation to the right of the Hon. Samuel 8. Phelps to a seat in the Sen- ate; and, After debate, On motion by Mr. Pratt, Ordered, That the further consideration thereof be postponed until Thursday next, the 9th instant. [The debate is found on pages 314-318 of the Congressional Globe referred to. It in- cludes remarks by Mr. Butler, stating the position of the minority of the committee. A speech made by Mr. Phelps on this day in vindication of his title to the seat is found on pages 356-359 of the Appendix to the Congressional Globe referred to. ] i WEDNESDAY, March 8, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, On motion by Mr. Foot, Ordered, That the further consideration thereof be postponed until to-morrow. [The debate, consisting largely of remarks by Mr. Phelps, is found on pages 359-365 of the Appendix to the Congressional Globe referred to. ] MonpDay, March 13, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel 8. Phelps to a seat in the Senate; and, After debate, On motion, Ordered, That the further consideration thereof be postponed until to-morrow. [The debate is found on page 610 of the Congressional Globe. Mr. Phelps’s remarks are on pages 365-369 of the Appendix, and Mr. Badger’s reply to a portion of Mr. Phelps’s argument is on pages 369-371 of the Appendix. ] WEDNESDAY, March 15, 1854. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, On motion by Mr. Mason, Ordered, That the further consideration thereof be postponed until to-morrow. [A speech by Mr. Foot, in vindication of the right of his colleague to the seat, which was the only speech made on the subject this day, is found on pages 630-632 of the Congressional Globe. } THURSDAY, March 16, 1854. The Senate resumed the consideration of the resolution reported by the Committee on _ the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, After debate, on the question of agreeing thereto, it was determined in the negative— yeas 12, nays 26. 22 SENATE ELECTION CASES. On motion by Mr. Foot, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Clayton, Dodge of Iowa, Everett, Fes- senden, Foot, Geyer, Morton, Norris, Sebastian, Wade, Walker, and Williams. Those who voted in the negative are Messrs. Adams, Allen, Atchison, Badger, Bayard, Brodhead, Brown, Butler, Clay, Dodge of Wisconsin, Douglas, Evans, Fish, Fitzpatrick, Hamlin, Hunter, Mason, Pearce, Pratt, Rusk, Seward, Shields, Slidell, Stuart, Sumner, and Toucey. So the resolution was not agreed to; and it was Resolved, That the Hon. Samuel 8. Phelps is not entitled to retain his seat in the Sen- ate of the United States. COMPENSATION OF MR. PHELPS. Mr. Badger submitted the following resolution; which was read the first and second times, by unanimous consent, and considered as in Committee of the Whole: “* Resolved, That there be paid out of the contingent fund of the Senate, to the Hon. Samuel S. Phelps, a sum equal to the amount of mileage and per diem compensation of a Senator from the day of his attendance at the present session to this day, inclu- sive.”’ And no amendment being made, it was reported to the Senate. The resolution was read the third time by unanimous consent. Resolved, That it pass. [The debate is found on pages 639-646 of the Congressional Globe. ] FRIDAY, March 17, 1854. On motion by Mr. Foot, the vote on passing the resolution, submitted yesterday by Mr. Badger, to pay to the Hon. Samuel S. Phelps his mileage and per diem, was recon- sidered. The Senate resumed the consideration of the said resolution; and, having been amended on the motion of Mr. Foot, it was agreed to, as follows: “* Resolved, That there be paid to the Hon. Samuel S. Phelps the amount of mileage and per diem compensation of a Senator from the day of his attendance at the present session to this day, inclusive.”’ [Brief remarks are found on page 676 of the Congressional Globe. ] JARED W. WILLIAMS. 23 [Thirty-third Congress—First session. ] JARED W. WILLIAMS, Senator from New Hampshire from December 12, 1853, to August 4, 1854. Mr. Williams was appointed to fill 2 vacancy happening by the death of Charles G. Atherton. After his appointment the legislature met and adjourned without electing a Senator to fill the un- expired term. The circumstances of the meeting and adjournment of the legislature were as fol- lows: The constitution of New Hampshire provided that ‘‘the senate and house shall assemble every year on the first Wednesday of June, and at such other timesas they may judge necessary ; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June.” It further provided (article 50, part 2) that ‘‘ the governor, with advice of council, shall havefull power and authority during the sessions of the general court to adjourn or prorogue it to any time the two houses may desire, and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the State should require the same.” July 15, 1854, the governor, in a communication to the legislature, said: ‘‘Having been informed by a joint committee of both branches of the legislature that you have finished the business before you, and are ready to ad- journ, by the authority vested in me, I do hereby adjourn the legislature to the last Wednesday of y next.” The Judiciary Committee of the United States Senate reported that this was an ad- journment ‘sine die, in the legal import of the term,” and that ‘the right of representation under appointment” had expired. Mr. Williams claimed that even if this were so, he was entitled to his seat, notwithstanding precedents to the contrary; but claimed further that this was an adjourn- ment to a day certain, and not an adjournment sine die. The Senate concurred in the report of the committee, and ‘ Resolved, Thatthe ‘right of representation under appointment’ had expired.” The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, lst sess. 33d Cong. , 1853-54, together with the report of the committee from Senate Reports, Ist sess. 33d Cong., vol. 2, 1853-’54, No. 385. The debate in the case, which is brief, is found on pages 2208-2211 of the Congressional Globe, vol. 28, part 3, Ist sess. 33d Cong. MonpAy, December 12, 1853. Mr. Weller presented the credentials of the Hon. Jared W. Williams, appointed a Sena- tor by the executive of the State of New Hampshire to fill the vacancy occasioned by the death of the Hon. Charles G. Atherton, which were read; and the oath prescribed by law having been administered to Mr. Williams, he took his seat in the Senate. TUESDAY, July 25, 1854. Mr. Mallory submitted the following resolution; which was considered by unanimous consent, and agreed to: ‘* Whereas the Hon. Jared W. Williams was appointed by his excellency the governor of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the Senate of the United States which had happened by the death of the Hon. Charles G. Atherton, a Senator, whose term of service would have continued until the 4th of March, 1859; and ‘* Whereas it is understood that since that temporary appointment was made the legislature of New Hampshire has been convened at their regular session and has ad- journed to the last Wednesday of May next without filling such vacancy, and that said State still claims a right of representation under said appointment,.which the appointee is not at liberty to surrender by his act without the action of the Senate: At his re- quest, therefore, : “Resolved, That the subject be referred to the Committee on the Judiciary to inquire into the facts connected with it and to make such report as they deem proper to enable the Senate to determine whether the right of representation under said appointment has expired.’’ WEDNESDAY, August 2, 1854. Mr. Butler, from the Committee on the Judiciary, who were directed by a resolution of the Senate to inquire into and report on the right of the Hon. Jared W. Williams, appointed a Senator by the governor of New Hampshire, to continue to hold his seat under that appointment, submitted a report (No. 385) thereon; which was ordered to be printed. REPORT OF COMMITTEE. [The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Pet- tit, and Toombs. J In Tot SENATE OF THE UNITED STATES. AvG@usT 2, 1854.—Ordered to be printed. Mr. Butler made the following report: The Committee on the Judiciary, to whom was referred the following preamble and resolution of the Senate, have had the same under consideration, and report: ‘© Whereas the Hon. Jared W. Williams was appointed by his excellency the governor 24 SENATE ELECTION CASES. of New Hampshire, in the recess of the legislature of that State, to fill u vacancy in the Senate of the United States which had happened by the deathof the Hon. CharlesG. Ath- erton, a Senator, whose term of service would have continued till the 4th of March, 1859; and : “Whereas it is understood that since that temporary appointment was made the leg- islature of New Hampshire has been convened at their regular session, and has adjourned to the last Wednesday of May next, without fillingsuch vacancy, and that said State still claims a right of representation under said appointment, which the appointee is not at liberty to surrender by his act without the action of the Senate: At his request, there- fore, ‘* Resolved, That the subject be referred to the Committee on the Judiciary, to inquire into the facts connected with it, and to make such report as they deem proper to enable the Senate to determine whether the right of representation under said appointment has expired.’’ Under this resolution the committee are required to inquire into the facts connected with the case, and to make such report as they deem proper, to enable the Senate to determine whether the right of representation under said appointment had expired. As the question to be determined must depend in a great measure on the proceedings of the legislature and constitution of New Hampshire, the committee submit the follow- ing as a part of their report, having a bearing on the case: COMMUNICATION FROM THE GOVERNOR TO THE LEGISLATURE. To the senate and house of representatives : I have signed all the bills and resolutions which you have passed the present session and presented for my approval (except the bills and resolutions which I have returned to the house of representatives with my objection thereto), and having been informed by a joint committee of both branches of the legislature that you have finished the busi- ness before you and are ready to adjourn, by the authority vested in meI do hereby ad- journ the legislature to the last Wednesday of May next. N. B. BAKER. CoUNCIL CHAMBER, July 15, 1854. ‘The senate and house shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary; and shall dissolve and be dissolved seven days next preceding the said first Wednesday of June, and shall be styled the gen- eral court of New Hampshire.’’—Constitution of New Hampshire, page 23. From the language of the governor’s communication to the legislature it seems to have been his judgment that the session had closed; and from the language of the constitution it would appear that it will have terminated on the day mentioned, as by another pro- vision of the constitution the governor on the same day is required to dissolve the legis- lature. In this view of the subject in proprio vigore, the legislature had no power of as- sembling from the time of its adjournment, as announced by the governor, until the last Wednesday of May next, when its existence terminated. There was a power in the governor, should the general welfare require it, to call the legislature together as an existing body. But when so called together what would have been the character of such a meeting? Would it not have been a distinct session, car- rying with its acts and doings all the incidents of a separate session? Such would seem to be a fair inference. This being conceded, then it would follow that the late legisla- ture did adjourn sine die in the legal import of the term. If this is a legitimate conclu- sion this case cannot in any particular be distinguished from that decided by the Senate in the case of the Hon. Samuel S. Phelps, a Senator from Vermont, and the committee refer to that case as the authority for their conclusion in the case under consideration. In response to the resolution the committee are of opinion that ‘‘the right of repre- sentation under the appointment ’’ has expired. THURSDAY, August 3, 1854. The Senate proceeded to consider the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams, appointed a Senator by the governor of the State of ew Hampshire, to continue to hold his seat in the Senate under that appointment; an ‘After debate, in concurrence therewith, Resolved, That “‘ the right of representation under appointment” had expired. [No debate of any importance is recorded in the Congressional Globe. ] JARED W. WILLIAMS. 25 FRIDAY, August 4, 1854, On motion by Mr. Dodge, of Iowa, to reconsider the vote agreeing to the report of the Committee on the Judiciary on the right of the Hon. Jared W. Williams to hold his seat in the Senate, under his present appointment, as a Senator from New Hampshire, it was determined in the affirmative—yeas 19, nays 16. On motion by Mr. Dodge, of Iowa, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Atchison, Bayard, Bell, Brodhead, Butler, Chase, Dawson, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Fitzpat- rick, Houston, Johnson, Jones of Jowa, Mallory, Mason, Norris, and Weller. Those who voted in the negative are Messrs. Allen, Benjamin, Bright, Cooper, Fish, Gillette, Hunter, James, Jones of Tennessee, Pratt, Rockwell, Seward, Stuart, Thomp- son of Kentucky, Toombs, and Wade. ’ So the Senate proceeded to consider the said report. On motion by Mr. Cass that the further consideration of the report be postponed until the first Monday in December next, it was determined in the negative—yeas 11, nays 37. On motion by Mr. Atchison, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Atchison, Dodge of Wisconsin, Dodge . bila, Douglas, Houston, Johnson, Jones of Iowa, Mallory, Pettit, Sebastian, and ‘combs. Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, eee Brod- head, Brown, Butler, Cass, Chase, Clay, Cooper, Dawson, Evans, Fessenden, Fish, Foot, Geyer, Gillette, Hunter, James, Jones of Tennessee, Mason, Morton, Pearce, Pratt, Rockwell, Rusk, Seward, Slidell, Stuart, Sumner, Thompson of Kentucky, Thomson of New Jersey, Toucey, Wade, Walker, and Weller. After debate, in concurrence with the report, it was Resolved, That ‘‘ the right of representation under the appointment ”’ had expired. [It appears from the debate referred to in the head-note that the vote was reconsidered in order to allow Mr. Williams, who had been absent when the subject was first con- sidered, to adress the Senate. ] 26 SENATE ELECTION CASES. [Forty-sixth Congress—First session. ] CHARLES H. BELL, Senator from New Hampshire from April 10, 1879, till June 20, 1879. March 18, 1879, the credentials of Mr. Bell, appointed by the governor to fill a vacancy happening during the recess of the legislature, by the expiration of the term of Bainbridge Wadleigh, March 8, were presented. March 19,the credentials were referred to the Committee on Privileges and Elections. April 2, 1879, the committee reported that by reason of a change in the State constitu- tion in 1878, two legislatures were chosen in that year, one, under the old constitution, in March, whose term of office began in June, 1878, and would terminate in May, 1879, and the other, under the new constitution, chosen in November to serve for two years, whose term would begin in June, 1879; that in the Forty-fifth Congress this committee had reported to the Senate that the last-named legislature was the one entitled to elect under the act of July 25, 1866; that the vacancy arising under these circumstances was not a vacancy “happening by resignation or otherwise during the recess of the legislature of any State” (Article I, section 3, of the Constitution); that until the year 1817 persons appointed to fill vacancies arising from the expiration of terms of service had been admitted to seats; but that in 1825, in the Lanman case (see page 5), ‘‘ it was held, and,in the opin- ion of this committee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term’; that this decision had been regarded by the Senate as final; that the case of Mr. Sevier (see page 7), in which it was claimed that the Senate had departed from the rule in Lanman’s case, was in all material points dif- ferent from the one under consideration, in that ‘‘the time when Mr. Sevier was to go out of office under his election was decided by lot.”” The committee recommended the adoption of a resolution that Mr. Bell was not entitled to the seat. A minority report held that there was no historical evi- dence to show whether the Lanman case decided that a governor could not fill a vacancy happen- ing at the beginning of a term, or only that a governor could not lawfully make an appointment in anticipation before the vacancy had occurred; that the report in the Sevier case stated that the Lanman case proceeded upon the former ground; but that, with the exception of that statement, there is no indication that the Senate ever doubted the correctness of the construction of the Con- stitution that in a case where a Senator has been appointed by the executive after the happening of a vacancy by the expiration of the term without an election of a successor by the legislature, the person so appointed is entitled to the seat. April 10, the resolution reported by the committee jas amended by striking out the word ‘‘not,” and the Senate resolved that Mr. Bell was entitled e seat. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journal, 46th Cong., Ist sess.,and the report of the committee from Senate Reports, 46th Cong., Ist sess., No. 1. Special references to the debates of each day, which are found in the Congressional Record, vol. ix, part 1, are inserted below. TUESDAY, March 18, 1879. The Vice-President laid before the Senate the credentials of Charles H. Bell, appointed a Senator by the governor of the State of New Hampshire to fill the vacancy happening in the Senate of the United States by the expiration of the term of Bainbridge Wadleigh on March 3, 1879, during the recess of the legislature of said State; which were read. On motion by Mr. Wallace, Ordered, That the credentials lie on the table. [The debate is found on pages 2, 3 of the Congressional Record referred to in the head-note. In the remarks of Mr. Bell will be found a list of precedents. ] WEDNESDAY, March 19, 1879. On motion by Mr. Wallace, _ Ordered, That the credentials of Charles H. Bell be referred to the Committee on Priv- ileges and Elections with instructions to report at as early a day as practicable. WEDNESDAY, April 2, 1879. Mr. Saulsbury, from the Committee on Privileges and Elections, to whom were referred the credentials of Charles H. Bell, appointed a Senator by the governor of the State of ir Hampshire, submitted a report (No. 1) thereon accompanied by the following res- olution: “ Resolwed, That Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire.’’ Mr. Hoar obtained leave to submit the views of a minority of the Committee on Priv- ileges and Elections upon the credentials of Charles H. Bell; which were ordered to be printed to accompany the foregoing report. CHARLES H. BELL. 27 BEPORT OF COMMITTEE. [The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, Kernan, Bailey, Houston, Vance, Cameron of Wisconsin, Hoar, and Ingalls. } IN THE SENATE OF THE UNITED STATES. APRIL 2, 1879.—Ordered to lie on the table and be printed. Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the follow- ing report: | The Committee on Privileges and Elections, to whom were referred the credentials of the Hon. Charles H. Bell, claiming a seat in the Senate as a Senator from the State of New Hampshire, have had the same under consideration, and ask leave to make the fol- lowing report: The term of Bainbridge Wadleigh, a Senator from the State of New Hampshire, ex- pired by constitutional limitation on the 3d day of March, 1879, in a recess of the legis- lature, and on the 13th day of March, 1879, Mr. Bell was appointed in his place by the executive. By reason of a change in the constitution of that State, which took effect in October, 1878, two legislatures were chosen in that year, one, under the old constitution, in March, whose term of office commenced in June, 1878, and will terminate in May, 1879; the other, under the new constitution, was chosen in November to serve for two years, the term commencing in June, 1879. The Committee on Privileges and Elections of the Senate in the Forty-fifth Congress, to whom was referred the question which of these two bodies had the right to choose a successor to Mr. Wadleigh, was of opinion, and so reported to the Senate, that under the act of 1866 (Revised Statues, section 14) the last-named legislature was entitled to elect, because it was the legislature chosen next preceding the expiration of Mr. Wadleigh’s term of service. In the opinion of the committee this report, and the action of the Sen- ate in adopting it, are not important in the settlement of the question now presented. The Constitution of the United States, Article I, section 3, provides as follows: ‘‘The Senate of the United States shall be composed of two Senators from each State. chosen by the legislature thereof, for six years, and each Senator shall have one vote. “‘ Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the exec- utive thereof may make temporary appointments until the next meeting of the legisla- ture, which shall then fill such vacancies.”’ It has been noticed that this claimant bases his right to a seat in the Senate, not upon the fact that a term filled by the legislature of New Hampshire had become vacant during a recess of the legislature, but upon the fact that the executive claims the right to make a temporary appointment at the beginning of a term which the legislature has not under- taken to fill. The committee cannot find in the Constitution any sufficient warrant for this claim. If we look at the provision authorizing the governor to make temporary appointments independently of its connection with the rest of the section, we think it is manifest that the authority is limited to filling vacancies which happen in a term which had been pre- viously filled by the legislature. If it was intended to vest in the executive the power to make temporary appointments to terms for which no person had been chosen by the legislature, why should the words ‘‘ happen by resignation or otherwise’’ have been added to the word ‘‘vacancies’’? They certainly did not render it more comprehensive, and must have been designed to limit and restrict its meaning to vacancies occurring from accident or some unforeseen event. If any doubt, however, existed as to the mean- ing of the language referred to, when considered unconnected with the rest of the section, such doubts would be removed by construing the provisions of the section together. Ap- plying to them the rules recognized for the construction of statutes and constitutional provisions, the committee are forced to the conclusion that the legislature alone is em- powered to choose a Senator upon the expiration of a Senatorial term, and that the exec- utive can only make temporary appointments to fill vacancies occurring in a term which has been previously filled. It is well known that in the convention which framed the Constitution this subject received careful consideration. After it had been determined that the States should have equal representation in the Senate, the manner of choosing Senators was considered; various propositions were submitted, and, among others, ap- pointments by the executives of the States. Finally it was determined to-vest in the 28 SENATE ELECTION CASES. legislature the power of choosing Senators, and in the executive the power to make tem- porary appointments, if vacancies should happen in the office after it had been filled, until such time as the legislature could again act. This, it seems to the committee, was the obvious intent of the Constitution, gathered not only from the language of the entire section under consideration, but also from the debates in the convention in reference to its provisions. Nothing in the history of the Senate for the last fifty years is at variance with the views here presented. The records of the Senate show that down to the year 1817 a number of appointments were made by State executives of persons tosucceed Senators whose terms of service had expired, and that the persons so appointed were admitted to seats in the Senate. The first case was that of William Cocke, of the State of Tennessee. . This State was admitted into the Union in 1796. In the month of August of that year, William Cocke and William Blount were chosen Senators in Congress by the legis- lature. By lot they were assigned to the first and second classes of the three classes directed to be formed by the article of the Constitution above quoted, and Mr. Cocke having drawn the term which expired on the 3d day of March, 1797, during a recess of the legislature, was appointed by the governor to be his own successor on the 22d of April, 1797, and he was admitted to a seat without objection. The second case was that of Uriah Tracy, a Senator from the State of Connecticut, whose term expired on the 3d of March, 1801. Under an appointment by the governor he was admitted to a seat on the 4th day of March, 1801, after a heated discussion, and by a party vote of 13 to 10. This precedent was followed on the next day by the admission of Mr. Hindman, of Maryland; by the admission of Mr. Condit, of New Jersey, in 1803; Mr. Anderson, of Tennessee, and Mr. Smith, of Maryland, in 1809; Mr. Cutts, of New Hampshire, in 1813; and Mr. Williams, of Tennessee, in 1817 ; all executive appointments to fill places made vacant by the expiration of full terms of service during recesses of legislatures, and all were admitted without discussion and without objection. But in 1825 the term of James Lanman, of Connecticut, expired during a recess of the legislature. In anticipation of the vacancy he had been appointed by the governor as his own successor. His credentials were presented on the 4th day of March, 1825, and aftera protracted debate the Senate refused to admit him to aseat. No record of this debate has been preserved, and the committee have not the advantage of the reasoning by which the Senate was guided in its action. Enough, however, remains to show that the Senate decided that a vacancy authorizing an appointment by the executive had not ‘‘happened’’ within the meaning of the Constitution. It was held, and, in the opinion of this com- mittee, correctly, that the Constitution conferred upon the legislature, and upon it alone, the power to appoint a Senator for the beginning of a new term; and itseems to the com- mittee that this decision is clearly in accord with the spirit and meaning of the article of the Constitution already quoted. This section confers upon the legislature the right, and imposes upon it the duty, of . choosing Senators who are to serve for six years. In every one of the States a legislature must be in session at some time preceding the expiration of a Senatorial term. We know as a fact that at the time of the adoption of the Constitution these sessions were mostly annual, and, as now, those not annual were biennial. After the first assignment of Senators to classes, the term of office was fixed, and, under the Constitution, would expire at a time certain. When, therefore, the first clause of the third section, first article of the Constitution directed that Senators should be chosen by the legislatures, it appears most manifestly to have been the purpose of its framers to give exclusive power to the legislature to make the choice, unless, as provided by the last clause, vacancies should ‘‘happen”’ by resignation, or otherwise, during a recess of the legislature, when the executive should make temporary appointments until the next session of the legislature. : The power to make temporary appointments was conferred upon the executive because the accidents of death, resignation, expulsion, or acceptance of another office could not be foreseen or provided for by the legislature. In the one class of cases the time when a term would expire was fixed by law and was wellknown. There could be no doubtor uncertainty in regard to it, and in such case a vacancy could occur only by the willful disregard by the State in framing its organic law, or by the legislature, of constitutional obligations. In such case avacancy could not ‘‘ happen,’’ or occur by chance, casualty, or other event that could not be guarded against. The decision in Lanman’s case has been for more than fifty years regarded as a correct exposition of the Constitution. During this long lapse of years its authority has not been questioned, and it has guided the action of legislatures and of executives of States. Many cases have occurred when, under like circumstances, for months, and in some instances for one or two years, and even a longer time, States have been represented upon CHARLES H. BELL. 29 the floor of the Senate by a single Senator, and for the reason that the decision in Lan- man’s case was regarded as final and conclusive of the question. The following are cases of this character: Cases of unfilled seats or vacancies at beginning of Senatorial terms by reason of non-election. Maine.—Vacancy from March 4, 1853, till February 23, 1854, when William Pitt Fes- senden took the seat under an election. Connecticut.—Vacancy from March 4, 1851, to May 12, 1852, when Isaac Toucey pre- sented credentials of election by legislature. Pennsywania.—Vacancy from March 4, 1855, to January 18, 1856, when William Big- ler was seated on an election by the legislature. Maryland.—Vacancy from March 4, 1843, to January 2, 1844, when James Alfred Pearce, elected by the legislature, took the seat. North Carolina.—Vacancy from March 4, 1853, to December 6, 1854, when David 8. Reid’s certificate of election was presented. Indiana.—Vacancy from March 4, 1855, to February 4, 1857, when Graham N. Fitch was admitted on credentials of legislative election, which was contested, and the contest not decided till late in the spring of 1858. Missouri.—Vacancy from March 4, 1855, to January 12, 1857, when James S. Green was admitted on a legislative election. Californiu.—Vacancy from March 4, 1855, to February 15, 1857, when William M. Gwin presented himself under an election by the legislature. Oregon.—Vacancy from March 3, 1859, until December 5, 1860, when Edward D. Baker took the seat under a legislative election. It is said, however, that the Senate departed from the rule in Lanman’s case in the case of Mr Sevier, appointed as his own successor by the governor of Arkansas in the year 1837. 2 The report in this case, made by a committee of the Senate, shows that the State of Arkansas was admitted into the Union in the year 1836, and in September of that year elected two Senators, Mr. Sevier and Mr. Fulton. Under the constitutional rule Mr. Fulton was allotted to the second class of Senators and Mr. Sevier to the third, and his term of service expired on the 3d day of March, 1837, during a recess of the legislature. A committee of the Senate, to whom the credentials of Mr. Sevier were referred, after quoting the decision in Lanman’s case, say: “The decision seems to have been generally acquiesced in, 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 an election themselves, shall provide for all vacan- cies that must occur at stated or 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 arti- cle of the Constitution.” And the committee concludes by saying: “The case under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office under his election * * * was decided by lot under the provisions of the Constitution on that subject, * * * and therefore they recommend that Mr. Sevier be admitted.” The case in its facts was identical with that of Mr. Cocke, of Tennessee, settled in 1797, but in all material points differs from the one now under consideration. The committee, from every view of the case, are forced to the conclusion that the va- cancy occasioned by the expiration of the term of Senator Wadleigh cannot be filled by executive appointment, and therefore report the following resolution, and recommend its passage: Resolved, That the Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment by the executive of New Hampshire. E. SAULSBURY. BENJ. H. HILL. J. E. BAILEY. F. KERNAN. GEO. 8. HOUSTON. Z. B. VANCE. VIEWS OF THE MINORITY. 1. The undersigned members of the Committee on Privileges and Elections, to whom were referred the credentials of Hon. Charles H. Bell, claiming to be admitted as a Sea- 30 SENATE ELECTION CASES, ator from the State of New Hampshire, dissent from the conclusions of a majority of the committee. The Constitution, Article I, section 3, provides as follows: 1A. ‘‘The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. “Immediately after they shall be assembled in consequence of the first election, they ‘shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; 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 term of office of the Hon. Bainbridge Wadleigh, a Senator from the State of New Hampshire, expired on the 3d day of March, 1879. By the statute of the United States, approved July 25, 1866, re-enacted Revised Stat utes, 814, it is provided: “The legislature of each State, which is chosen next preceding the expiration of the. time for which any Senator was elected to represent such State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress.’’ Under the new constitution of New Hampshirea legislature was chosen in November, 1878, for a term to begin in June, 1879. That legislature cannot elect a Senator until June, 1879, because by the constitution of the State its legislative powers will not vest until then. Its predecessor could not elect a Senator at its last session, and cannot now, if called together in special session, because it was not the legislature last chosen before the expiration of Mr. Wadleigh’s term. The governor of New Hampshire, on the 13th of March, 1879, made temporary ap- pointment of the Hon. Charles H. Bell until the next meeting of the legislature. Mr. Bell now presents himself to claim the seat. The only question is, has a vacancy hap- pened by ‘‘resignation or otherwise,’’so that the executive was authorized to make this appointment? We are aided in determining this question by considering the leading purpose of the constitutional provision, the natural meaning of the words, and the uniform construc- tion given to similar language used elsewhere in the Constitution and the previous judgments of the Senate in like cases. The purpose of the Constitution is to have the Senate always full. This is the inter- est not merely of the State whose right to elect is in question, but of the whole country, for whom the Senator is to legislate, whose servant he is, and to whom his service is due. To this end the Constitution provides that ‘‘the Senate shall be composed of two Senators from each State,’’ and authorizes Congress to make regulations as to the time and manner of electing them. Congress has exercised this authority in the statutes cited, so that no failure of duty of either branch of the legislature may interrupt the State’s representation in the Senate. To meet the case of a vacancy happening in the recess of the State legislature the Constitution clothes the executive with the power of temporary appointment. The purpose to keep the representation of the State always full requires the construction which authorizes such appointment when the vacancy happens at the beginning of the term as much as if it happen at any other time. The authority given to the governor is to appoint ‘‘ until the next meeting of the legislature,”’ which literally construed would require the Senator so appointed to vacate his seat on the day the legislature meet. Yet the Senate, in furtherance of the controlling pur- pose of the Constitution that the place shall be always full, has uniformly held that the Senator so appointed retains his seat until the legislature choose his successor or adjourn without making a choice. The authority to appoint is vested in the executive ‘‘if a vacancy happen.’’ There is no distinction indicated between vacancies which happen when the term begins and vacancies which happen later. There can be no reason suggested for such a distinction. It is said that the term ‘‘vacancy’’ is not properly applied to offices whose term has expired by limitation at a fixed time but only to terms which have once been filled. But the Constitution expressly declares ‘‘the seats of the Senators shall be vacated at the expiration of the sixth year,’’ &c. Did the Constitution mean to declare that to vacate a seat does not create a vacancy in it? But it is said a vacancy which occurs at a certain time fixed by law is not a vacancy which ‘happens’? ; that the Constitution meant only to vest the appointing power in the CHARLES H. BELL. 31 executive in case of the vacancy occurring by reason of events wnich cannot be certainly foreseen; and this is the strong point of those who differ with us. On the contrary, we affirm that nothing is better settled in the construction of the Constitution and of legis- lation under it than that the words ‘‘vacancies happening’’ include the case of offices which have a fixed term which has expired, and which are vacant because no new ap- pointment has been made. Article 2, section 2, of the Constitution, in its provision for the appointment of officers, declares: ‘‘The. President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. Under this provision the President exercises the undisputed power of filling offices ‘which have a term fixed by law which expires in the recess of Congress. Most impor- tant rights of the people and of private citizens depend on the legality of such appoint- ments which the construction contended for by the majority of the committee must overturn. In Revised Statutes, section 1769, ‘‘the President is authorized to fill all vacancies which may happen during the recess of the Senate by reason of death, or res- ignation, or expiration of term of office.’”’ It is not the ending of the term, but the absence from the office of any person author- ized to fill it, to which the word ‘‘happen,’’ which expresses contingency, is applied. It is certain that the term will end. It is still uncertain whether the office will be va- cant, because that depends on the contingent event of the legislature’s having filled it. Tt is in accordance with the custom of our language to apply the word ‘‘happen’’ to the simultaneous occurrence of two events, both of which are certain to take place. ‘‘If the fourth of July happen on Sunday, the next day shall be a legal holiday.”? ‘‘If the last day of grace happen to be a holiday, the note shall be payable on the day preced- ing.”’ A fortiori the word may be appropriately used to express the occurrence at the same time of two events, one of which is contingent. If there happen to be no Senator in the office, the authority of the executive exists. The question has frequently arisen for judgment in the Senate. By a line of decis- ions unbroken, with one possible exception, it has been held that the governor of a State is authorized to fill a vacancy existing at the beginning of a Senatorial term. April 27, 1797, William Cocke was appointed a Senator from the State of Tennessee by the governor, his term having expired on the third of the preceding month. On the 15th of May, 1797, he presented his credentials, and was admitted to take the oath of office without objection or debate. March 8, 1801, the seat of Uriah Tracy, of Connecticut, became vacant by the expira- tion of his term of office. On the 20th of February, 1801, the governor of Connecticut reappointed him a Senator. Objection being raised to his credentials, he was admitted to the oath by a vote of yeas 13, nays 10. William Hindman, of Maryland, was afterward, on the next day, admitted to the oath on like credentials, without objection. John Condit, of New Jersey, November 14, 1803, appointed aSenator from New Jersey to fill the vacancy at the beginning of the term, was admitted to take the oath. Mr. Condit’s credentials had been presented October 17, previous. March 4, 1809, Samuel Smith, of Maryland, appointed on that day by the governor of his State to fill the vacancy caused by the expiration of his own term, was admitted to his seat and sworn. March 4, 1809, Joseph Anderson, of Tennessee, took his seat by virtue of an appoint- ment from the governor of that State. May 24, 1813, Charles Cutts, of New Hampshire, appointed by the executive to fill the vacancy during the recess of the legislature, was, without question, admitted to take the oath. This vacancy was at the beginning of the term. : March 4, 1817, John Williams, of Tennessee, appointed a Senator by the executive of the State, to hold said appointment until the meeting of the next session of the legisla- ture, was admitted. His credentials were filed on the 10th of the preceding February. March 4, 1825, James Lanman, of Connecticut, presented his credentials of his ap- pointment by the governor of that State, ‘‘to take effect immediately after the 3d of March, 1825, and to hold the seat until the next meeting of the legislature.” Mr. Lan- man was refused the seat by a vote of 23 to 13. The case was referred to a select com- mittee, who report the facts, but state neither reason nor conclusion. The committee say they have looked into the journals of the Senate, and that the cases of Cocke, Tracy, Anderson, and Williams are the only analogous cases they could find. There is a brief sketch of the debate in Niles’ Register, vol. 28, page 32, but no statement of the reason on which any Senator proceeded. There is no historical evidence from which we can deter- mine whether the Senate rejected Mr. Lanman on the ground that the governor could not fill a vacancy happening at the beginning of the term, or on the ground that the governor could not lawfully make the appointment in anticipation, before the vacancv 32 SENATE ELECTION CASES. occurred, and before he could possibly know whether the legislature might be called together before that time. All the precedents which the committee cite, except that of Mr. Cocke, were cases where the appointment was made not when the vacancy happened in the recess of the legislature, but only when the governor thought it might happen. In the case of Cocke the date of the appointment is not given in the journals, although in fact it was after the vacancy. The committee do not cite the caseof Hindman, Smith, or Condit, nor the then recent case of Cutts, in deciding which some Senators then in office took part, where the appointments were made after the vacancy existed. There is, therefore, nothing to show whether the Senate meant to overrule all the precedents, some of which were not brought to its attention, or only so many of them as recognized the right of the executive to appoint when a vacancy had not happened. Judge Story (Constitution, ¢'727, note 2) says: “In the caseof Mr. Lanman, a Senator from Connecticut, a question occurred whether the State executive could make an appointment in the recess of the State legislature in anticipation of the expivation of the term of office of an existing Senator. It was decided by the Senate that he could not make such an 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 to meet on the 4th of March. The governor of Connecticut, in the recess of the legislature (whose session would be in May), on the 9th of the preceding February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d of March. ° The Senate, by a vote of 23 to 18, decided that the appointment could not be constitu- tionally made until after the vacancy had actually oceurred.’’? (See Gordon’s Digest of the Laws of the United States, 1827; appendix, note 1, B.) In regard to the same case, the National Intelligencer of March 8, 1825, says in an editorial note: : ‘(An important constitutional question was yesterday decided in the Senate by the refusal to admit Mr. Lanman to a seat in the Senate under a commission from the gov- ernor granted before the expiration of Mr. Lanman’s late term of service. This is the first time the question has been adjudicated under such circumstances as to form a prece- dent; and we presume it may now be considered as a settled construction of the con- stitutional provision that a vacancy must have literally ‘happened’ or come to pass before an appointment can be made to fill it.”” The State of Arkansas was admitted to the Union in 1836. In October, 1836, the leg- islature of that State elected Ambrose H. Sevier and William 8. Fulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired on the 3d of March, 1837. The legislature of Arkansas had no opportunity to fill the vacancy, and were not in session after the result of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. When Mr. Sevier’s credentials were presented at the winter session, Mr. Webster sug- gested a doubt of the validity of the appointment, in which Mr. Sevier himself con- curred. At the March session the credentials were referred to the Committee on the Judiciary. Mr. Grundy, from that committee, reported in favor of Mr. Sevier’s admis- sion, and he was admitted. Mr. Grundy’s report states that it is not intended by the committee to call in question the correctness of the decision in the Lanman case; that that case proceeded on the ground ‘‘that the legislature should 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 contin- gency as is embraced in the second section of the first article of the Constitution.”’ The report further says: “The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of office was decided by lot.”’ From this review of the judgments of the Senate, it appears that in every casein which a Senator has been appointed by the executive after the happening of a vacancy by the expiration of a term without an election of a successor by the legislature, the person so appointed has been admitted to his seat. There is no indication that the Senate ever denied or doubted the correctness of this construction of the Constitution, except the un- supported statementof Mr. Grundy of the ground of adecision made twelve.years before— a statement which nothing in the journal of the debates confirms, and which is opposed to the understanding of Judge Story and the contemporaneous article in the Intelligencer. The second section of the first article of the Constitution provides: ‘‘ When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.’? In 1837, the law of Mississippi fixed the timé for the election of Representatives in November. The President having called a special ses- sion of Congress to meet in September, the governor of Mississippi, on the 13th of June, issued writs for an election in July for two Representatives to Congress to fill said vacancy, until superseded by the members to be elected at the next regular election in November, CHARLES H. BELL. 33 At this July election Messrs. Gohlson and Claiborne were elected and claimed the seats. Their claim was referred to a committee, of which Andrew Buchanan was chairman, who reported in favor of their right to seats for the full term. They say in their report: “The Constitution authorizes the executive power of the States respectively to order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the election of their successors.’? In the debate, John Quincy Adams said he believed, in relation to offices, that every one happens to be vacant which is not full; and that, he believed, was the meaning and sense of the Constitution, whether the vacancy occurred from casualty, the regular course of events, expiration of term, or other cause. The claimants were admitted to their seats. In November following, Messrs. Prentiss and Wood were elected for the same term. At the next December session, the resolu- tion declaring Gholson and Claiborne elected was rescinded, but a resolution was also adopted, by the casting vote of Speaker James K. Polk, that Prentiss and Wood were not members. So that no inference can properly be drawn from that case; and it is of no value, except so far as weight may be attached to the opinions of John Quincy Adams ay ames K. Polk, both favoring the construction of the Constitution for which we con- end. Appended to the report in the Mississippi case are opinions of two of the most distin- guished Attorneys-General of the United States, Roger B. Taney and William Wirt, in which they discuss the meaning of the phrase ‘‘ vacancies that may happen during the recess’? with reference to the power of the President to fill an office which is vacant in the recess, because the Senate adjourned without acting on a nomination, the original vacancy having happened during the session. Both these eminent jurists agree that the term ‘‘ happen’ is equivalent to ‘‘ happen to exist,’’ ‘‘if it come to pass that there be a vacancy.’? Mr. Taney says: “The Constitution was formed for practical purposes, and a construction that defeats the very object of the grant of power cannot be a true one. It was the intention of the Constitution that the offices created by law should always be full.”’ We submit, therefore, that the natural and ordinary meaning of the language employed, the purpose which the framers of the Constitution meant to accomplish, the unbroken current of decisions in like cases, and the uniform construction given to the same lan- guage when used elsewhere in the Constitution and in legislation in like cases, concur in supporting the interpretation which establishes Mr. Bell’s claim. The office of Senator is a continuous office. When the Senator is duly elected by the legislature beforehand no vacancy exists within the meaning of the Constitution. His taking the oath of office relates back to the beginning of the term and preserves the continuousness of the suc- cession. He is when on his way to take the oath deemed to be a Senator and privileged from arrest. A vacancy happens, and only happens, when the legislature has failed to make due election, or the person chosen declines the appointment, or when the office once filled is vacated by death, resignation, or otherwise. But if we adopt the narrowest possible construction imputed by Mr. Grundy in the Sevier report, the decision in the case of Lanman, the doctrine of the Sevier decision itself, isenough for the purpose of this case. If the failure of the Arkansas legislature to be in session after the expiration of Mr. Sevier’s term was decided by lot made the va- cancy contingent in the narrowest sense of that term, so thatthe governor could appoint, : certainly the fact that there is no legislature in the State able to.act constitutes such a contingency. Whether itso happens that the person once chosen is unable to remain in office, or it so happens that the legislature cannot meet and choose, the contingency of a vacancy in the office has occurred. The six months at the end of the term are no more important than six months at its beginning. The Constitution makes equally careful provision for either. GEO. F. HOAR. ANGUS CAMERON. JNO. J. INGALLS. THURSDAY, April 3, 1879. On motion by Mr. Saulsbury, the Senate proceeded to consider the resolution reported yesterday from the Committee on Privileges and Elections, declaring that Charles H. Bell is not entitled to a seat as a Senator by virtue of the appointment of the governor of New Hampshire. he de On motion by Mr. Hoar to amend the resolution by striking out, after the word ‘‘is,”’ the word ‘‘ not,’’ Pending debate, ’ Ordered, That the farther consideration of the resolution be postponed to Monday next. S. Doe. 11 8 34 SENATE ELECTION CASES. [The debate is found on pages 184-189 of the Congressional Record referred to in the head-note. } Monpay, April 7, 1879. The Senate resumed, &c. The question being on the amendment proposed by Mr. Hoar. ; [The debate is found on pages 273-286 of the Congressional Record referred to in the head-note. ] TUESDAY, April 8, 1879. The Senate resumed, &c. The question being on the amendment proposed by Mr. Hoar. [The a is found on pages 287-298 of the Congressional Record referred to in the head-note. WEDNESDAY, April 9, 1879. The Senate resumed, &c. The question being on the amendment proposed by Mr. Hoar. [The debate is found on pages 312-325 of the Congressional Record referred to in the head-note. ] THURSDAY, April 10, 1879. The Vice-President announced that the morning hour had expired, and called up the unfinished business of the Senate at its adjournment yesterday, viz, the resolution re- ported from the Committee on Privileges and Elections, April 2, 1879, declaring ‘‘that Charles H. Bell is not entitled to a seat as Senator by virtue of the appointment by the executive of New Hampshire’’; and The Senate resumed the consideration of the resolution; and The question being on the amendment proposed by Mr. Hoar, viz: After the word “fis”? strike out the word “‘not,’’ After debate, it was determined in the affirmative—yeas 35, nays 28. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt, Plumb, Randolph, Rollins, Saunders, Teller, Voorhees, Walker, White, and Williams. Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ran- som, Slater, Vance, Vest, Wallace, and Withers. So the amendment was agreed to. On the question to agree to the resolution as amended, as follows: “Resolved, That Hon. Charles H. Bell is entitled toa seat as a Senator by virtue of the appointment by the executive of New Hampshire,”’ It was determined in the affirmative—yeas 35, nays 28. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in.the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt; Plamb, Randolph, Rollins, Saulsbury, Saunders, Teller, Voorhees, Walker, Whyte, and Williams. Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ran- som, Slater, Vance, Vest, Wallace, and Withers. So the resolution as amended was agreed to. Mr. Charles H. Bell then appeared, and the oath prescribed by law having been ad- ministered to him by the Vice-President, he took his seat in the Senate. ‘ ithe en jis found on pages 341-355 of the Congressional Record referred to in the -note. MILEAGE OF MR. BELL. THURSDAY, June 19, 1879. Mr. Saulsbury, by unanimous consent, submitted the following resolution; which was eonsidered by unanimous consent, and agreed tc: “Resolved, That the Secretary of the Senate %: asd bo h=reby is, authorized and QHARLES H. BELL. 35 directed to pay Hon. Charles H. Bell mileage at the rate allowed by law for attendance 7s this session, the same to be paid out of the ‘miscellaneous items’ of the contingent und.” Frmay, June 20, 1879. Mr. Rollins presented the credentials of Henry W. Blair, elected a Senator by the legislature of New Hampshire for the unexpired portion of the term of six years com- mencing March 4, 1879; which were read. Mr. Blair then appeared, and the oath prescribed by law having been administered to him by the President pro tempore, he took his seat in the Senate. 36 SENATE ELECTION CASES. [Special session of Senate, March, 1885.] HENRY W. BLAIR, Senator from New Hampshire from June 20, 1879, to March 3, 1891. Mareh 9, 1885, the credentials of Mr. Blair, appointed by the governor to fill a vacancy happening during the recess of the legislature by the expiration of his previous term, March 3, were Bee A motion that the credentials be referred to the.Committee on Privileges and Elections was “a . mined in the negative. A resolution was then submitted that he be admitted to take the cat oO! office, which was agreed to March 10. It appears from the debates that the case presented t: cane questions presented by the case of Charles H. Bell (see page 26); thata legislature was see in November, 1882, to serve for two years, whose term of office began in June, 1888 ; that another legis: lature was elected in November, 1884, to serve for two years, whose term of office would besin an June, 1885; that the legislature elected in 1882, acting in accordance with its interpretation of the act of July 25, 1866, and in accordance with a report of this committee made in the Forty-fifth Eereoe on the same subject, had not elected a successor to Mr. Blair; that the question was wy he er a vacancy arising under such circumstances was a vacancy ‘‘ happening by resignation or 0} er ane! during the recess of the legislature of any State.” (Article I, section 8, of the Constitution.) Z ee tracts from remarks given below will show the grounds upon which different Senators Brgeee ed The history of the case here given consists of a transcript of the roceedings of the Senate re 5 ing to it from the Senate Journal, 48th Cong.,2d sess. (special session, March and April, 1885), an extracts from remarks of Senators. . 7 The debates are found in the Senate proceedings of March 9 and 10, 1885, in the Congressional Record, vol. xvii, part 1, pages 4 to 6 and 16 to 26. Monpay, March 9, 1885. Mr. Pike presented the credentials of Henry W. Blair, appointed a Senator by the governor of New Hampshire to fill the vacancy in the representatien from that State hap- pening March 4, 1885, during the recess of the legislature. The credentials were read; and, On motion by Mr. Vest that they be referred to the Committee on Privileges and Elec- tions, it was determined in the negative. Mr. Hoar thereupon submitted the following resolution: ‘Resolved, That Henry W. Blair, appointed a Senator from the State of New Hamp- ee be now admitted to take the oath of office,’’ en, On motion by Mr. Harris, and by unanimous consent, Ordered, That the consideration of the resolution be postponed to to-morrow. TurspAY, March 10, 1885. The Vice-President laid before the Senate the resolution yesterday submitted by Mr. Hoar, that Heury W. Blair be now admitted to take the oath of office as a Senator from the State of New Hampshire; and On the question to agree to the resolution, After debate, it was determined in the affirmative—yeas 36, nays 20. On motion by Mr. Vest, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Aldrich, Allison, Cameron, Chace, Con- ger, Cullom, Dawes, Edmunds, Evarts, Frye, Hale, Harrison, Hoar, Ingalls, Jones of Florida, Jonesof Nevada, McMillan, Mahone, Manderson, Miller of California, Miller of New York, Mitchell, Morrill, Palmer, Pike, Platt, Riddleberger, Sabin, Sawyer, Sewell, Sherman, Spooner, Stanford, Teller, Van Wyck, and Wilson. Those who voted in the negative are Messrs. Beck, Blackburn, Camden, Cockrell, Coke, Eustis, Gibson, Gorman, Jackson, Jones of Arkansas, Kenna, McPherson, Maxey, Mor- gan, Payne, Pugh, Ransom, Saulsbury, Vance, and Vest. So the resolution was agreed to. Mr. Henry W. Blair then appeared, and the oath prescribed by law having been ad- ministered to him by the Vice-President, he took his seat in the Senate. [Extract from remarks of Mr. Vest, of Missouri, in opposition to the resolution submitted by Mr. Hoar that Mr. Blair be admitted to take the oath of office. Found in the proceedings of March 10, 1885, in the Congressional Record, vol. xvii, part 1, p. 16.] ‘‘Mr. President, yesterday I asked that the resolution should go over until to-day in order that it might be examined by the new Senators just sworn into this body, and in HENRY W. BLAIR. 37 order that those of us who were members at the time the Bell case was under discussion and was determined should have an opportunity to refresh our recollection in regard to the points then made and discussed. It is not my purpose to enter into a lengthy ré- sumé of that argument then so exhaustively made. I simply wish to say now that I reaffirm what was my conclusion then as a lawyer in regard to this subject. “‘T voted on the Bell case that Mr. Bell was not entitled to a seat in this body; that the governor of a State had no right to fill an entire term by original appointment; that the meaning of the Constitution, which declares ‘if vacancies happen by resignation or otherwise, during the recess of the legislature of any State’ the executive authority of a State may make a temporary appointment, is that when a vacancy shall occur, not by operation of law, but by some event which applies to the individual asking for the office or applying for admission into this body, by the resignation of a person, by death oper- ating upon him, and that the word ‘otherwise’ in that connection means by similar casualty—when a vacancy shall happen, when it shall occur, not by operation of statute or of any constitution, but when it occurs by resignation, death, or otherwise. ‘*'The terms of the Constitution as originally made—and I shall be very brief in the dis- cussion of the subject, for I only propose to give my own reasons for casting my vote—the terms of the Constitution are: ‘«*Tf 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 vacancy.’ ‘*There are three clauses in the Federal Constitution in which the word ‘ happen’ is used. First, in Article II, section 2, the Constitution says: ‘**The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.’ “Article I, section 2, provides: ‘« “When vacancies happen in the representation from any State, the executive author- ity thereof shall issue writs of election to fill such vacancies.’ “Article I, section 3, which is the clause now under discussion, provides: ‘And if vacancies happen by resignation or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.’ ‘Tn all three of these clauses the word ‘happen’ is used, but I call the attention of the Senate to the fact that in the first two clauses in regard to vacancies in the House of Representatives and vacancies during a recess of the Senate as to executive officers, the word ‘happen’ is without limitation, ‘where vacancies shall happen,’ and there is the termination of the power of the President in regard to executive appointments; but in regard to Senators the Federal Convention put a limitation upon the word ‘happen.’ They did not stop with declaring where vacancies may happen during a, recess of a legis- lature that then the governor may appoint, but where a vacancy shall happen by resig- nation or otherwise. “Tf the Senators now present are correct who claim the power of a governor to exist to appoint in these cases, we are forced to the conclusion that the words ‘ by resignation or otherwise’ are void and meaningless as used by the framers of the Constitution, or else that the terms are a limitation upon the word ‘happen.’ They are not found in the other two clauses of the Constitution. What makes this argument more significant and con- clusive to my mind is that the original draught of the Constitution, which I have before me, and the debates show that the clause as originally reported to the convention of 1787 was absolute and unlimited, when a vacancy should occur, and Mr. Madison moved to put in these terms of limitation, that where the vacancy should occur by resignation or otherwise, or equivalent terms, then the governor of the State might appoint. “T know it has been said that contemporaneous construction at the time militates against this view. In the debate which occurred in the Bell case an editorial was read from the National Intelligencer of March 8, 1825, and it was said that this had been adopted by Judge Story and by Mr. Gordon, who was compiling a book in regard to the proceed- ings of Congress at that time. The most authoritative statement in regard to the mean- ing of Congress and the debates of Congress at that time is found in Niles’s Register, the authority of which I take it will not be questioned on this floor. In Niles’s Register I find the following: ‘“¢The following members ’— ‘Says the Register of March 12, 1825— ‘may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.’’ It is well settled, in accordance with the opinion of Attorneys-General Wirt, Taney, Legare, Mason, Cushing, Bates, Stanberry, Evarts, and Devens, that where an office becomes vacant during the session of the Senate, and the Senate adjourns before it has been filled, that a vacancy happens during the recess of the Senate, within the meaning of this clause of the Constitution; and that the President’s power to fill the vacancy comes into life. Upon this construction of the Constitution the late Mr. Justice David Davis received a commission and sat upon the bench of the Supreme Court of the United States by virtue thereof. Mr. Attorney-General Taney, in his opinion, cites the opinion of President John Quincy Adams to the same effect as his own. Indeed, all the opinions of the Attorneys-General before referred to were acted upon by the Presidents of the United States to whose administration they belonged, constituting together a vast weight of constitutional authority. All these opinions are cited in a very able discussion of this question by Attorney-General Devens. (Opins. Attys. Gen., vol. 16, p. 522.) In the case of the State ex rel. Yancey v. Hyde (121 Ind., 20), the act of the general assembly of Indiana having created an office to be filled by a director elected by the legislature, it was held, Berkshire, J., giving the opinion, that so much of the act as provided for the appointment of the officer by the legislature was unconstitu- tional and void, the appointment to office not being a legislative function—the Con- stitution vesting the appointing power in the executive. Second. That the appointment of such officer by the legislature being void, there was a vacancy in the office at the beginning of the term, which the governor was competent to fill, under the powers given him by the Constitution to fill vacancies in public offices. The following is the provision of the constitution of Indiana above referred to, sec- tion 18, Article V: ‘When, during the recess of the general assembly, a vacancy shall happen in any office the appointment to which is vested in the general assembly or when at any time a vacancy shall have occurred in any other State office or in the office of judge of any court, the governor shall fill such vacancy by appointment.”’ i It will be seen that that case deals with precisely the same question which arises ere. In the case of the State v. Gorby (122 Ind., 17), it was held as follows: ‘Where an office is created by law, to be filled immediately, no legitimate mode being provided for filling the same, it is vacant on the taking effect of the law, and the governor may fill such vacancy by appointment. So, the legislature having created the office of director of the department of geology, an administrative State office, but having no power to fill it, the office was vacant and the governor had the right to fill the vacancy until a general election by the people.’’ LEE MANTLE, OF MONTANA. 57 We have, then, first, a clear and controlling constitutional purpose that every State shall be at all times represented in the Senate by two Senators. Second. A declaration by the Constitution that that purpose is to be accomplished by ns of the executive of the State when the legislature has failed to elect a Senator. _ Third. The use of language in the Constitution which, according to good and estab- lished usage, is sufficient in its ordinary meaning to confer this power on the executive in the case of a vacancy existing for any cause whatever, and at any time whatever while the eae is not sitting, whether contingent or otherwise. Fourth. Where like phraseology is used in the Constitution in regard to other offices it has been uniformly Feld to have the meaning we attribute to it here. Fifth. The construction given by the very able supreme court of Indiana to lan- guage substantially identical. : Sixth. The Senate has for many years past invariably recognized the controlling obligation of this purpose of the Constitution, even where the language is doubtful or where a literal construction would lead to another result. (a) Where the Constitution says, ‘‘If vacancies happen by resignation or other- wise 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,’’ it is held that a Senator so appointed by the executive may sit until the legislature elects a successor or adjourns without such election, in order that the Senate may be full. (See the case of Mr. Winthrop; Taft, Senate Election Cases, 10.) (b) Where the Constitution says, ‘‘That if vacancies happen, etc.,’’ it is held that the executive may appoint in advance of such vacancy, that the Senate may be full. (Case of Mr. Chisholm, Fifty-second Congress; case of Mr. Pasco, Fifty-third Congress. ) (c) Where the Constitution says, ‘‘If vacancies happen, etc.,’’ this isheld to cover the case of a vacancy by expiration of a term certain and to permit the executive to appoint for the beginning of the following term in case the legislature has not elected, that the Senate may be full. (Case of Mr. Bell; Taft, Senate Election Cases, 26; case of Mr. Blair, ib., 36; case of Mr. Marston. ) (d) Where the Constitution says that ‘‘the Senate shallchoose * * * a Presi- dent pro tempore in the absence of the Vice-President,’’ it has been held that the Senate may elect such officer in advance of such absence, that the office may be full. ‘oy of Mr. Ingalls; election of Mr. Manderson; election of Mr. Harris, March, 1893. (e) Where the Constitution says, speaking of the appointment of civil officers, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session,’’ it is held that if a vacancy happen when the Senate is in ses- sion and continue after its adjournment, the President may fill up such vacancy, that the office may be full. (f) Where the Constitution says, ‘‘When vacancies happen in the representation from any State, the executive thereof shall issue writs of election to fill such vacan- cies,’’ it is held that if there should be a vacancy at the beginning of a Representa- tive’s term, by failure to elect under the majority rule, or by death, or refusal to serve, or otherwise, the executive of the State may issue such writ of election, that the office may be full. . It has, moreover, been expressly held by the Senate, in the case of Mr. Sevier, of ‘Arkansas—determined in 1837—that where the legislature of Arkansas, being in session when Mr. Sevier’s term ended, adjourned without electing his successor, the governor could appoint. The only distinction between that case and the present one ig that Mr. Sevier, being a Senator elected by the State upon its admission, drew by lot a term which expire datihe the session of the legislature ana the legislature adjourned before the expiration of his term had come to its knowledge. The case of Lanman, Taft, Senate Election Cases, page 5, has been distinctly over- ruled by the Senate, either by the Bell case and those which followed it, or the cases of Chisholm and Pasco above cited. It is shown by an unbroken line of decisions, with one possible but doubtful exception, that the Senate has maintained the authority of the executive to appoint to a vacancy which occurs at the beginning of a Senatorial term by reason of the failure to elect. Wedo not think it necessary to insist upon the importance of an adherence by this high court to precedents in judicial matters such as the title to its seats. Unless the Senate, when acting judicially, adhere to its precedents, the rights of the States must depend upon the changing political majorities in this Chamber. It seems quite as important that the construction given by the Senate to the Con- stitution in proceedings of a judicial nature should be inflexibly adhered to, except in cases of clear error, in spite of the grave and serious temptation which must beset this tribunal beyond all others to depart from them in times of high political excite- 58 SENATE ELECTION CASES. ment. Todo justice and declare the law and the fact, without respect of persons or parties, will be the peculiar glory of a tribunal which itself consists of parties deeply interested in the determination. We therefore recommend the adoption of the following resolution: , Resolved, That Lee Mantle is entitled to be admitted to a seat asa Senator from the State of Montana. APPENDIX A. The question has frequently arisen for judgment in the Senate. By a line of deci- sions unbroken, with one possible exception, it has been held that the governor of a State is authorized to fill a vacancy existing at the beginning of a Senatorial term. April 27, 1797, William Cocke was appointed a Senator from the State of Tennessee by the governor, his term having expired on the 3d of the preceding month. On the 15th of May, 1797, he presented his credentials, and was admitted to take the oath of office without objection or debate. March 3, 1801, the seat of Uriah Tracy, of Connecticut, became vacant by the expi- ration of his term of office. On the 20th of February, 1801, the governor of Connecti- cut reappointed him a Senator. Objection being raised to his credentials, he was admitted to the oath by a vote of yeas 13, nays 10. William Hindman, of Maryland, was afterwards, on the next day, admitted to the oath on like credentials, without objection. John Condit, of New Jersey, November 14, 1803, appointed a Senator from New Jersey to fill the vacancy at the beginning of the term, was admitted to take the oath. Mr. Condit’s credentials had been presented October 17, previous. March 4, 1809, Samuel Smith, of Maryland, appointed on that day by the governor of his State to fill the vacancy caused by the expiration of his own term, was admit- ted to his seat and sworn. March 4, 1809, Joseph Anderson, of Tennessee, took his seat by virtue of an appointment from the governor of that State. May 24, 1813, Charles Cutts, of New Hampshire, appointed by the executive to fill the vacancy during the recess of the legislature, was, without question, admitted to take the oath. This vacancy was at the beginning of the term. March 4, 1817, John Williams, of Tennessee, appointed a Senator by the executive of the State, to hold said appointment until the meeting of the next session of the cme! was admitted. His credentials were filed on the 10th of the preceding February. March 24, 1825, James Lanman, of Connecticut, presented his credentials of his appointment by the governor of that State, ‘‘to take effect immediately after the 3d of March, 1825, and to hold the seat until the next meeting of the legislature.’’ Mr. Lanman was refused the seat by a vote of 23 to 13. The case was referred to a select committee, who report the facts, but state neither reason nor conclusion. Thecom- mittee say they have looked into the journals of the Senate, and that the cases of Cocke, Tracy, Anderson, and Williams are the only analogous cases they could find. There is a brief sketch of the debate in Niles’s Register, volume 28, page 32, but no statement of the reason on which any Senator proceeded. There is no historical evi- dence from which we can determine whether the Senate rejected Mr. Lanman on the ground that the governor could not fill a vacancy happening at the beginning of the term, or on the ground that the governor could not lawfully make the appointment in anticipation, before the vacancy occurred, and before he could possibly know whether the legislature might be called together before that time. All the precedents which the committee cite, except that of Mr. Cocke, were cases where the appointment was made not when the vacancy happened in the recess of the legislature, but only when the governor thought it might happen. In the case of Cocke the date of the appoint- ment is not given in the journals, although, in fact, it was after the vacancy. The committee do not cite the case of Hindman, Smith, or Condit, nor the then recent case of Cutts, in deciding which some Senators then in office took part, where the apron were made after the vacancy existed. There is, therefore, nothing to show whether the Senate meant to overrule all the precedents, some of which were not brought to its attention, or only so many of them as recognized the right of the executive to appoint when a vacancy had not happened. Judge Story (Constitution, sec. 727, note 2) says: ‘‘In the case of Mr. Lanman, a Senator from Connecticut, a question occurred whether the State executive could make an aes in the recess of the State legislature in anticipation of the expi- ration of the term of office of an existing Senator. It was decided by the Senate that he could not make such an 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 to meet on the 4th of March. The governor of Connecticut, in * LEE MANTLE, OF MONTANA. 59 the recess of the legislature (whose session would be in May), on the 9th of the pre- ceding February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d of March. The Senate, by a vote of 23 to 18, decided that the appointment could not be constitutionally made until after the vacancy had actually occurred.”’ (See Gordon's Digest of the Laws of the United States, 1827; Appendix, note 1, B.) In ee to the same case, the National Intelligencer of March 8, 1825, says in an editorial note: ‘‘ An important constitutional question was yesterday decided in the Senate by the refusal to admit Mr. Lanman to a seat in the Senate under a commission from the governor granted before the expiration of Mr. Lanman’s late term of service. This is the first time the question has been adjudicated under such circumstances as to form a precedent; and we presume it may now be considered as a settled construc- tion of the constitutional provision that a vacancy must have literally ‘happened,’ or come to pass, before an appointment can be made to fill it.”’ The State of Arkansas was admitted to the Union in 1836. In October, 1836, the legislature of that state elected Ambrose H. Sevier and William S. Fulton Senators. On the allotment of the Arkansas Senators to their respective classes, as required by the third section of the first article of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired on the 3d of March, 1837. The legis- lature of Arkansas had no opportunity to fill the vacancy, and were not in session after the result of the allotment was known in that State. January 17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. hen Mr. Sevier’s credentials were presented at the winter session, Mr. Webster suggested a doubt of the validity of the appointment, in which Mr. Sevier himself concurred. At the March session the credentials were referred to the Committee on the Judiciary. Mr. Grundy, from that committee, reported in favor of Mr. Sevier’s admission, and he was admitted. Mr. Grundy’s report states that it isnot intended by the committee to call in ques- tion the correctness of the decison in the Lanman case; that that case proceeded on the ground ‘‘that the legislature should 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 report further says: ‘“The case now under consideration is wholly different in principle. The time when Mr. Seiver was to go out of office was decided by lot.”’ From this review of the judgments of the Senate it appears that in every case in which a Senator has been appointed by the executive after the happening of a vacancy by the expiration of a term without an election of a successor by the legislature the erson so appointed has been admitted to his seat. There is no indication that the Ronate ever denied or doubted the correctness of this construction of the Constitu- tion, except the unsupported statement of Mr. Grundy of the ground of a decision made twelve years before, a statement which nothing in the journal of the debates con- firms, and which is opposed to the understanding of Judge Story and the contempo- raneous article in the Intelligencer. The second section of the first article of the Constitution provides: ‘‘ When vacan- cies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.’’? In 1837 the law of Mississippi fixed the time for the election of Representatives in November. The President having called a special session of Congress to meet in September, the governor of Mississippi, on the 13th of June, issued writs for an election in July for two Representatives to Congress to fill said vacancy until superseded by the members to be elected at the next regular election in November. At this July election Messrs. Gholson and Clairborne were elected and claimed the seats. Their claim was referred to a committee, of which Andrew Buchanan was chairman, who reported in favor of their right to seats for the full term. They say in their report: “The Constitution authorizes the executive power of the States respectively to order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the electian of their successors.” In the debate, John Quincy Adams said he believed, in relation to offices, that every one happens to be vacant which is not full, and that, he believed, was the meaning and sense of the Constitution, whether the vacancy occurred from casualty, the regular course of events, expiration of term, or other cause. The claimants were admitted to their seats. In November following Messrs. Pren- tiss and Wood were elected for the same term. At the next December session the resolution declaring Gholson and Clairborne elected was rescinded, but a resolution 60 SENATE ELECTION CASES. was also adopted by the casting vote of Speaker James K. Polk, that Prentiss and Wood were not members. So that no inference can properly be drawn from that case, and it is of no value, except so far as weight may be attac ed to the opinions of John Quincy Adams and James K. Polk, both favoring the construction of the Con- stitution for which we contend. betas as ot fod Appended to the report in the Mississippi case are opinions of two of the most distinguished Attorneys-General of the United States, Roger B. Taney and William Wirt, in which they discuss the meaning of the phrase ‘‘ vacancies that may happen during the recess”’ with reference to the power of the President to fill an office which is vacant in the recess, because the Senate adjourned without acting on a nomina- tion, the original vacancy having happened during the session. Both these eminent jurists agree that the term ‘‘happen”’ is equivalent to ‘‘happen to exist,”’ ‘‘if it come to pass that there be a vacancy.’’ Mr. Taney says: ‘‘The Constitution was formed for practical purposes, and a construction that defeats the very object of the grant of power can not be atrue one. It was the intention of the Constitution that the offices created by law should always be full.” ; We submit, therefore, that the natural and ordinary meaning of the language employed, the purpose which the framers of the Constitution meant to accomplish, the unbroken current of decisions in like cases, and the uniform construction given to the same language when used elsewhere in the Constitution and in legislation in like cases, concur in supporting the interpretation which establishes Mr. Bell’s claim. The office of Senator is a continuous office. When the Senator is duly elected by the legislature beforehand no vacancy exists within the meaning of the Constitution. His taking the oath of office relates back to the beginning of the term and preserves the continuousness of the succession. He is when on his way to take the oath deemed to be a Senator and privileged from arrest. A vacancy happens, and only happens, when the legislature has failed to make due election or the person chosen declines the appointment or when the office once filled is vacated by death, resigna- tion, or otherwise. But if we adopt the narrowest possible construction imputed by Mr. Grundy in the Sevier report, the decision in the case of Lanman, the doctrine of the Sevier decision itself, is enough for the purpose of this case. If the failure of the Arkansas legislature to be in session after the expiration of Mr. Sevier’s term was decided by lot made the vacancy contingent in the narrowest sense of that term, so that the governor could appoint, certainly the fact that there is no legislature in the State able to act constitutes such a contingency. Whether it so happens that the person once chosen is unable to remain in office, or it so happens that the legislature can not meet and choose, the contingency of a vacancy in the office has occurred. The six months at the end of the term are no more important than six months at its beginning. The Constitution makes equally careful provision for either. VIEWS OF THE MINORITY. The undersigned, a minority of the Committee on Privileges and Elections, not being able to agree with the opinion of the majority, beg leave to set forth their reasons for their disagreement, as follows: Fortunately, there is no disagreement as to the facts in the case of Mr. Mantle, appointed a Senator by the governor of the State of Montana. The legislature of that State failed to elect, after a full session, a successor to the Hon. W. F. Sanders, whose term expired March 4, 1893. The session of the legislature of that State expired on the 3d of March and it adjourned sine die. The credentials of Mr. Mantle are dated March 4, and certify to his appointment to fill the vacancy which resulted from the expiration of the term of Mr. danders: . Substantially the same facts, with the change of names snd dates, attend the appearing here as Senator of the Hon. A. C. Beckwith, of Wyoming, and, with the exception of a single circumstance, the same facts appear in the case of the Hon. John B. Allen, of Washington, who was appointed his own successor by the governor of that State under date of the 10th day of March, 1893. The fact that distinguishes this case from the other two is that the legislature of Washington was in session on the 4th of March, when Mr. Allen’s term expired, and remained in session until the 9th of the same month, when it adjoured sine die, without having elected his suc- cessor. Unless, therefore, this circumstance should make a difference in the law of the case, they may all three be considered under one head. The question in each case is, could the governor of the State appoint a Senator at the beginning of a new term, the legislature being in session and refusing or failing to elect? The Constitution of the United States pertaining to this subject, Article I, section 3, provides: : “The Senate of the United States shall be composed of two Senators from each LEE MANTLE, OF MONTANA. 61 State Sea by the legislature thereof, for six years; and each Senator shall have one vote. ‘Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; 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.” In connection therewith and supplementary thereto, may be quoted the provisions of ies act of 1866, which we conceive necessary to be considered in the same exami- nation. This act of Congress makes clear and gives constuction to two points not entirely clear by the express terms of the Constitution, namely, it provides what particular legislature shall elect a successor to one whose term is about to expire; and, secondly, it provides that a legislature in session, when a vacancy occurs, shall fill that vacancy. And this construction of the Constitution has been universally followed ever since. Its provisions are as follows: Section 14 of that act says: “The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress, etc.”’ Section 16 of the same act provides that— ‘‘Whenever on the meeting of the legislature of any State a vacancy shall exist in the ee of said State in the Senate, the legislature shall proceed on the second Tuesday after meeting and organization to fill such vacancy in the manner described in the preceding section for the election of a Senator for a full term.” We submit that according to the ordinary acceptation of this language, and by all the well-established rules of construction as laid down by the courts, its plain and obvious meaning can not be mistaken and must be obeyed. There are only two ways by which a citizen can be constituted a Senator of the United States. One, and the primary one, is by the election of the legislatures of the several States—no one doubts that. The original terms of the Senators of any State must begin by being chosen by the legislature. The other way’of becoming a Senator is by appointment of the execu- tive to fill a vacancy which has happened by resignation or otherwise during a recess of the legislature, and which appointments it is provided may be made until the said legislature shall next assemble. These two methods of constituting a Senator were well described by Mr. Pettit in his report on the Phelphs case, as primary and con- tingent; and as there were two ways of constituting Senators, so there were, obviously, but two ways of creating vacancies; one, the primary way, by the expiration of the con- stitutional term for which the Senator was elected, the other the accidental, or unfore- seen, or unexpected ‘“‘happening”’ of some casualty to or upon the incumbent, such as death before his term ended, resignation, expulsion, disqualification, or any other cause that should take him out of the office to which he was elected. Now, the Constitution having made specific and express provision for filling the original term of each Senator by the legislature, there remained nothing else to pro- vide for except those accidental interruptions of a term which should ‘‘happen”’ to create a vacancy. The manner of this happening and the kind of vacancy or of the cause which might create such a vacancy is signified by the example given, as by ‘‘resignation or otherwise.’’ The rule of legal interpretation undoubt- edly is that where specific words are used, followed by more general words, the general words are qualified by the specific words. It is thus stated by Willis, jus- tice, in Fenwick v. Schmaltz (L. R. 3, C. P. 315, cited in Endlich, p. 568): ‘“‘A general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words; or, in other words, as comprehending only things of the same kind as those designated by them, unless, of course, there is something to show that a wider sense was intended.”’ ee ; Algo see the language of Lord Cairns in Ashbury Company v. Rich (L. R. 7, H. L. 653, cited by Sutherland, p. 352). The memorandum of the company said that it was formed for the purpose, among others, of carrying on the business of mechanical engineers and general contractors. A question arising, what was the scope of the concluding words, ‘‘general contractors,”’ Lord Cairns said: Upon all ordinary principles of construction, those words must be referred to the part of the sentence which immediately precedes them; therefore the term ‘general 62 SENATE ELECTION OASES. contractors’ would be referred to that which goes immediately before, and would indicate the making, generally, of contracts connected with the business of mechan- ical engineers. If these words were not to be interpreted as I have suggested, the consequence would be that they would stand absolutely withoutany limit of any kind.” In the Countess of Rothes v. Krikaldy Water Works Commissioners (L. R. 7 App., Cass, 706), the doctrine was announced that ‘‘ when a specific enumeration concludes with a general term, it is held to_be limited to things of the same kind. It is restricted to the same genus as the things enumerated.” (See Sutherland Statutory Construction, passim; Endlich on the Interpretation of Statutes, passim, and the cases there cited.) The books are full of them. There is no learning more familiar. To the same effect is the case of Ham v. The State of Missouri, in 18 Howard, page 126. The plaintiff in error was indicted for a trespass on land belonging to the State of Missouri, which had been granted in 1820to that State for school purposes, being every sixteenth section of certain boundaries of land. Ham pleaded that by another act in 1811 the Congress of the United States had reserved and set apart from entry and sale certain lands against which there were outstanding claims until said claims had been settled. The terms of the grant to the State of Missouri were of every six- teenth section, ‘‘ unless the same had been sold or otherwise disposed of.’’ Ham’s counsel argued that this reservation from public entry and sale was equivalent to having been ‘‘ otherwise disposed of,’’ but the court held to the contrary, in the following language: “The language and plain import of the sixth section of the act of the 3d of March, 1820, confer a clear and positive and unconditional donation of the sixteenth section in every township; and, when these have been sold or otherwise disposed of, other and equivalent lands aregranted. Sale, necessarily signifying a legal sale by a compe- tent authority, is a disposion, final and irrevocable, of the land. The phrase, ‘or otherwise disposed of,’ must signify some disposition of the property equally efficient and equally incompatible with any right of the State, present or potential, as dedu- cible from the act of-1820 and the ordinance of the same.”’ Here is an unequivocal avowal by the highest court in the United States of the existence of the rule, that the general term must be restricted and governed by the particular term, the particular term here being ‘‘sale.’’ The court declared that the disposition ‘‘otherwise’’ must be equivalent and equally efficient in all its legal effects to a sale. ; The case of the Thames Insurance Company v. Hamilton was an action upon a policy providing for insurance against all the perils of the sea, and of ‘‘all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the aforesaid subject-matter of this insurance or any part thereof.” The damage alleged was to a donkey engine, which was used in pumping water into the main boiler, and which burst, owing to a valve being closed shih ought to have been open. ae the course of the judgment Chancellor Hallsbury said: “If understood in their widest sense the words are wide enough to include the injury; but two rules, now fairly established as a part of our law, may be considered as limitlng these words. One is that words, however general, may be limited with reference to the subject-matter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them. (See Sutherland on Statutory Construction, p. 357.)” It is not necessary to give more illustrations from the authorities in regard to this rule. Now, apply it to the clause of the Constitution in question. The method of choosing Senators for a full term had already been provided for by the preceding clause of the section; there remained no other necessity of providing for the filling of Senators’ seats except in case of an accidental happening, and this is provided for by the words, ‘‘if vacancies shall happen by resignation or otherwise during the recess of the legislature,’ ete. Plainly and unmistakably the manner in which such vacancies were to happen are exemplified by the word “resignation,” and the addition of the general words, ‘‘ or otherwise,”’ referred only to the unenu- merated methods of a similar kind, by which such accidental vacancy might occur. If we apply the ordinary rules of construction there is no escape from this; but, if, as contended, the word ‘‘ otherwise’? embraces any possible vacancy, then it would be without any limitation or qualification whatever, and the word ‘‘ resignation ’’ would be eliminated and destroyed. It may be added also, without irreverence, that our respect for the learning and common sense of the framers of our Constitution would be likewise destroyed. If they had intended to provide that the governors should fill every vacancy that could possibly happen during the recess of the legislature, then they would have said so, as they did in the case of a similar provision for fillin vacancies in the House which happen in the representation of any State, as provid in the fourth clause of section 2: LEE MANTLE, OF MONTANA. 63 But it is said that the word ‘‘ happen” does not necessarily refer to a casualty or an unexpected event; that in our language we make use of that word indifferently for ‘‘ occur’’ ‘‘or come to pass.” It is respectfully submitted that this is not true. An event that is provided for by law to take place at stated periods known to all men is not correctly spoken of by people of ordinary education as ‘‘ happening,’ because there is no element of uncertainty in it. The examples given of statutes providing for certain things to be done on a certain day of a month “‘if it happen not on a Sunday,” etc., willnot bear out the assertion. It is true that it might be known to all men who are astronomers, and would sit down and make calculations that a cer- tain date in a certain year would fall on Sunday; but the great masses of mankind do not think of it in that way. They speak as though the thing were absolutely uncer- tain. But we do not say, for instance, that any natural event, which all men know and look for, did ‘‘ happen’’ to come at the time on which it was expected; we do not say that the sun ‘‘ happened ”’ to rise on a certain day; we do not say that water ‘‘happens”’ to flow down a descent by the force of gravity. That is a known law of nature. We do not say that Christmas ‘‘happens”’ to come on the 25th of Decem- ber—by the universal consent of Christendom that event comes on that day without peradventure. We do not say that a note ‘‘happens”’ to fail due on the day which is precited in the instrument, though it no doubt is often said that it ‘‘ happened ”’ to fall due when the maker did not have the money to pay it. We do not say that Congress happened to meet on the first Monday in December— that is the law. We do not say that a Senator’s term in this body happened _to expire on the 3d day of March, for that is the law written in the Constitution. We do say, per contra, that Senator A. B. ‘‘happened’’ to die before his term had expired; we do say that Senator C. D. ‘‘happened”’ to resign before his term had expired; we do say that Senator E. F. ‘‘ happened ’’ to become disqualified by accept- ing an incompatible office or to be axpelled. before his term had expired, and so on. In the common acceptation of mankind these phrases are used and understood without controversy. So obvious is their meaning that those who contend for the power of the governor to appoint for any vacancy. whatever occurring in the recess of the leg- islature of a State, are compelled to resort to the argument ab inconvienenti. They say that the paramount purpose of the Constitution is to keep the Senate full, and they dwell upon the importance of the constitutional provision that no State, without its consent, shall be deprived of its equal suffrage in the Senate. If they mean by this that the purpose of the Constitution is to keep the Senate full by any and all means whatsoever, the statement is not correct. That the Constitu- tion expresses a strong or controlling purpose to keep the representation of each State full in the Senate is manifested by its specific provisions for filling regular terms both at the beginning and as they legally expire, and by gla for any accidental or-unforeseen casualties by which seats thus filled might become vacant otherwise than by legal expiration of terms. Further than this no man can say that the Constitution makers intended to go. It can not for a moment be supposed that they contemplated or intended to provide for a case where either the legislature or the governor of a State should wantonly or with any other motive or for any reason either refuse or fail to perform their duty in the creation of Senators. This would have been toexpress a doubt and want of faith in the perpetuity of the structure which they were building. On the contrary, it is just and reasonable to suppose that, having invested each State with certain specific rights as to representation in this body, and imposed upon them the duty of exercising these rights in a certain specified way, patriotism and self-interest would combine to secure the enjoyment of these rights more effectually than any provision which they could possibly insert in the Constitution. The paramount purpose of the Constitution, if there be such a thing expressed in any one particular paragraph, we should say, was to keep the Senate full of Senators legally placed there according to the terms of this instrument; to establish a govern- ment in accordance with the provisions it lays down. It is illogical in the extreme to contend that the method of supplying a casual vacancy in the Senate contains the controlling purpose of the Constitution. If the frequency and emphasis of the words are considered, much stronger would be the argument that the election of Senators by the legislatures of the States is the controlling purpose. Look at the language: “The Senate of the United States shail be composed of two Senators from each State, chosen by the legislature thereof’’—not appointed by governors or anyone else— “immediately after they shall be assembled in consequence of the first election’’—not first appointment—‘“‘after dividing them into three’’ classes—the language is—‘‘so that one-third may be chosen’’—not appointed—‘‘ every two years. And if vacan- cies happen by resignation, etc., the executive may make temporary appointment until the next meeting of the legislature, which shall then fill such vacancies.’’ The power of the executive is, ‘‘may make temporary appointments,”’ while the 64 SENATE ELECTION CASES. injunction to the legislature is ‘‘shall be chosen’’—the one is mandatory and the other is permissive; and yet they say the permissive power controls and is para- mount to the mandatory power of the legislature to elect. This eee eae clearly is only intended to give State executives a right to keep the Senate full by appoint- ments, and nothing more. be vending Again, the next clause says, ‘‘that the Senator shall be an inhabitant of that State for which he shall be chosen’’—not appointed. In section 4, it is provided again, “The times and places and manner of holding elections for Senators and Repre- sentatives shall be prescribed in each State by the legislature thereof; but the Con- gress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”’ In every mention in the Constitution of the creation of Senators, but one, an elec- tion is contemplated. Nor is the argument that no State without its consent shall be deprived of its suf- frage in the Senate of any greater force. It almost excites a smile to suggest the idea that a State is deprived by the action of Congress, in any possible way, of her equal suffrage in the Senate if her legislature refuses to elect a Senator and send him here, or if the governor, in the case of a failure of the legislature to elect, shall refuse to appoint a Senator and send him here. Both of these things have happened, and nine States at different times have been for one or more years with but one Senator in these Halls, and no harm happened to State or nation. If a man refuses to go to the ballot box and vote it can hardly be said with any show of propriety that he is ‘*deprived’’ of his suffrage. He deprives himself. Much is said of the danger and inconvenience arising from the fact that a State would have but one Senator for a short period in this body. It is thé opinion of the undersigned, deliberately and solemnly given, that the danger arising in such a manner is not for a moment to be compared with the danger which comes from any departure from the Constitution of the country, in any form, or upon any pretext whatsoever. We know too well that every one of these becomes the basis for a new and wider departure and a justifica- tion for any and all violations of the organic law. We can not but regard as monstrous the doctrine that, while in construing a simple instrument between individuals concerning property, you must give effect to every word, if possible, and make general terms to be limited and controlled by specific words, yet, in construing this great contract, this fundamental law, upon the observ- ance of which shall depend the perpetuity of a great nation, such construction may be given as shall defy all the canons of the courts and destroy specific words of plain and obvious meaning. No stab.more vital could be inflicted upon the very exist- ence of the American Union. Nor can we tolerate the idea that we are in any case at liberty to compel a construction of the Constitution in a manner opposed to a clear meaning of particular words and phrases. It is fraught with the elements of tyranny and of destruction to the Government established by that Constitution, and can be justified by no supposed necessity whatever. The spectacle here presented of three States, at the same time, and in the same manner, and by the same or similar combinations, refusing to perform their consti- tutional duty of electing Senators to this body, for the purpose of throwing the appointment into the hands of the executive under the vicious precedents which have lately been established, is little short of a scandal upon constitutional govern- ment. It enables us to see with what ease a few ambitious and aspiring men in every legislature, by a combination with the executive, can defeat the will of the people and the plain purpose of the Constitution. In the case of Mr. Allen the vacancy existed while the legislature was in session. In the case of the others, Mr. Mantle and Mr. Beckwith, the legislatures of their States adjourned the day hefore the vacancies occurred, despite their sworn duty, both under the Constitution and the act of 1866, to provide for filling those vacan- cies during their sessions. If legislatures can thus be ae to tamper with the Constitution and laws of their country and be rewarded with success and impunity, we respectfully submit that a great blow has-been inflicted upon the good order and legal government of our eountry and the permanency of its institutions. In the discussion of this question in the debates hitherto much importance has been attached to the meaning of the word ‘“‘happen.’’ We deem it impossible to escape its original and plain meaning. That meaning is to be found in the dictiona- ries of our tongue. According to Webster it is the intransitive verb based upon the old Saxon noun hap, defined to be ‘‘that which happens or comes suddenly or unex- pectedly;’’ also, ‘‘the manner of occurrence or taking place; chance; fortune; acci- dent; casual event; fate; lot.” The verb ‘‘to happen,” from the noun hap, defined by same, first, ‘‘to come by chance; to come without previous expectation; to fall ’ out;’’ second, ‘‘to take place; to occur,’’ and the example given under the second LEE MANTLE, OF MONTANA. 65 ae is, ‘‘ They talked together of all these things which had happened.” (St. uke. To the same effect is the Century Dictionary, the noun ‘‘hap’’ being defined to be ‘chance; luck; fortune,’’ and the intransitive verb ‘‘ happen’’ means by same, first, “to occur by chance; occur unexpectedly or unaccountably; in general, to occur; take place;’’ second meaning, ‘‘to chance; be by chance or unexpectedly; as, he happened to be at home.”’ The Imperial Dictionary says of the noun ‘‘ hap”’ that it means ‘‘ that which takes place or comes suddenly or unexpectedly; ’’ also, the manner of occurrence or taking place; chance; fortune; accident; casual event; vicissitude; and the intransitive verb “happen,’’ by this authority, ‘‘to happen; to befall; to come by chance.” As apropos to this word it may be well to refer to another rule of construction, to the effect that the intent of a legislature is to be found in the ordinary meaning of the words of the statute. (Woodworth v. State, 26 Ohio.) It is thus clear by authority what is a matter of common knowledge, that the primary and ordinary signification of the word ‘‘happen’”’ relates to that which is unexpected or accidental, and that its use as synonymous with ‘“‘take place” or “occur’’ is secondary. The accepted canons of construction require that unless there is an indication in the text construed that the meaning of a word therein used is other than the ordinary one, it must be taken to have been used in its ordinary sense. The majority insist that the word ‘‘happen”’ in the clause of the Constitution in question is used in its secondary meaning of ‘‘ take place’ or ‘‘ occur.” But in this the undersigned can not concur. They feel constrained, inasmuch as the Constitution itself has not made clear that the word is used in any other than its ordinary sense, to attribute to it that ordinary meaning. That meaning of the word happen controls the scope of the word ‘‘ otherwise,’’ so that the clause in question must be read according to the ordinary meaning of this word ‘‘ happen,”’ thus: ‘‘And if vacancies unexpectedly occur by resignation, or otherwise, during the recess of the legislature of any State,” etc. It is obvious in this reading that the word other- wise refers to vacancies that unexpectedly occur. In applying these definitions and legal rules to the clause we are discussing, if the words ‘‘or otherwise’’ are not limited to vacancies occurring in a manner similar to a ‘‘resignation”’ of a Senator, it would seem impossible to make an idea plain by the use of language. It can not refer to a vacancy occurring by the regular expira- tion of a term. That suggestion is excluded by the previous mention in special words of those terms, provision in like special words being made for filling them; therefore the next clause is independent and entirely disconnected from that pre- ceding it, inasmuch as it refers and must refer to the filling of a vacancy happening otherwise than by the expiration of a oped term. The enlarging or general words used by the authorities must relate to the same kind of things to which the special words relate. They must be ejusdem generis, as the law says. Now the only possible kindred between the accidental and the regular termination of Senatorial seat is that they are both vacancies, but they are not eyusdem generis, in that the one is a vacancy created by law and the other isa vacancy created by accident, and are entirely differ- ent in their legal effects. The one is a basis for the exercise of executive power; the other is not. Apropos to the argument of the controlling purpose of the Constitution being to keep the Senate full—suppose the governor of a new State should appoint two Sena- ators to begin with and send them heré with their credentials, alleging that there was a vacancy, and with or without an apology for the absence of a legislative elec- tion? Must we receive them because of the importance of keeping the Senate full; or because without its consent we must not deprive a State of its equal suffrage in the Senate? Surely it will not be so contended. It has been decided, and we believe at the present moment the contrary is not contended by anyone, that if the governor of a State has exercised his power of appointment until the meeting of the legisla- ture, and the legislature has assembled and adjourned without filling that vacancy, that the governor can not again exercise the appointing power. This was decided in the case of Jared Williams, from New Hampshire, 1854, and so far ag we can learn has never been overruled. Mr. Edmunds admitted this in the discussion of the Bell case. Mr. Wadleigh admitted this in the discussion of Mr. Cameron’s bill, which was intended to cure the defect caused by the adoption of the new constitution of New Hampshire, which prevented an election of a Senator at the proper time. Mr. Blaine admitted it in the same discussion. Mr. Edmunds’s language is as follows: ; ‘The Constitution is looking to have each State represented in this body all the time, and by some method that the Constitution provides and looks to to do it, and, there- S. Doc. 11——5 66 SENATE ELECTION CASES. fore, when it uses the word “otherwise,” it uses the comprehensive term, so that, in whatever way the State ceases to have opportunity to express its full voice here in this council of States, it shall be filled temporarily by the governor until the legisla- ture, the chief and sovereign power in the State, at its next meeting can have an opportunity to fill it. Then, if they fail in their constitutional duty, the Constitution as it was made has not thought fit to give the governor any other power. That is the state of the case.’’ If this be true what becomes of the argument? ; The long and the short of it, as was stated by Mr. Carpenter in the discussion of the Bell case, is simply ‘‘that the Constitution of the Union guaranties to every State the right of perpetual representation in this body.’’ There is no other guaranty on the part of the Constitution toward a State representation in theSenate. If the State neglect or refuse to avail itself of that right there is no obligation on the part of the Senate or of any other authority to force or compel by forced construction or any other means to insure that perpetual representation than simply this plain provision of the Constitution. We can neither compel a legislature to elect, nor a governor to appoint. Ina government based on the consent of the governed something must necessarily be left to the patriotism and common sense of those to whom the govern- ment is intrusted. The precedents set by this body upon the subject of executive appointments are quite numerous. Theoldest case was that of Kensey Johns, of the State of Delaware. He was appointed by the governor to fill a vacancy occasioned by the resignation of George Read, in December, 1793. The legislature met in January, 1794, and adjourned in February of the same year without having elected a successor to Mr. Read. Mr. Johns was appointed by the governor on the 19th of March to fill said vacancy. He was refused his seat on the ground that since the occurrence of the vacancy a session of the legislature had intervened. The vote for the resolution refusing him his seat was 20 ayes to 7 nays. Among those participating in this early case in 1794 were several Senators who had taken part in the formation of the Con- stitution, as we are informed. The next case was that of Mr. Tracy, from Connecticut, whose term expired March 8, 1801, who was appointed his own successor by the governor of the State on the 20th of February, 1801, and appeared to take his seat on March the 4th follow- ing. He was admitted by a vote of 13 yeas to10 nays. It appears that there was little or no debate. From 1799 to 1817 it appears that ‘several Senators, by appoint- ment, were sworn in without objection. These, though fairly citable for the purpose of showing the opinion of the Senate at that time, can not properly be cited as adjudi- cated cases. This admitting, without objection, such Senators, received its death blow in 1814 by the discussion of Mr. Gore’s resolution concerning the President’s ower to fill original vacancies. Although they were never finally acted on, the ight thrown on the subject no doubt influenced the subsequent action of the Senate. The next, and perhaps the leading case, which was fully and ably discussed and solemnly decided, was that of James Lanman, of Connecticut, in 1825. Mr. Lan- man’s term expired March 3, 1825; on March 4 of the same year he was appointed by the governor to fill the vacancy. His credentials were dated February 8, but he appeared to take his seat at an extra session of the Senate convened by the President on March 4. His credentials upon objection were referred to a special committee, Senators Eaton, Edwards, and Tazewell, which committee reported the facts and precedents, but divided as to conclusions, the majority of the committee, Eaton and Tazewell, favoring the rejection of Lanman, the minority, Edwards, favoring his admission toa seat. Whereupon Edwards submitted, not as the report of the com- mittee, but on his own account, the following resolution: “Resolved, That Hon. James Lanman, appointed a Senator by the governor of the State of Connecticut, be now admitted to the oath required by the Constitution.”’ And the vote being taken, after discussion, the resolution was rejected, yeas, 18; ee eee the majority of the select committee, Eaton and Tazewell, voting in the negative. The case of Ambrose H. Sevier, from the State of Arkansas, came up at a special session of the Senate in March, 1837. The State of Arkansas had been admitted to the Union in June, 1836, and in October of the same year the legislature elected Ambrose H. Sevier and William S. Fulton Senators. On the allotment of these Senators to their respective class, as required by the Constitution, Mr. Sevier was placed in the class whose term expired on the 3d of March, 1837. The legislature of Arkansas, though in session at the time, had no opportunity to fill the vacancy, having adjourned before the result of the allotment at Washington became known to them. Mr. Sevier was appointed to succeed himself and fill the vacancy occa- sioned by drawing that lot. His credentials were dated January 17, 1837, and at the LEE MANTLE, OF MONTANA. 67 special session in March, after the occurrence of the vacancy, his credentials were referred to the Committee on Judiciary for special report. ‘That committee decided that his case came fairly within the provisions of the Con- stitution contained in.the third section of the first article, which declares ‘‘that a vacancy Jeppened by resignation or otherwise,’’ and reported a resolution that he be permitted to take the oath required by the Constitution, which resolution was adopted—yeas, 26; nays, 19. The committee consisted of Messrs. Grundy, Chit- tenden, Morris, King of Georgia, and Wall, and they based their report upon the oe that the vacancy was occasioned by the lot which assigned the short term to r. Sevier, and, therefore, was a happening within the meaning of the Constitution. They reaffirmed and acquiesced in the doctrine laid down in the Lanman case, and declared that by making this decision they did not call its correctness in question. The principle asserted in that case is, said the committee, ‘‘that the legislature of the State, by making elections themselves, shall provide for all vacancies which may 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.”’ This decision of the Lanman case was acquiesced in for about fifty years, being reaffirmed again and again. So well was it recognized and obeyed that in nine dif- ferent States between the years 1843 and 1859 the governors thereof refused to appoint Senators, the legislature having failed to elect. In 1879 the case of Charles H. Bell from New Hampshire came up for considera- tion. Mr. Bell was peas by the governor to fill a vacancy happening during the recess of the legislature by the expiration of Mr. Wadleigh’s term on March 3, 1879. By a change in the constitution of the State of New Hampshire, the date of the election of the legislature for that State, and of its subsequent assembling, was so changed as to ae it impossible for the legislature last preceding the election of the Senator to fill the vacancy occasioned by the expiration of Mr. Wadleigh’s term, as required by the act of 1866, thus leaving a vacancy between the beginning of the new term and the assembling of the legislature which had been chosen next preced- ing the commencement of said term. Mr. Bell was appointed to fill this vacancy. After discussion he was admitted, but the undersigned contend that this was not an overruling of the long-established and acquiesced-in principle of the Lanman case, because the legislature of New Hampshire had not ia the opportunity to elect a Senator. By the act, of 1866 the outgoing legislature could not make the election because it was not the one elected next preceding the vacancy. The legislature elect could not choose the Senator because, by the constitution of New Hampshire, it pout not assemble until June following the vacancy; so the legislature was in no fault. The case of Blair was on all fours with Bell, being appointed by the governor of New Hampshire under precisely the same circumstances, and, of course, followed the decision in the Bell case. It may be said, therefore, generally, that the first well-debated and solemnly decided case by those who were near to the framers of the Constitution, took decided ground against the power of the governor to appoint, where it was possible for the legislature to perform its duty; and with a few excep- tions between the year 1800 and 1817, the acquiescence in the doctrine established by the case of Kensey Johns was unbroken, down to the year 1879, if it was broken then, by the admission of Mr. Bell, and we insist it was not for the reasons above stated. The minority report of Senators A. P. Butler and J. A. Bayard in the case of Samuel S. Phelps, which was sustained, denying Mr. Phelps his seat, is well worthy of consideration. They say: ‘“‘The Senate of the United States is composed of organized constituencies—the State legislatures; to them belong the power primarily of electing their Senators when they are in session, at the happening of vacancies, at their first meeting when it happens in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. Their right and authority to fill or supply vacancies, which have been primarily filled by executive appointment, are as absolute and exclusive as was their right in an original election. When their power is brought into existence, it must supersede all others, with this qualification, and that according to precedent, they have a session to make the choice. In our view it does not depend on the actual exertion of the power to elect, but upon its existence. A Senator, under an executive appointment, may or may not represent the political views of his State. He may be the mere personal favorite of the governor. The Senate, as far as prac- ticable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union.’”’ (See Taft Election Cases, p. 18. The Facaiena: therefore, asserting neither that the Constitution should be 68 SENATE ELECTION OASES. strictly constructed nor freely construed, but that it should be construed according to the usual and accepted rules of interpretation, so as to give effect to its plain and unmistakable meaning; and believing earnestly that an executive appointment to fill a vacancy caused by the expiration of a regular term of a Senator, the legisla- ture of the State being in session at the time when by law it should have filled such vacancy itself, and failing to perform that duty is not within the scope and meaning of the power granted to State executives by article 1, section 3, of the Constitution, submit the following resolution: Resolved, That the Hon. Lee Mantle is not entitled to take his seat in this budy as a Senator from the State of Montana. Z. B. VANCE. GEORGE GRAY. JOHN M. PALMER. JOHN H. MITCHELL. PROCEEDINGS IN THE SENATE. The resolution reported by the Committee on Privileges and Elections in the case of Lee Mantle was the subject of debate in the Senate March 29, 1893 (Cong. Rec., vol. 25, pp. 38-47), March 30, 1893 (Ibid., pp. 50-66), April 3, 1893 (bid., pp. 68-74), April 4, 1893 (Jbid., pp. 75-79), April 5, 1893 (Zbid., pp. 80-89), April 6, 1893 (Ibid., pp. 93-96), August 7, 1893 (Ibid., p. 225), August 14, 1893 (Ibid., pp. 289, 290), August 15, 1893 (Ibid., pp. 332-337), August 16, 1893 (Ibid., p. 393), August 17, 1893 (ne, ae August 21, 1893 (Ibid., pp. 540-545), and August 23, 1898 (Ibid., pp. 676-688). {Extracts from remarks of Mr. Pugh in support of the resolution that Mr. Mantle be admitted to a seat as a Senator from the State of Montana. Found in the Congressional Record, vol. 25, pp. 38-40.] “Mr. President, the importance of the question presented by the reports of the majority and minority of the Committee on Privileges and Elections will be con- ceded, and the necessity for a solution of it by the Senate that will be accepted here- after as final can not be questioned. The conditions and results inseparable from the discussion, consideration, and determination of the right of the appointee of a governor to fill the vacancy existing in the Senate have unfortunately been influ- enced more or less by the fact that the appointee was a Democrat or Republican, as is shown by the division of the votes of Senators on party lines; and when once committed it is difficult for the Senator, on reconsideration of the same question, to give due weight to arguments against the soundness of his former decision. The question as it is now presented is freer from political surroundings and in a better condition to be decided on its real merits than at any time when heretofore determined. ‘The first inquiry to which I direct the attention of the Senate is as to the facts in each of the three cases of the States of Montana, Wyoming, and Washington. In each of the cases the terms of the Senator elected by the legislature of his State expiréd on the 4th day of the present month. In each of the States the legislature had met and organized some time prior to the 4th of March, when the seat of one of the Senators Chae each State was vacated by operation of the Constitution. In each of the States the legislature, in accordance with the act of Congress of 1866, proceeded to elect a Senator to fill the vacancy, and continued in daily session to elect until the existence of the legislature was terminated by an express provision of the constitution of each State, and when thus terminated the power of the legislature in each State expired, leaving the seats of each of the Senators vacated and the three States without their constitutional representation. “In the case of Montana and Wyoming, the sessions of the legislature expired by constitutional limitation a few days before tne 4th of March, when the seats of the Senators were vacated. In the case of the State of Washington, the legislature expired by constitutional limitation after the 4th of March; so that in the former two States the vacancy occurred after the termination of the life of the legislature, and, of course, during its recess, while in the State of Washington the vacancy in the Senate occurred while the legislature was in session. ‘The foregoing are the undisputed facts and all the facts upon which the question of constitutional law arises—whether the governors of the States are invested with the power of filling the vacancies in the Senate of the United States admitted to exist in the manner and under the circumstances I have stated. We can look nowhere for the power to fill these vacancies in the Senate except in the Constitution of the United States. “In the first article and third section of the Constitution we find the following words: ‘¢ «The Senate of the United States shall be composed of two Senators from each LEE MANTLE, OF MONTANA. 69 State, ay by the legislature thereof for six years, and each Senator shall have one vote. ““‘Immediately after they shall be assembled in consequence of the first elec- tion, they shall be divided as equally as may be into three classes. The seats of Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the ehgiation of the sixth year, so that one-third may be chosen every second year; and if vacancies happen, by resignation or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.’ ‘The above quotations are all the provisions of the Constitution relating to filling and keeping the Senate full of two Senators from each State at all times. It will be observed that there are only two modes provided of securing to each State at all times a full representation of two Senators: (1) By having them -‘ chosen’ perma- nently by the legislature of the State, and (2) when ‘vacancies happen, by resig- nation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legisla- ture, which shall then fill such vacancies.’ “* How is the representation kept full in the House of Representatives? The second section of the Constitution provides for representation in the House on the basis of © population, and that ‘each State shall have at least one representative,’ and ‘when vacancies happen in the representation from any State the executive authority thereof shall issue writs of election to fill such vacancies.’ ‘*¢ ach House shall be the judge of the elections, returns, and qualifications of its own members.’ ‘* How are all the offices of the United States kept full so that the public service suffer no detriment? . ‘*The second section of Article II provides that the President ‘shall nominate, and by and with the advise and consent of the Senate shall appoint * * * all officers of the United States,’ and ‘the President shall have power to fill all vacan- cies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.’ “‘The foregoing extracts from the Constitution embrace everything in it relating directly or indirectly to every aspect of the questions before the Senate. The next source of information to which I call the special attention of the Senate is what was said and done in the convention that framed the above provisions of the Constitution to shed light on their objects and true meaning. “In Elliott’s Debates, found in the Madison Papers, at page 377, Mr. Rutledge, on the 6th of August, 1787, reported from the committee of detail as follows: “«¢ Article V, section 1. The Senate of the United States shall be chosen by the 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. Each member shall have one vote.’ ‘“‘This provision, reported by the committee of detail, was under consideration on the 9th of August. The whole proceeding on Article V, section 1, as I have quoted it, appears as follows, just as it stands in the debates: “¢*Mr, Wilson objected to vacancies in the Senate being supplied by the executives of the States. It was unnecessary, as the legislatures will meet so frequently. It removes the appointment too far from the people, the executives in most of the States being elected by the legislatures. As he had always thought of the appoint- ment of the executive by the legislative department wrong, so it was still more so that the executive should elect into the legislative department. “«*Mr. Randolph thought it necessary in order to prevent inconvenient chasms in the Senate. In some States the legislatures meet but once a year. As the Senate will have more power and consist of a smaller number than the other House, vacan- cies there will be of more consequence. The executives might be safely trusted, he thought, for so short a time. : “Mr. Eitsworta. It is said that the executive may supply vacancies. When the legislative meeting happens to be near the power will not be exerted. As there will not be but two members from a State, vacancies may be of great moment.’ “You will see that the word ‘happens’ is used py Mr. Ellsworth in reference to the meeting of the legislature, which is always fixed by law. ‘¢¢Mr. Wittiamson. Senators may resign or not accept. This provision is there- fore absolutely necessary. «On the question of striking out ‘ vacancies shall be supplied by the executives,’ the vote stood—Pennsylvania, aye—1; New Hampshire, Massachusetts, Connecticut, New J aes Virginia, North Carolina, South Carolina, Georgia, no—8; Maryland, divided. 70 SENATE ELECTION OASES. ‘*¢My, Williamson moved to insert after ‘ vacancies shall be supplied by the exec- utives,’ the words, ‘unless other provision shall be made by the legislature of the State.’ “ “This decision seems to have been generally acquiesced in since that time; nor isit intended by this 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 116 SENATE ELECTION CASES. ‘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 ses- sion, could not supply the vacancy; and the case, in the opinion of the committee, comes fairly within the provisions of the Constitution contained in the third section of the first article, which declares, ‘‘ and if vacancies happen by resignation or oth- erwise 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.”’ It will thus be seen that Mr. Grundy understood the Lanman case to have been decided upon the principle announced above. The next case was that of Robert C. Winthrop, of Massachusetts, which was before the Senate on February 4, 5, and 7, 1851. (Taft’s Election Cases, pp. 10-12.) ‘‘Mr. Winthrop was appointed July 27, 1850, to fill a vacancy in the Senate hap- pening by the resignation of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the legislature to fill the unexpired term. February 4, Mr. Rantoul not having appeared to take the seat, Mr. Winthrop offered a resolution, which was agreed to, ‘‘That the Committee on the Judiciary inquire and report to the Senate, as early as practicable, at what period the term of service of a Senator appointed by the executive of a State during the recess of the legislature thereof rightfully expires.”” The committee reported that a person so appointed had a right to the seat until the legislature, at its next meeting, should elect a person to fill the unex- pired term, and the person elected should accept, and his acceptance appear to the Senate; that presentation of credentials implied acceptance; that these views were sustained by the precedents. The report was debated, but no action taken, the whole subject was laid on the table,’’ because, on February 7, 1851, Mr. Rantoul’s credentials were presented, and Mr. Winthrop thereupon vacated the seat. The next case is that of Archibald Dixon, of Kentucky, which was before the Senate in December, 1852. (Taft’s Election Cases, pp. 13-15.) The facts of this case were as follows: On December 17, 1851, Henry Clay was a Senator trom Kentucky, chosen by the legislature for a term of six years, which expired’on March 3, 1855. Being so a Senator, he resigned by a communication to the legislature, declaring that it was to take effect on the first Monday in September, 1852. The legislature then being in session, received the resignation, and chose Mr. Dixon to fill the vacancy thus to occur from the first Monday in September, 1852, to March 3, 1855. The legislature then adjourned. On June 29, 1852, during a recess of the legislature, Mr. Clay died, and the governor of Kentucky made a temporary appointment of Mr. Meriwether as a Senator from Kentucky to hold the seat until the first Monday in September, 1852, the date on which Mr. Clay’s resignation was to take effect. Mr. Meriwether immediately took the vacant seat and held it until Congress adjourned on the last day of August, 1852. On the reassembling of Congress, December 6, 1852, a Meriwether did not appear, and Mr. Dixon appeared and presented his creden- tials. Objection was made to Mr. Dixon’s taking the oath of office on the ground that the seat still belonged to Mr. Meriwether, the point being that Mr. Meriwether had been appointed to fill a vacancy happening by the death of a Senator and he hada right to the seat until the next meeting of the legislature, and that it was not in the power of the governor to limit the term of office until the first Monday in Sep- tember, 1852, the day on which Mr. Clay had declared his resignation was to become operative. The Senate held that Mr. Meriwether’s right to the seat expired on the first Monday in September, 1852, and that thereafter Mr. Dixon was entitled to it. This case establishes several principles. The first and most important is that if, while the legislature is in session, a Senator tenders his resignation to take effect at a date which will be subsequent to the adjournment of the legislature, the legislature can fill the vacancy which is to thus begin after its adjournment. This carries out the paramount idea and intention of the convention, already mentioned, to have the Senate kept filled with Senators chosen by the legislatures. The second principle established is that a Senator’s resignation can take effect in futuro; and the third is that if the Senator, after having so resigned, dies before the date fixed for the con- summation of the resignation, the legislature not then being in session, the governor can appoint. This case, in all its aspects, is adverse to the claims of Mr. Quay. The next case is that of Samuel 8. Phelps, of Vermont, which was debated in the Senate from January to March, 1854, and was finally disposed of on March 16, 1854. (Taft’s Election Cases, pp. 16-19.) “Mr. Phelps was appointed by.the governor of Vermont January 17, 1853, during MATTHEW 8. QUAY, OF PENNSYLVANIA. 117 the recess of the legislature to fill a vacancy in the Senate happening by the death of William Upham. is credentials were presented, and he took his seat January 19. The legislature met in October and adjourned in December without electing a Senator to fill the unexpired term. Mr. Phelps had held the seat during the remainder of the second session of the Thirty-second Congress, ending March 3, and during the special session of the Senate March 4 to April11. December 29 he again attended. January 4, 1854, the Senate resolved that the Committee on the Judiciary inquire whether he was entitled to retain his seat. January 16 the committee reported the resolution ‘that the Hon. Samuel S. Phelps is entitled to his seat in the United States Senate.’ It was accompanied by a minority report adverse to the right of Mr. Phelps to a seat. March 16 the resolution reported by the committee was rejected by a vote of 12 yeas to 26 nays, and it was ‘Resolved, That the Hon. Samuel 8. Phelps is not entitled to retain his seat in the Senate of the United States.’ ’’ The resolution of inquiry, referred to above, was submitted by Mr. Seward, and was in the following language: ‘¢Whereas the Hon. Samuel 8. Phelps was appointed by his excellency the governor of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Sen- ate of the United States which had happened by the death of the Hon. William Upham, a Senator whose term of six years would have continued until the 4th day of March, 1855; and ‘“Whereas it is understood that since that temporary appointment was made the legislature of Vermont has been convened at their annual session and has adjourned without filling such vacancy: Therefore, ‘Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. Phelps is entitled to retain his seat in the Senate of the United States.” This case was very fully considered by the committee and by the Senate. As will be seen, Mr. Phelps was denied his seat because, between the date of his temporary appointment and the action of the Senate, the legislature of Vermont had convened and adjourned without filling the vacancy. The case of Jared W. Williams, of New Hampshire, was before the Senate in July and August, 1854, was, in substance, the same as the case of Mr. Phelps explained above, and was decided in the same way. ; The cases of Charles H. Bell and Henry W. Blair, of New Hampshire, which were before the Senate in 1879 and 1885, respectively, may be considered together. (Taft’s Election Cases, pp. 26-47.) Each of these appointments was made to fill a vacancy at the commencement of a full term. The act of Congress of July 25, 1866, as will be remembered, provides that ‘‘the legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organi- zation thereof, proceed to elect a Senator in Congress,’’ etc. In 1878 the constitution of New Hampshire was changed so that its biennial legislatures were chosen in November, but were not allowed to meet in session until the following June. Thus in each of these cases the legislatures which, under the act of 1866, were bound to fill these vacancies had no opportunity to do so until some three months after they occurred. Under these circumstances it was decided that the governor had the right to make temporary appointments for this period of time. We thus see that in these cases the legislature had never had an opportunity to fill the vacancies which were supplied by temporary appointment by the governor. In the case of Horace Chilton, of Texas, disposed of in January, 1892, and reported in Taft-Furber Election Cdses (pp. 48-51), Mr. Reagan, an elected Senator from the State of Texas for a term of six years, resigned his office and the resignation was to take effect June 10, 1891. The executive of Texas, after the receipt of the resigna- tion of Mr. Reagan and on April 25, 1891, appointed Mr. Chilton to supply the vacancy. The certificate recited that the appointment was to take effect June 10, 1891. The only point decided was whether the governor had the right to appoint in advance. The decision was in the affirmative. The legislature had never had an opportunity to fill this vacancy. Again, and finally, we can consider the cases of Lee Mantle, of Montana; John B. Allen, of Washington; A. C. Beckwith, of Wyoming, and Henry W. Corbett, of Oregon, together, the first three being before the Senate in 1893 and the last in 1898. All of these were appointments to supply vacancies of regular or full terms. In the cases of Mantle, Beckwith, and Corbett the legislatures which should have filled the vacancies had met and adjourned without doing so. In the Allen case the legislature was in session on the 4th of March, the date the new term commenced, and remained in session until the 9th of that month, and Mr. Allen was appointed on the 10th. In each of the cases the claimants were refused seats, or, to state it more correctly, the claimants in the Mantle, Corbett, and Allen cases were refused seats, and the Beckwith case was not pressed to a vote, Mr. Beckwith having abandoned his claim. 118 SENATE ELECTION CASES. it will be noticed that the facts in the Allen case are identical with those in the Quay case. The statement of these cases and precedents shows that from the beginning of the Government down to the present time the Senate has never recognized the right of a State executive to make a temporary appointment where the vacancy happened or occurred during a session of the legislature. It shows, further, that for seventy-five years the Senate has refused to recognize the right of a State executive to make a temporary appointment, even where the vacancy happened or occurred during a recess of the legislature, if the legislature, either before or after it occurred and prior to the date of the appointment, had had an opportunity to fill it. The fundamental principle thus established is that if the legislature, either before or after the happening of a vacancy, has had an opportunity to fill it, then there is no power in the State executive to appoint. The result is fatal to the claims of Mr. Quay. No danger or evil has resulted to the Government from the enforcement of this principle. We therefore submit that the Senate, for its own honor and dignity, should stand by its previous solemn and deliberate decisions, and recommend tlie adoption of the following resolution: “ Resolved, That the Hon. Matthew S. Quay is not entitled to take his seat in this body as a Senator from the State of Pennsylvania.”’ DONELSON CAFFERY. E. W. PETTUS. THOS. B. TURLEY. W. A. HARRIS. I concur in the recommendation of the foregoing report. J. C. BURROWS. VIEWS OF THE MINORITY. Matthew 8. Quay claims to be admitted to a seat as a Senator from Pennsylvania by virtue of an appointment by the governor of that Commonwealth, dated April 21, 1899. Mr. Quay had held the seat for the term ending March 4, 1899, by election of the legislature. The legislature who were authorized to elect his successor met on the 3d day of January, 1899, and adjourned without such election on the 20th day of April, 1899. The Constitution of the United States provides (sec. 3, Art. I): “If vacancies happen by resignation, or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.’ The constitution of the Commonwealth of Pennsylvania provides (sec. 4, Art. II): “In case of a vacancy in the office of United States Senator from this Common- wealth, in a recess between sessions, the governor shall convene the two houses, by » proclamation on notice not ee sixty days, to fill the same.” It is claimed that the governor under this provision of the constitution was bound to call the legislature together forthwith. It is admitted that this was not done. It is claimed, therefore, that the effect of this failure was to deprive the governor of the power of appointment, if any, conferred upon him by the Constitution of the United States. We are unable to accept this view. First. It seems to us that it was a fair question whether the governor was bound to call the legislature together at once in all cases, without discretion. For instance, if the vacancy had occurred so near the time for a regular session that it would be inconvenient and not worth while to anticipate it, or if the legislature had just adjourned without effecting a choice and the governor felt reasonably certain that it would be impossible to effect an election if they were assembled, it might be fairly claimed that he was not bound to issue a call from which no practical result of any value would be likely to come. It might well be that no session of the Senate of the United States was likely to take place in which a person chosen could take a seat before the regular time of assembling the legislature. Now, the question whether the governor had a discretion in any case or whether the injunction of the State constitution is absolute and peremptory is one which the governor must decide, and we can not, it seems to us, hold thatan erroneous decision on his part would deprive the State of Pennsylvania of its right to be represented in the Senate in a constitu- tional way. It seems to us that this clause of the constitution of Pennsylvania must of necessity be interpreted by the authority in Pennsylvania charged with its execution, and that the Senate of the United States can not go behind the judgment of that officer in regard to its meaning and application. Second. It seems to us that, whatever may have been the duty of the executive of Pennsylvania, the constitution of Pennsylvania itself can have no effect upon the MATTHEW 8. QUAY, OF PENNSYLVANIA. 119 lawful appointment of a Senator of the United States. That is provided for by the Constitution of the United States. The Constitution of the United States declares that the governor may appoint under certain circumstances. It declares also that ‘this Constitution shall be the supreme law of the land, anything in the constitu- tion or laws of any State to the contrary notwithstanding.” So if there be such a vacancy as is described in the Constitution, the Constitution providing that in such case the governor may appoint, a provision of the constitution of Pennsylvania that he shall not appoint or that he shall do something else, can not have the effect to deprive him of ae power under any circumstances. We are left, therefore, to the consideration of the meaning of the provision of the Constitution of the United States above cited. This question, in our judgment, isa very simple one. Does the language of the Constitution of the United States mean just what the constitution of the Commonwealth of Pennsylvania says: ‘‘In case of a vacancy in the office of United States Senator in a recess between sessions,’’ or does it mean that the vacancy must be one which comes by chance, so that it does not apply at all to the case of a vacancy at the beginning of a term, which does not come by chance but is foreseen and inevitable? TP the words have the former mean- ing, then all distinctions between cases where a legislature has been in session and those where a legislature has not been in session, between vacancies at the beginning of a term and vacancies beginning after the term itself has begun and the office for that term once filled, are without importance. We think that the former is the true meaning of the Constitution. We think that it was the intent of the Constitution to provide, as far as possible, that every State should have two Senators. First. The constitutional convention hesitated between conferring the power of appointing Senators upon the executive and the legislature of the State in the begin- ning. Like the legislature, the executive of the State was supposed to represent the . will of the people. Under the constitutional arrangements then existing, he appointed all State officers and appointed judges, who held their office for life. So there is no reason to suppose that they considered the executive an unfit instrument for such appointment. And they settled the question by giving the power of per- manent appointment to the legislature, and of temporary appointment to the executive. Second. We can conceive no reason likely to have influenced the framers of the Constitution for making a distinction between cases of vacancy occurring in one way or at one time and vacancies occurring in any other way or at any other time. The office of Senator may be at any time of infinite importance to the interests of a State. Upon a single vote may often depend and sometimes has depended the fate of meas- ures which would bring prosperity or misery into every workshop and almost every family in Pennsylvania. We do not believe that when the Constitution was enacted it would have occurred to anybody that if a Senator died within a week of the adjournment of the legislature, or at a time when there were three parties in the legislature who could not agree, or at a time when the two houses who formerly made an election by concurrent vote were of ways of thinking in politics so different that they could not be reconciled, that the State must remain unrepresented until a new legislature should be chosen. They meant, as we believe, that for the interest of the State and the interest of the whole country the Senate should always be full, so far as they could devise a consti- tutional mechanism to accomplish that purpose. The debates in the convention show, it seems to us, that such was the understanding of all the members. There is not the slightest suggestion of any distinction in the kind of vacancies which may be filled by the executive of the State. It is spoken of only as a scheme for filling vacancies without exception or qualification. Mr. Ellsworth says: “It is only said that the executive may supply vacancies. When the legislative meeting happens to be near, the power will not be exerted. As there will be but two members from a State, vacancies may be of great moment.” It will be noted that Mr. Ellsworth uses the word ‘‘happen”’ in reference to a fixed and foreseen event, viz, the time of the meeting of a State legislature. Mr. Williamson says: ‘‘Senators may resign or not accept. This provision, is, therefore, abSolutely necessary,” showing that it was in his mind that a vancancy occurring at the beginning of a term, when a Senator refused to accept, was within the contem- plation of the Constitution. Mr. Madison then (and it will be observed he is in this instance reporting his own remarks and his own purpose) says: ; ‘Mr. Madison, in order to prevent doubts whether resignations could be made by Senators or whether they could refuse to accept, moved to strike out the words after “‘vacancies’’ and insert the words ‘‘happening by refusal to accept, resignation, or otherwise.’’’ From this, in our judgment, it clearly appears that the words which it is now 120 SENATE ELECTION CASES. claimed qualify the universal words ‘‘ vacancies shall be supplied by the executive”’ were inserted for the distinct purpose and the only purpose of epee it clear that a person elected could lawfully refuse to accept, and that a Senator could resign. Mr. Gouverneur Morris declares the same reason. He says: : “This is absolutely necessary. Otherwise, as members chosen into the Senate are disqualified from being appointed to any office by section 9 of this article, it would be in the power of the legislature, by appointing a man Senator against his consent, to deprive the United States of his services.”’ . Now, can it be believed that language which, as its author states, was used for this purpos2 was intended to accomplish a much more important and totally different purpose, by providing that the executiye might appoint in some cases but not in others, and a motion supported by Mr. Ellsworth with the argument that as there will be but two members from a State vacancies may be of great consequence, was intended to provide, in substance, that a large number of vacancies should not be filled at all? Mr. Rutledge’s report: of the committee of detail, made in the convention August 6, 1787, was under discussion when Madison’s amendment was adopted. The provi- sion there was: ‘‘ Vacancies may be supplied by the executive until the next meet- ing of the-legislature.’’? So the committee of detail, consisting of Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson, were, as it appears, unanimously of opinion that the clause should read, ‘‘ Vacancies may be supplied by the executive until the next meeting of the legislature,’’ and that view was supported by the argu- ment that it was exceedingly important that every State should always have its full representation; and then the language was changed to read as it is now for the sole purpose, so far as was avowed, of affirming the right of a Senator to resign or decline. So it seems to us clear that the convention meant to use language which should give the executive this power whenever a vacancy exists. The next question is, Did they use apt language to convey that meaning? If it be true that the phrase used is a phrase which is commonly used as synonymous with “‘occur,”’ ‘‘happen to exist,’’ ‘‘exist,’’ if it happen that there be a vacancy, then the case is made out. Now, we affirm with great confidence that the phrase used in the Constitution is employed in ordinary usage to describe events that do not depend upon chance, and to describe a continuing condition without reference to the time or method of its origin. If the Fourth of July happen on Sunday, the coming of Sunday and the coming of the Fourth of July, the coincidence of those two things, is the result of fixed and unchangeable natural laws; and that word expresses not merely the beginning of the Fourth of July, or the beginning of Sunday, but the continued identity of the two periods of time described throughout their entire length. Indeed, the word ‘‘coincidence”’ is equivalent to the words ‘‘happening at the same time,’’ and is used to describe events that are not fortuitous. ‘‘Incido”’ means ‘‘to happen’’ and it also means ‘‘to exist.’’ Our lexicographers, Webster and Worcester, and the Century Dictionary, all give as one of the meanings of the word ‘‘happen,”’ ‘‘occur.”” The English translation of the Scriptures, which is our standard of good usage, in the twenty-second verse of the forty-first chapter of Isaiah, “Shew us what shall happen,’’ is intended to include everything that is to take place hereafter. It applies to everything that is to exist in the future. And the text goes on to explain what is meant, for it adds, ‘‘Shew the things that are to come hereafter, that we may know,” etc. The Century Dictionary states that the word ‘‘happen”’ is equivalent to ‘‘it may be.”’ In the debate on the Sevier case in the Senate in 1836, John Quincy Adams said he believed, in relation to offices, that every one happens to be vacant which is not. full, and that he believed was the meaning and sense of the Constitution, whether the vacancy occurred from casualty, the regular course of events, expiration of term, or other cause. This construction is fortified by the consideration that the same phrase is used in two other places in the Constitution, where it is now well settled that the words ‘‘if a vacancy happen’’ mean what we think they mean here, viz, “‘if a vacancy hap- en to exist.’”” The Constitution provides that ‘‘the time, places, and manner of olding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof, but the Congress may, at any time, by law make or alter such regulations.’”” The further provision is: ‘‘When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.’’ Now, that phrase has been uniformly held, as we suppose, without question to include all vacancies, whenever they begin and from whatever conditions they are produced. It is the only authority given to thé execu- tive of the State on the subject; and yet, in the old days, where a majority of votes was required to elect, the executive always, and in some cases repeatedly, in rela- tion to the same vacancy, issued his writ under this constitutional power. It made MATTHEW S. QUAY, OF PENNSYLVANIA. 12] no difference whether it occurred by chance or in the beginning-of a term or by death or expulsion. The phrase ‘‘when vacancies ha; pen’? means ‘‘ whenever there are vacancies.”’ Now, it is true this phrase is not limited by the words ‘‘during the recess of the legislature.’’ But if, when the word ‘‘ happen”’ is used without limitation, it applies to every occasion and to the whole time when there is a vacancy, surely the words ‘if vacancies happen during the recess of the legislature’? apply to every recess, to the whole recess, and to all the time when, under whatever conditions or from whatever causes, there is a vacancy during any recess. It will be noticed also that the Constitution speaks in terms of a single State—‘‘if vacancies happen during the recess of the legislature of any State,” and it provides, ‘‘the executive may make temporary appointments’’—not may make a single appointment. It would seem from this language that the Constitution had in mind the possibility of repeated appointments by the executive. gain, the provision for appointing executive officers has been held, in accordance with the opinion of Attorneys-General Taney, Wirt, and Devens, and the opinion and practice, we suppose, of every President of the United States from the beginning, to mean the same thing. The provision is: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session.” Now, it is well settled that if an official die during the session of the Senate, and the office is not filled before adjournment, the President, under this clause, may appoint in vacation. If a new office be created by act of Congress during a session, the President may appoint persons to fill it, after the Senate has adjourned, during the recess. In other words, the words ‘‘all vacancies that may happen during the recess of the Senate’? mean ‘‘whenever there is a vacancy during the recess of the Senate.’’ It is inconceivable that the convention intended in the use of the same language a simple general provision in one case and a provision to. be applied fettered by refinements and distinctions and with large exceptions in another case. It was said in argument at the hearing that this view had never been accepted by the Sen- ate, but that claim is in conflict with the uniform history of the country for more than a generation. The Senate and the House of Representatives not only have for many years let such appointments pass without question or remonstrance, but they provide salaries for officers so appointed, and, what is more emphatic still, as an expression of their assent and approval they create at almost every session of Congress new offices which they expect when they are created will. be filled for the first time by the President in vacation. The uniform course of our legislation establishes the construction that when a new office is created by law on the Ist of February and no action is taken by the President until after the 4th of March, when Congress adjourns, the words in the Constitution ‘‘all vacancies that may happen during the recess of the Senate’’ are uniformly held to describe exactly that case. Further, the language of the very clause in question can not be construed as the opponents of Mr. Guay would construe it, or in any other way than the undersigned construe it, without destroying its own purpose. If there be no power in the exec- utive of Pennsylvania to appoint a successor to Mr. Quay under this clause of the Constitution, there is no power in the legislature to choose such successor until the end of the term; and in every case where a Senator dies or resigns, where the legis- lature is not in session, or where, after such death or resignation, the legislature has met and adjourned without a choice, or wherever, at the beginning of a term, the vacancy remains unfilled, it must remain unfilled until the end of the six years, according to the logic of the majority of the committee. The Constitution confers upon the legislature— First. The power to elect Senators for six years—not for five years or for four years or fortwo years. Having made that provision, which relates solely to the full term, as its express language clearly indicates, then comes the provision with which we are now dealing: “‘If yacancies happen by resignation, or otherwise, during the recess of the legisla- ture of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”’ The vacancy which an executive might fill in vacation is the only vacancy which the legislature can fill when it meets. So that those persons who maintain the theory we are dealing with must either hold that the legislature of Pennsylvania can not, when it meets, elect a Senator, or must admit that the governor lawfully appointed Mr. Quay. We eal then, a clear purpose on the part of our Constitutional Convention to pro- 122 SENATE ELECTION CASES. vide that all vacancies shall be filled by the executive when no legislature is insession, apt language and language clearly adapted to that purpose introduced without objec- tion in the Constitutional Convention, accompanied by the statement of Oliver Els- worth of the great importance that no vacancy should be left unfilled, a change in that language on Mr. Madison’s motion for the purpose avowed by him of removing a doubt as to the right of a Senator to resign ora Senator-elect to decline, and no sug- gestion anywhere of a purpose of limiting the power of the executive or making any exception to it. We find next that the language newly inserted by Mr. Madison is language employed in ordinary usage to express the same meaning, and that it isemployed to express the same meaning in the same Constitution in two other important instances, both being instances where vacancies in public offices are to be filled. We find next that the purpose of the Constitution that there should be a Senate consisting of two members from each State will be interfered with and interrupted by the construction which denies the power to the executive to fill all vacancies whatever when there is no legislature. If that construction prevail, there must be frequently an interruption in the Senatorial office, and States must frequently be left without representation or with only partial representation inthe Senate. It is unnec- essary to dwell on the importance of a single vote in a body consisting, in the begin- ning, of but twenty-two Senators, and now consisting of butninety. In many impor- tant instances great measures have been determined by the casting vote of the Vice- President, which would have failed if there had beenasingle vacantseat. Instances have been very numerous indeed of important amendments which changed, or if they had eee would have changed, the character of great measures of legislation whose fate has been determined by a single vote. In Massachusetts a governor has twice been elected by a majority of one—in one year in the popular vote, in another year in the legislature. It is said that if the legislature has been in session after a vacancy and has failed to fill it the State is in fault; that the legislature has neglected its duty, and so it is not unjust that the State should suffer. There are two answers to this argument: First, that it is for the interest of the whole people that every State should be fully repre- sented; and, second, that there is no fault to be imputed to the legislature of a State or to the people, where a majority vote is required, if there be a failure to elect. Will anybody claim that the case of a failure to elect a President for want of a con- stitutional majority, a case provided for by conferring a power upon the House of Representatives voting by States, is the case of fault or negligence on the part of the people? If there be three parties holding different opinions in regard to great poli- cies which affect the interest, the honor, or the destiny of the Republic, and neither party can conscientiously surrender its honest convictions and aid in the establish- ment of a policy which it believes iniquitous or destructive, that is no fault and no neglect. It is inevitable from the constitution of human nature. In the beginning, the universal practice was to elect members of the House of Representatives only by a majority of the entire vote cast, and to elect Senators by a concurrent vote of two bodies who must agree to produce a result. It seems to us no valid reason can be given for supposing that if the two houses of a State legisla- ture, before the statute of 1866, failed to agree, the framers of the Constitution thought that it would be a just punishment that the State should be deprived of its equal voice in the Senate, or in case of an election on joint ballot, in later years, that there were three parties instead of two, so that there could be no majority, the State should be so punished. The cases where there are great political differences about public measures are few in comparison with the nonpartisan questions which come before the Senate, and the special interests of a State are much more likely to be affected by the latter than by the former. It is said that if there be a vacancy and the legislature meet and adjourn without filling it, if the power of appointment exist in the governor, there will be likely to be intrigue on the part of the executive or his political friends, so as to prevent a choice, and to enable him to appoint his favorite. But there is not the slightest his- torical evidence that any such idea occurred to the framers of the Constitution. It seems to us to be a refinement which they never would have considered, and which never should be considered by anybody in framing a constitution. Such intrigues can only be successful if they have the aid of some considerable political party. They would be quite as likely to desire to put over an election by which the office is to be permanently filled, whether the governor were to have power to fill the vacancy temporarily or no. Such intrigues, in the few cases where they are possi- ble, will be as likely to happen under one arrangement as under the other. But our constitutional arrangements are based, and must be based, on the theory that the executives chosen by the people will be, in general, upright, honorable, and consci- entious men, to whom such motives would be foreign and abhorrent. MATTHEW 8. QUAY, OF PENNSYLVANIA. 1238 These words, then, do not mean that the ear must come by accident when the legislature is not in session. Do they mean that the vacancy must begin when the legislature is not in session? There is a meaning, unquestionably, that may be given to the language which lends plausibility to the claim that it must be a fortuitous vacancy, although that claim is abundantly overthrown by the fact that the words are used frequently in our language in the other sense, that they are used twice in the Constitution in the other sense, and that the purpose of the Constitution would be defeated if they were not used in the other sense. But there is no such argu- ment in favor of the construction that the words ‘‘if a vacancy happen”? mean ‘“‘if a vacancy begin.’’ If the legislature adjourn on the 4th of March and do not meet again until the 1st of December, certainly a vacancy happens all through that inter- val, and there can be no reasoning that is not strained and far-fetched which can lead anybody to suppose that if a Senator died on the 3d of March and the legisla- ture adjourn on the 4th that it was the intention of the Constitution that the State should be left unrepresented. The Senator from Tennessee, Mr. Turley, in an able speech on the Corbett case, made in the Senate February 25, 1898, quoted with great effect the following lan- guage of Mr. Webster: “The Constitution utters its behests in the name and by authority of the people, and does not exact from States any plighted public faith to maintain it. On the contrary, it makes its own preservation depend on individual duty and individual obligation. Sir, the States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure. ‘The Constitution has taken better care of its own preservation. It lays its hand on individual conscience and individual duty. It incapacitates any man to sit in the legislature of a State who shall not have first taken his solemn oath to support the Constitution of the United States as they are to support their own State consti- tution. Nay, sir, they are as solemnly sworn to support it as we ourselves are, who are members of Congress. “No member of a State legislature can refuse to proceed, at the proper time, to elect Senators to Congress or to provide for the choice of electors of President and Vice-President any more than the members of this Senate can refuse, when the appointed day arrives, to meet the members of the other House to count the votes for those officers and ascertain who are chosen. In both cases the duty binds, and with equal strength, the conscience of the individual member, and it is imposed on all by an oath in the same words. ‘Let it, then, never be said, sir, that it is a matter of discretion with the States whether they will continue the Government or break it up by refusing to appoint Senators and to elect electors. They have no discretion in the matter. The members of their legislatures can not avoid during either, so often as the time arrives, without a direct violation of their duty and their oaths—such a violation as would break up any other government.” That language seems to the undersigned a great reenforcement of their position. If it be true, and it is true, as Mr. Webster says, that the States can not omit to appoint Senators; that it is not a matter resting in State discretion or State pleasure; that the Constitution has taken better care of its own preservation and lays its hand on indi- vidual conscience and individual duty, then it seems to us impossible to believe that the Constitution has not provided a method of filling vacancies when the legislative power fails. It is individual conscience and individual duty on which the great expounder of the Constitution declares the Constitution lays itshand. But it isclear that. individual conscience and individual duty must be totally inadequate to keep the seats in the Senate full, except as they are the conscience and the duty of the executive. The legislative power is never exercised by an individual. It could formerly only be exercised by the concurrent action of two bodies, each containing many individuals, each with a separate conscience, each with its own view of duty, which in many cases it will be found impossible to reconcile. Many instances have occurred in our history when a State legislature could not elect a Senator unless many of its members should cast their vote in gross violation of conscience and duty. And it was for that case, as well as other cases of vacancy, that it was the purpose of the Constitution to provide. It is not the ending of the term; it is not the failure of the legislature to elect; it is not the fact that the legislature has been in session after the vacancy began and has failed to elect, but the absence from the office of any person authorized to fill it to which the word ‘‘happen,’’ which expresses contingency, is applied. It is certain that terms will end. It is quite probable that there will be many cases when legis- latures can not elect. It is quite likely that Senators will die or resign, or that Sen- ators-elect will decline. In all these contingencies, described by the comprehensive word ‘‘happen,”’ the constitutional mandate that each State shall have two Senators 124 SENATE ELECTION CASES. is in force and there is a simple provision for its execution by authorizing the execu- tive to fill the vacancy. It remains only to consider the precedents set by the Senate in dealing with like cases. In our judgment the decisions of the Senate made heretofore do not present any obstacle to the decision of this case on its merits and by the simple rule of the Con- stitution, as we understand it. We think the weight of those decisions tends to establish the construction for which we contend. They are somewhat in conflict with each other, and in some cases it is difficult to know on what grounds they pro- ceed. While great weight is to be given to a judgment of the Senate reached on careful consideration and debate, yet it is obvious that in determining how far they are to control later cases, very different considerations exist from those which apply to ordinary courts. They do not affect property which may have been acquired in consequence of a belief that the former decisions contain a rule of law which will stand. They do not involve penal consequences as do decisions which expound criminal laws. If the clear meaning of the Constitution be what we believe it to be, no harm can happen to anybody if it be so declared. The only result will be that States which otherwise would be left unrepresented will have their full constitutional representation without an interval. It is also true that frequently political or personal considerations enter into the votes of a political body, even into the votes of the Senate, which very seldom find admission into courts of justice, and unhappily such considerations have been in the past sometimes frankly avowed by Senators who have yielded to them, and the political opinions of contestants for seats in this body have had an influence on the judges of elections which has sometimes determined the vote in election cases. But, beyond all cavil or question, no such consideration entered into the fully discussed and carefully considered cases of Mr. Bell and Mr. Blair and Mr. Marston, where it was held that the executive can appoint in case of-a vacancy at the beginning of the term, and that the word ‘“‘happen’’ used in the Constitution does not mean ‘‘occur accidentally,’? but means ‘‘exist,’’ and that the words ‘‘if vacancies happen’’ and the words ‘‘if there happen to be a vacancy”’ are equivalent. When these three gentlemen were admitted to their seats the Senate had a con- siderable majority for one political party whose members had no conceivable advan- tage to gain by the admission, for a short time, of another person of the same political faith. The members of the two parties in the Senate were divided upon the question, and took different sides in the debate. There probably has never been an occasion, from the beginning of the Government, of a vote in the Senate in which it was more absolutely certain that the votes were wholly upon the constitutional merits of the question. In all these cases the vacancies occurred by the ending of the constitu- tional term. No legislature could lawfully elect a Senator under the statute of 1866 until June, although the Senatorial term began on the 4th of March. And it was held that the governor might appoint in those cases. We suppose that to be the accepted law, which would be enforced in a like case to-day.’ Now, if that be the accepted law, then the word ‘‘happen’’ does not mean ‘‘take place unexpectedly.” It means ‘‘occur,’’ and the rule of those cases is as applicable to the case where a legislature has met and failed to elect as where no legislature has met. There can be plausible reasons given, we agree, for claiming that the word ‘‘happen”’ means ‘‘occur unexpectedly.”? But, as we conceive it, no plausible reason can be given for claiming that the words ‘‘if vacancies happen’’ mean ‘‘if vacancies begin.”’ We find no authority anywhere for giving such a meaning to the term. It is true that, in the three cases of Montana, Washington, and Wyoming, which were argued and decided practically as one, and in the case of Mr. Corbett, of Oregon, there was a different result. In the Corbett case it was a disputed question whether the legis- lature had existed after the vacancy began or no. In the case of Lee Mantle, of Montana, the vacancy began during the vacation of the legislature. The legislature, which was entitled to elect a successor in anticipation of the vacancy, had adjourned before the ending of the previous term without an election. The case of Allen, of Washington, was decided with the Lee Mantle case and with- out argument, a decision to which Mr. Beckwith, of Wyoming, submitted without further contest. Atthat time there was an earnest division in the Senate on an im- portant question relating to the currency, which created for the time being more earnest differences of opinion than those existing between the two great political parties on other Gisetions: It was a time not favorable to a dispassionate, nonparti- san judgment. e prefer the authority of the New Hampshire cases, which was acted on also in the case of Mr. Pasco, of Florida, and we think that a decision which must inevitably deprive States in the Union for long periods of time of their rightful representation under the Constitution will not be permitted long to stand, and that no settlement of the question in derogation of the rights of the States and, as we MATTHEW 8. QUAY, OF PENNSYLVANIA. 125 conceive, in violation of the intent of the framers of the Constitution should be acquiesced in. We therefore recommend the following resolution: “* Resolved, That Matthew S. Quay is entitled to a seat in the Senate as a Senator from the Commonwealth of Pennsylvania until the next meeting of the legislature.’’ GEO. F. HOAR. WM. E. CHANDLER. J. C. PRITCHARD. L. E. McCOMAS. The resolution reported by the committee, as hereinbefore set forth, was debated in the Senate February 22, 1900 (Congressional Record, vol. 33, pp. 2062, 2063); February 23, 1900 (ibid., pp. 2115-2122); February 26, 1900 (ibid., pp. 2233-2240) ; February 27, 1900 (ibid., pp. 2310-2316); March 2, 1900 (ibid., pp. 2462-2469); March _8, 1900 (ibid., pp. 2503-2508); March 5, 1900 (ibid., pp. 2529-2533); March 6, 1900 (ibid., pp. 2573-2579); March 15, 1900 (ibid., pp. 2929-2930, and 2931-2939); March 16, 1900 (ibid., pp. 2963, 2964); April 4, 1900 (ibid., pp. 3732-3736); April 5, 1900 (ibid., pp. 3795-3798); April 6, 1900 (ibid., pp. 3829, 3830); April 7, 1900 (ibid., pp. 3873, 3874); April 9, 1900 (ibid., pp. 3918-3916); April 10, 1900 (ibid., pp. 3965, 3986) ; April 11, 1900 (ibid., p. 4001); April 12, 1900 (ibid., pp. 4079-4094); April 14, 1900 (ibid., p. 4159); April 21, 1900 (ibid., pp. 4520-4525) ; April 23, 1900 (ibid., pp. 4539- 4557); April 24, 1900 (ibid., pp. 4586-4612). _ [Extracts from remarks of Mr. Hoar in opposition to the resolution that Mr. Quay was not entitled to a seat in the Senate as a Senator from the State of Pennsylvania. Found in the proceedings of March 2, 1900, in the Congressional Record, vol. 33, pp. 2462-2464.] “Mr. President, I have stated my opinion in debate and in printed reports on this question a good many times during the last twenty years. I do not wish to go over those arguments now. I wish merely to state very briefly and compactly, if I can, one or two propositions which may not in the first instance seem directly applicable to the main argument, and yet it will be found by anybody who reads the debates or reports or who talks with Senators in private that these propositions or their opposite seem to be constantly in the heads of Senators who are reflecting upon this question. ‘In the beginning, [ desire to ask the Senate to consider for a moment the con- dition of mind in the convention that framed the Constitution and the people who accepted it in regard to this question, with a view of ascertaining what they desired to do and would have done, if they could, by a proper expression. . “They were constructing a Government in a convention in which 11 States only were taking part. They were providing for a Senate to consist of only 22 men, in which they were to deposit half the legislative power of that Government, a share in the executive power, and a great judicial power affecting the interests and rights of the whole country. They expected that body, in the main, as everybody who is familiar with the history of that time well knows, to be a nonpartisan body. It was contrary to etiquette for many years after the Senate was organized to allude to party considerations in debate in this Chamber. The Senate was expected to bea sort of poiitical supreme court, composed of men in whose judgment, by reason of their age, their character, their experience in public affairs, the whole country would have confidence, and, as I have said, they expected in the beginning that there would be but 220f them. Rhode Island and North Carolina came in afterwards. ‘“‘T allude to this consideration to show how completely the idea that the whole country was interested in having the Senate full and how little the idea that it was a concern of a particular State alone whether there was a vacancy was in the mind of that convention and of the people. ‘They proceeded to make a rule, a mechanism, by which this great assembly should be made up and should be kept full, and they did it by enacting that the State legis- latures should appoint Senators, and they went on to say, ‘vacancies may be filled by the executive.’ That is the phrase they used. ‘“‘When they had said that, which, beyond all question was an enactment that whenever under any circumstances there was no Senator appointed by a legislature here, the chair should be filled by the governor, they had previously doubted whether ae overnor should not have the entire power. He represented the whole people of the State. ‘‘He represented the dignity and the authority of the State in those days; he appointed every judicial officer and almost all of the high officers of the State—the sheriffs, district attorneys, judges. That was the arrangement they made, and that was passed by the Convention and reported in that form from the committee on detail. Then Mr. Ellsworth, than whom there was no greater constitutional lawyer and 126 SENATE ELECTION CASES. -tatesman on the face of the earth anywhere, made a brief remark reported by Mr. \ladison. Mr. Randolph tirst said: ‘* “It is necessary in order to prevent inconvenient chasms in the Senate.’ . ‘‘He was speaking of the provision that vacancies may be filled by the executive. Then Mr. Ellsworth says: ““*As there will be but two members from a State, vacancies may be of great moment.’ ; “Everything said on that subject, so far as reported, being to call the attention of the assembly to the importance of keeping the Senate without a vacancy. That being the condition of affairs, Mr. Madison, who was also the reporter of the debate as well as a participant in it, rose in his place and said, ‘But thereis a question in England whether a man holding a legislative office may resign or decline, and for that reason I suggest a change in the phraseology.’ He then moved to strike out the words after ‘vacancies’ and insert the words, ‘happening by refusal to accept, resignation, or otherwise, may be filled by the governor.’ “Mr. President, I hold it very unlikely that any body of men would make that great change which made it possible that there might be long vacancies continued— and vacancies are now continuing in this body week after week, month after month, and year after year—when nobody said anything about it, when the mover of the amendment did not disclose any such important purpose, and only mentioned a much less important. and more insignificant purpose. ‘The honorable Senator from Tennessee says that this language is not to be taken in any artificial, or constrained, or technical sense, but is to be taken in a popular sense. To that I agree; but I would prefer to say that it should be taken in the sense in which the Conventian used it, and in which the people who voted, or the assemblies who represented the people in accepting it, took it when they accepted it. ‘*Let us see if we can not settle that. They used precisely the same words in regard to vacancies in two other cases; first, in regard to possible vacancies in the House of Representatives, and, second, in regard to possible vacancies in the execu- tive offices where the President appoints, and precisely those same words, ‘ if vacancies happen,’ have been from that day to this, held to include not only vacan- cies coming by chance, or in any particular way, but any possible vacancy arising under any circumstances at any time or under any conditions. ‘So, in order to limit this language as it is attempted to limit it here, you have got to say, first, that a convention that meant to do exactly what is claimed here by those in favor of the seating of Mr. Quay, five minutes before, without any question, all of them having so voted and whose committee had so reported, adopted language having a totally different meaning without any suggestion of a change of mind in this very important particular; and, next, that having adopted this language to express in this particular clause a totally different meaning, they used the same language in two other clauses in the same Constitution to express the purpose they at first entertained. ‘Mr. President, I stated just now that I thought there was one consideration which, in the first instance did not seem to be so very important, but which seemed to bein the minds of Senators who debated this question on the floor, or who discussed this question in their private consultations, or who may do so, and that is, that if a State legislature meet and fail to make an election of a Senator, the State has neglected to perform a duty; that the State is in fault. You find that phrase all through the speeches on the other side of this question, that the governor can not appoint if the State legislature has neglected its duty. The honorable Senator from Tennessee, in his very interesting and able address the other day, said that if the State legislature neglected to elect, did not elect a Senator, its members had violated their oaths. Let us see if this proposition will bear the light. I maintain the contrary. I submit to the considerate judgment of Senators that not only it is no negligence, that it is no violation of an oath, but under many circumstances which are conceivable—and not only conceivable, but many conditions which frequently exist—the members of a State legislature would violate their oaths and depart from their duty if they made an election. . “In the beginning it was expected that two houses, two separate pelitical persons, two corporate bodies, must separately choose the same man, and now there must be a majority of all the members of the joint body to choose a Senator voting for the same man. There are many cases familiar to all of us where these two bodies can not agree, or where there are three parties in the joint convention who can not agree, when the difference between them goes down not merely to the deepest inter- est of the Republic, but to the very root of the moral law itself. Take the case of one of our recent conditions; take the case in a Southern State of two legislatures, one believing and its members believing with all their might and main that the late election law was tyrannic, was unrepublican, was a violation not only of the Consti- MATTHEW 8. QUAY, OF PENNSYLVANIA. 127 tution, but of every sound principle of legislation and of the principles of public liberty, and the other body believing with equal sincerity that the failure by national authority to secure the purity of elections in regard to Representatives in the other House was a pet public crime. Could they conscientiously agree on a Senator? ‘Suppose Aaron Burr were the candidate of one party and Thomas Jefferson of the other, or suppose Aaron Burr and Thomas Jefferson and some Federalist had been the three candidates, and a joint convention was to choose upon joint ballot. Is it neglect, is it a breach of the oath, is it a violation of constitutional duty, when any one of those representing those three opinions finds it impossible for him to agree with the men representing either of the others? “Why, Mr. President, the framers of the Constitution meant to provide for just that case in other respects, did they not? Twice in our history has there been a failure of the electoral majority, of the persons chosen to the electoral colleges to agree, and will my honorable friend from Tennessee, or any other honorable friend, claim that the men who voted for Aaron Burr during those long ballotings, or the men who voted for Thomas Jefferson, or in a later year, the men who voted for John Quincy Adams and for Andrew Jackson, or for Henry Clay, or for William H. Crawford, were violating their oaths and that, to be consistent in our logic, the American people ought to be punished by not having a President for four years? Do the electors violate their oaths when they fail to choosea President? Does the House violate an oath when it fails to make a choice? The framers of the Constitution pro- vided for the very case of a failure in bodies, which must act by majorities only, to get majorities for any particular candidate, and in case of President they went further and provided also in the case of a failure of the House of Representatives to elect. Two successive cases of failure to elect a President were provided for in the Constitution. “‘Can anybody believe, who reflects on it impartially, that the framers of the Con- stitution did not intend to make a similar provision that should cover every case and should cover the whole time in regard to the great office of Senator? Why, Mr. President, they knew as well as you know how important a single vote may be. A single vote within the last twelve or thirteen months would have changed the whole policy of our Government with reference to imperialism. A single vote saved Andrew Johnson from impeachment. A single vote passed the bill taking newspapers out of the mail, a vote which tended so much to bring on the political destruction of Martin Van Buren and the overthrow of a dynasty. Twice in my own Commonwealth a single vote has elected the chief magistrate. Now, is it to be supposed they would have for a moment contemplated the idea that the great State of Pennsylvania, which now has a people of more than double the entire population who accepted this Con- stitution, should be shorn of half its strength, and that the people of the United States should be without the presence here of a gentleman to utter the voice and represent the will of 3,5000,000 people? “Mr. President, the question before us is just that question. Did the men who framed this Constitution intend, would they have thought for a moment, that these great political corporations for great spaces of time on great questions should be without their lawful representation and their lawful voice here? “Tt may be said that the executive, after all, if the legislature fails to agree, may appoint somebody whom the people as represented by a majority of the legislature would not approve. But that is our universal policy. If you can not get a majority you do not leave the people interested unrepresented; you take a plurality, do you not? And in every instance now throughout the entire country, I believe, a plurality of voicés elects the Representatives in the other House, and nowhere is a majority required. “Mr. President, when you couple with these considerations the fact that the lan- guage the framers of the Constitution used means in the same instrument in two other places that there shall be no vacancy and the office shall be kept full, that they did not utter, they did not make any suggestion of changing their mind in this par- ticular, that they had unanimously adopted language which said ‘‘ vacancies shall be filled’’—when you couple with that the constitutional declaration of the importance of this matter, as shown in the enactment that no State shall be deprived of its equal voice in the Senate without its own consent, the justice of my contention will be manifest. “‘The American people may, by constitutional processes and in a lawful way, make any changes in their Constitution whatever but one. They may establish a limited monarchy; they may do away with every safeguard of life, liberty, and property; they may amalgamate this country with races or States; but one thing they can not do, unless 45 States shall agree, and that is, leave a State with but half a voice in the Senate. ‘These things, Mr. President, seem to me to be the large considerations that belong to this topic. They are such considerations as, it seems to me, would be in the minds 128 SENATE ELECTION CASES. of the statesmen in that convention and of that generation. If you had come in in the light of these things and somebody had got up and said, ‘There will be a State by and by whose legislature meets but once in four years; there will be a great many States by and by whose legislatures meet but once in two years; now, if it happens that a week or ten days ora fortnight before one of those legislatures adjourns a Senator dies, or if it happens that one of those legislatures tries to elect a Senator and can not do it because there are three opirions, each conscientiously held,’ do you mean, gentlemen, that for two years, or for four years, or for one year, or for half a year, that that State shall be unrepresented? : “It may happen in regard to two Senators from the same State. Frequently in our history there has been such a condition of things that two Senators were to be voted for at once, or were to be appointed at once. It happened once in my own State, and it happened in the case of Mississippi not long ago. Do you mean insuch a case the governor can notappoint? ‘Why, no,’ the answer would have been, ‘We no more mean that that thing should happen, and that the whole country should be without the voice of that Senator, than we mean that the executive offices should be vacant under like circumstances, or that seats in the House of Representatives should be vacant under like circumstances; and you will observe that we have said in regard to the Senate just what we have said in regard to them.’ * * * * * * * ‘Mr. President, I wish to call the attention of the Senate to one judicial construc- tion which I think has not been lately cited in the debate, and that is in the State of Pennsylvania. The constitution of Pennsylvania provides that the governor may fill any vacancy ‘which may happen’ in any judicial or elective office. It was held in Walsh v. Commonwealth (89 Pa. St. Rep., 419), just as it has been held in our dealing with executive officers, that where the legislature created a new county the governor was authorized to appoint all the officers of that new county without their being elect- ive officers ordinarily until an election could be held, on the ground that there was a vacancy happening within the meaning of the constitution of the State. “Mr. President, my friend the Senator from Tennessee [Mr. Turley] says—and it struck me that the argument he made was more against than in favor of his proposi- tion—that if the framers of the Constitution meant what it is claimed they meant how easy it would have been to have said ‘appoint a Senator till the legislature fill the office.’ The fact that they did not say so, where they could have said it so easily, seems to him a strong argument that they did not mean it. But what they did say has been construed to mean exactly that: thing. They said ‘appoint until the next session of the legislature,’ and the Senate says, as they also said so emphatically, that the Senate should be always full; that it means till the next adjournment of the legislature, which they did not say. “JT should like to ask this question, which I have never heard answered: What difference in principle is there between the case of a vacancy that begins at one time and the case of a vacancy that begins at another; between the case of a vacancy hap- pening according to your construction of the word ‘happen’ and the case of a vacancy happening according to my construction of the word ‘happen?’ Is there any reason that can be conceived of on earth or in heaven which would induce any intelligent body framing a constitution to say that if the legislature has not met the governor may appoint, and if it has met the governor shall not appoint, unless what I have just spoken of now can be accounted a crime, perjury, negligence on the part of the legislature who can not agree? | “Now, one of these things which our ancestors feared was a failure on the part of the State to take interest enough in this General Government to keep the seats in the Senate and in the House full. You will find that fear constantly in the early discussions on the Constitution, even downto Mr. Webster’s time. Mr. Webster, as late as 1825 or 1830, spoke of the danger that the States might not perform their con- stitutional duty of keeping the Senate full, and he said, in a passage cited in both the majority and minority reports on this question, that such a negligence would be fatal or destructive to any other country but ours. And then he adds, the Constitution, to secure us against this evil, lays hold of the individual conscience. But the indi- vidual conscience of the legislature is not sufficient for that purpose, and you are not safe any the more for the individual conscience of the legislature if they can not agree in regard to the character or the principles or the policy of the man upon whom they must unite. No oath can make a jury agree. No oath of office can create a majority among men conscientiously differing in opinion. But behind the legislature and behind the individual consciences of senators or representatives of the State, whose individual consciences may not let them agree, you have one place where the individual conscience is to be laid hold of, where it is sure to create individual action, and that is the conscience and the action of the executive. * * ¥ * * * ¥ MATTHEW 8. QUAY, OF PENNSYLVANIA. 129 ‘He has to agree with nobody; he has to reconcile no difference of opinion, and he has the power and the right and the sworn duty to fill the office if the legislature can not fill it; and in that way, and in that way alone, is the security of the whole Republic assured.”’ {Extracts from remarks of Mr. Burrows in support of the resolution that Mr. Quay was not entitled to a seat in the Senate as a Senator from the State of Pennsylvania. Found in the proceedings of April 12, 1900, in the Congressional Record, vol. 33, pp. 4079, 4080, 4081, 4082, 4083, 4085, 4086, 4087, 4088, 4089, 4091, 4092, and 4094.) “Mr. President: * * % * * * * ‘*A recital of the facts in this case, in connection with the foregoing provisions of the Constitution, will disclose the exact question involved. In 1893 the legislature of the State of Pennsylvania elected Matthew 8. Quay a Senator for the full term of six years from the 4th of March, 1898. He accepted and held such office until the a of the term, March 3, 1899. The legislature failed to elect his successor, and as a consequence such office became vacant on the 4th of March, 1899. The legislature was in session, however, at the time such vacancy occurred, and had been since the 2d of January previous, and continued in session until the 20th of April, 1899, when it adjourned sine die without electing a successor to Senator Quay for the succeeding term of six years. Thereafter, and on the 21st of April, 1899, the gover- nor of the State appointed and commissioned Matthew 8. Quay to hold the office of Senator ‘until the next meeting of the legislature,’ invoking as his authority for such action the provision of the Constitution already quoted, namely: “« “By this it will be seen that the convention, instead of conferring the power of supplying vacancies exclusively upon the executive, vested it primarily in the legis- lature, so jealous were they of executive control over the matter of choosing Senators. The authority of the executive was secondary. They were evidently determined that the executive should not be permitted to take the selection of Senators either for a full term or to fill a vacancy away from the legislature, where the primary power had been deposited. The manifest purpose in this modificution was to make it incumbent upon the legislature, in the first instance, to fill the vacancy, but if the legislature was not in session or for any cause could not act, then the vacancy was to be supplied ‘by the executive until the next meeting of the legislature’—until the legislature, the primary power, could act. In this form, as thus modified by the convention, it was referred to the committee on style, which reported it back to the convention in the following form: “And if vacancies happen, by resignation or otherwise, ‘during the recess of the legislature of any State ’’’— “This is the first time that clause appears— ‘*¢during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature.’ “Tt is conceded that the committee on style was only authorized to put in proper form and phrase that to which the convention had already agreed. Now note what the committee did. First, they dropped the words ‘refusalsto accept’ asevidently being surplusage, being ineladad within the meaning of the word ‘otherwise.’ They had evidently abandoned the suggestion of Madison, that it was necessary to include these words in order to confer upon a Senator the right of ‘refusal to accept.’ Secondly, they dropped the words— is “by the legislature of the States in the representation of which such vacancies shall appen —— 2 “evidently for the reason that the legislature, if in session or if convened, had the power to fill vacancies under its original grant of power to elect Senators, and this provision was, therefore, unnecessary, and iaearted in lieu thereof the words— ‘during the recess of the legislature of any State’— “thus still further limiting the power of the governor over vacancies to those which should happen when the legislature was not in session—when the primary power was absent and could not act; so that the provision as formulated by the committee on style read: “« “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.’ “It is worthy of note, too, in this connection that the committee on style dropped the words ‘may be supplied’ and inserted, for the first time, the words ‘may make temporary appointment.’ Why was this done? ‘Supply’ isdefined to mean ‘to fill up,’ but it is clear the convention never intended to allow the governor to fill the vacancy; and so these words were stricken out and ‘may make temporary appoint- ment’ inserted, ‘temporary’ meaning, as defined by lexicographers, ‘lasting for a time only; existing or continuing for a limited time; not permanent.’ From this it will be seen how guarded the convention was in conferring this power of appoint- ment upon the executive of the State, and how determined they were to restrict it within the narrowest possible limits. Not content with this, when the convention took up the report of the committee on style, to compare it with the articles agreed to and referred to that committee, they modified the provision as reported from the committee on style by adding after ‘legislature’ the words ‘which shall then fill such vacancies,’ as if to set definite bounds to the exercise of this limited power, beyond which the executive could not go, and, as thus modified, it was embodied in the final draft of the Constitution. ‘Now, it has been said that the clause, ‘which shall then fill such vacancies,’ refers to those vacancies to which the governor might make temporary appointments; and if the governor can not make a temporary appointment in this case, then the legislature can not fill. The expression ‘shall fill such vacancy’ does not refer to such vacancies as the governor may supply, but to the original vacancy. Our friends on the other side insist upon reading into the Constitution power to supply vacancies, which the executive does not possess, and then draw the conclusion if the governor has not the power to supply then the legislature can not fill. ‘‘This is a correct history, step by step, of the development of this provision from its inception to its final completion and embodiment in the Constitution, where it stands to-day in clear and unmistakable phrase: ‘««Tf vacancies happen by resignation, or otherwise, during the recess of the legis- lature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies,’ * * * ¥ * * * MATTHEW 8, QUAY, OF PENNSYLVANIA. 135 “The whole contention of the minority resolves itself into this—the executive may fill any vacancy he finds existing when the legislature is in recess. A vacancy and the absence of the legislature are the only prerequisites for executive action. The framers of the Constitution when they said, ‘If vacancies happen by resignation, or otherwise, during the recess of the legislature of any State the executive thereof may make temporary appointment until the next meeting of the legislature, which shall then fill such vacancy,’ intended only to say the executive of the State may fill all vacancies when the legislature is not in session. “Tf at the expiration of a term, though the legislature may be in session at that time, and remain in session many weeks thereafter, yet if it finally adjourn without making a choice of Senator, immediately upon such adjournment the governor may appoint until the next meeting of the legislature, which is construed to mean not only to the meeting of the legislature, but to its final adjournment if no choice is made. If at the next meeting of the legislature thereafter there should again be no choice, immediately upon its adjournment the governor may again appoint until the neat meeting of the legislature, and so continue the process indefinitely until some legis- lature shall make a choice of a Senator, so that seats in this Chamber are to be filled by governors so long and as often as the legislature shall refuse or fail to elect. “Tn this very case, as an illustration, in the approaching election in Pennsylvania, only about six months distant, if ex-Senator Quay should be a candidate for reelec- tion it will not be necessary for him to carry a majority of the legislature, but only to secure a sufficient number of adherents to prevent an election and force an adjourn- ment, when Governor Stone can again disregard the mandates of his own constitution, refuse to call a session of the legislature, and again issue his commission to Senator Quay to hold a seat in this body until the next meeting of the legislature, and then, upon the theory of the minority, he would be seated, and thus repeat the process for the full term of six years, and thus continue to hold a seat in this body by the favor- itism of the governor, and independent of the will of the legislature of the State of Pennsylvania. Is the Senate of the United States prepared to indorse a construction which would lead to such results? * * * * * * * “And in this connection I can not refrain from again quoting the words of Hamil- ton in the Federalist (p. 393), where he says in explanation of this provision of the Constitution: “Tt may be alleged that, by declining the appointment of Senators, they’ — ‘‘Meaning the legislatures— “might at any time give a fatal blow to the Union. It is certainly true that the State legislatures, by forbearing the appointment of Senators, may destroy the National Government. So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil, but it is an evil which could not have been avoided without excluding the States in their political capacities wholly from a place in the organization of the National Government.’ “But how could the State legislatures, if the contention of the minority be sound, by forbearing the appointment of Senators, destroy the National Government? The executive can appoint whenever and as often as the legislature fails to elect. How it would have quieted the apprehension of Alexander Hamilton for the safety of the National Government if he could have but known that the governors of the States had the power to keep the Senate always full, though the legislatures should fail to doso. He was evidently laboring under the delusion that if the legislatures failed to elect there was no remedy, and the whole fabric of government would be placed in jeopardy. How natural it would have been for Hamilton, in his defense of this provi- sion of the Constitution, if such a defense were permissible, in answer to the criticism that the States, by withholding Senators, might break up the National Government, to have said in reply what is contended for now by the minority, that if the legis- lature fails to elect at any time the Constitution empowers the executive of the State to appoint Senators, and so keep the Senate always full. It seems inexplicable that Hamilton, a member of the convention that framed the Constitution, should have lost sight of this power of the governor to supplement the failure of the legislature. * * * * * * * ‘‘ And so we have this plain provision of the Constitution distorted and made to read, ‘whenever vacancies exist for any cause, and the legislature is not in session, the executive may make temporary appointment until some legislature fills the vacancy.’ When I consider how this provision is warped and twisted, that it may temporarily serve personal or party ends, J am again reminded of the words of Sen- ator Hill: ““‘When I hear gentlemen on either side of this Chamber, in either party of this country, take that plain language of the Constitution and construe it to apply to any 186 SENATE ELECTION CASES. vacancies that may occur by any means, by the failure of the legislature, willfully or otherwise, to elect a Senator, that the governor can come in and supply the vacancy, I must say it excites my profound astonishment, more than that, my sorrow. It absolutely shakes my confidence in the efficacy of written constitutions. — ““‘The primary object of the Constitution is to put in the State legislature the power to fill this office, and nobody else; but casualties may occur, death may come, resignation may come, Senators may be expelled, there may be divers casualties by which the term thus filled by the legislature may become vacant, and vacant during the recess of the legislature when Congress may be in session. It is important, therefore, as was said by Mr. Randolph, to allow the governor power to fill chasms, but not to fill an original term.’ ‘What did the great Seward, of New York, say? “¢Phis alarm’— “Speaking of the effect of the contention of the minority— «This alarm will be increased by the fact that the proceeding will operate to strengthen and increase the provisional prerogative of the governors of the States at the expense of the power conferred by the Goustitation on the legislatures of the States; for nothing is clearer than that the power conferred on the governors to fill vacancies was designed to be but occasional and exceptional, and subordinate to that ’ devolved on the legislature, which was designed to be general, complete, and supreme.’ “William H. Seward, it will be admitted, was a great constitutional lawyer. “TY commend to the Senators from Illinois the language of Justice Davis, who, when in the Senate, commenting upon this very provision, said: “The whole question is in a narrow compass, and the view of the Constitution which has been presented by different gentlemen who have discussed the subject, especially by the Senator from Georgia [Mr. Hill], and last by the Senator from Wisconsin [Mr. Carpenter],in my judgment presents the proper construction of that instrument. “*¢T do not believe’— “Says Judge Davis— ‘« ‘that the vacancy mentioned in that clause of the Constitution is anything else than a portion of the six years’ term where there is no person qualified to discharge the functions of the office. The principle asserted in the Lanman decision is that the legislature of a State 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 con- tingency as is embraced in the governor’s power under the Constitution; that where opportunity is given to the legislature to choose a Senator the governor can not appoint. A vacancy within the meaning of the constitutiénal provision does not arise by the failure of a legislature to elect. “ruary 4, 1833, Mr. Knight, of Rhode Island, presented in the Senate the credentials of Asher Robbins, elected a Senator from Rhode Island for the term beginning March 4, 1833, which were read. Mr. Robbins had been elected January 19, 1833; his credentials dated January 28, 1833. De- cember 2, 1833, the first day of the first meeting of Congress in said term, the President of the Sen- ate communicated an act of the State of Rhode Island declaring the election of January 19 void; also credentials of election to the Senate of Elisha R. Potter for the said term. The act had passed in October, 1833. Mr. Potter had been elected November 1,1833; his credentials dated November 5, 1833. After debate on the question whether Mr. Robbins should be admitted at once to the seat to hold until the Senate should have decided to which of the contestants it belonged, it was determined that Mr. Robbins be admitted to take the oath, which he did December 2,1833, and the credentials of Mr. Potter were laid on the table. December 5, 1833, the credentials of Mr. Potter were re- ferred to a select committee of five elected by the Senate; and December 9 the credentials of Mr. Robbins were referred to the same committee. Majority and minority reports were made by the committee. The majority reported that the body electing Mr. Robbins was the legislature of Rhode Island; also a resolution ‘‘that Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate,’ which resolution passed int the affirmative May 27, 1834, by a voteof 27 yeastol6nays. The minority reported that the choice of Mr. Robbins was not made by the legislature of the State; that the terms of the governor and senators forming part of that body had expired in May, 1832, before the election of Mr. Robbins; that there had been no new election by the people; and that the act passed in January, 1832, by the legislature, providing that in case of a failure at any annual election by the people of the election of a governor, lieutenant-governor, or a quorum of the Senate, such of those officers who should then beincumbents should continue in office until their successors should be duly qualified, under which act the governor and senators referred to were holding office at the time df the election, was in violation of the charter granted to the State in 1633, and was null and void; and report that Mr. Potter was duly elected. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ‘ing to it from Senate Journal, lst sess. 23d Cong., 1833-34; the majority Pepure(Repoit No.139, Senate Documents, Ist sess. 28d Cong., vol. 2, 1833-'34) ; and the minority report (Report No. 246, Senate Doc- uments, Ist sess, 28d Cong., vol. 3, 1833-'34), with the exception of certain accompanyipg documents, which may be found in the volume of Senate Documents containing the report. The debate on the prima facie right of Mr. Robbins to the seat is found in Congressional Debates, vol. 10, part 1,1833~34, pages 2-11. A debate on the right of the minority to make report, and on the question whether a minority report should be responsive tothe majority report, is found in the same volume, pages 804-807, 1229, 1230, 1252-1257. Special references to the other debates are inserted a The vote on agreeing to the resolution reported by the committee was taken without de- ate. The references here given are all either to the Senate Journal or to the Congressional Debates (Gales & Seaton). The case is also reported in the Congressional Globe and the Register of De- bates (Green). : Monpay, February 4, 1833. Mr. Knight communicated the credentials of the Hon. Asher Robbins, appointed a Senator by the legislature of the State of Rhode Island and Providence Plantations for the term of six years, to commence on the 4th day of March next; which were read. F Monpay, December 2, 1833. The President communicated an act of the general assembly of the State of Rhode Island and Providence Plantations, declaring void the election by the general assembly of that State, on the 19th of January last, of Asher Robbins to the office of Senator to represent that State in the Senate of the United States for the term of six years from the 3d day of March last; and the certificate of the governor and secretary of that State of the election, by the said general assembly, of Elisha R. Potter to the same office; which act and certificate were read; and, On motion by Mr. Poindexter, Ordered, That they be laid on the table. On motion by Mr. Poindexter that the oath prescribed by law be now administered to Mr. Robbins, whose credentials were received at the last session, A motion was made by Mr. Benton that said motion be referred to a select commit- tee to consider and report thereon. It was determined in the negative—yeas 15, nays 19. [A reference to the debate that took place on the two last motions is given in the head-note, it being pages 2-11 of the references. ] On motion by Mr. Benton, the yeas and nays being desired by one-fifth of the mem- bers present, Those who voted in the affirmative are Messrs. Benton, Brown, Grundy, Hill, Kane, King of Alabama, Morris, Rives, Robinson, Shepley, Tallmadge, Tipton, White, Wil- kins, and Wright. 180 SENATE ELECTION CASES. Those who voted in the negative are Messrs. Bell, Bibb, Chambers, Clay, Ewing, Fre- linghuysen, Hendricks, Kent, Knight, Mangum, Moore, Naudain, Poindexter, Prentiss, Silsbee, Smith, Swift, Tomlinson, and Tyler. The question recurring on the motion by Mr. Poindexter, “‘ that the oath prescribed by Jaw be administered to Mr. Robbins,’’ it was determined in the affirmative; and the oath was accordingly administered to Mr. Robbins and he took his seat in the Senate. WEDNESDAY, December 4, 1833. On motion by Mr. Wright that the proceedings of the legislature of the State of Rhode Island, now upon the table of the Senate, showing the appointment of Elisha R. Potter as aSenator to represent that State in the Senate ofthe United States, be referred to a select committee of five members, to inquire and report upon the claim of the said Elisha R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins; and, On motion by Mr. Clay, Ordered, 'That the said motion be laid on the table. [On Mr. Wright’s motion was a brief debate on the method of appointment of select eda which is found on pages 13, 14 of the volume of Congressional Debates above referred to. THURSDAY, December 5, 1833. On motion of Mr. Wright the Senate resumed the consideration of the motion sub- mitted by him yesterday, to refer to a select committee the claim of Elisha R. Potter to a seat in the Senate; and it was amended and agreed to, as follows: ‘ ‘‘ Resolved, That the proceedings of the legislature of the State of Rhode Island, now upon the table of the Senate, showing the appointment of Elisha R. Potter as a Sena- tor to represent that State in the Senate of the United States, be referred to aselect com- mittee, to be elected by the Senate, to inquire and report upon the claim of the said Elisha R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins.’’ Ordered, That Mr. Poindexter, Mr. Rives, Mr. Frelinghuysen, Mr. Wright, and Mr. Sprague be the committee. [Some remarks made on this motion of Mr. Wright are found on page 19 of the vol- ume of Congressional Debates above referred to. ] Monpay, December 9, 1833. On motion by Mr. Poindexter, Ordered, That the credentials of Mr. Robbins be referred to the select committee ap- pointed on the claim of Elisha R. Potter to a seat in the Senate. TUESDAY, March 4, 1834. Mr. Poindexter, from the select committee to whom had been referred the credentials of Asher Robbins, appointed a Senator in Congress from the State of Rhode Island for the term of six years, to commence on the 4th day of March, 1833, and the proceedings of the legislature of said State, convened on the last Monday of October, 1833, declaring void the appointment of said Robbins, and the appointment of Elisha R. Potter for the said term, made a report,* accompanied by the following resolution: “* Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate.’’ [Here followed a debate on the right of the minority of the committee to submit a report, a reference to which is given in the head-note, it being pages 804-807 of the ref- erences. ] TUESDAY, April 1, 1834. On motion by Mr. Wright that he have leave to present to the Senate a paper con- taining the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Robbins and Elisha R. Potter, by the State of Rhode Island, to the Senate of the United States. [A reference to the debate on this motion is given in the head-note, it being pages 1229, 1230 of the references. ] On motion by Mr. Ewing, Ordered, That it be laid on the table. FRIDAY, April 4, 1834. On motion by Mr. Wright, the Senate resumed the consideration of his motion to pre- sent to the Senate a paper containing the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Robbins and Elisha R. Potter by the legislature of Rhode Island to the Senate of the United States; and, * Found on page 102, POTTER VS. ROBBINS. 181 On motion ot Mr. Forsyth, Ordered, Tha. it be laid on the table, and that the said paper, with the documents therein referred to, except those marked G, H, and I, be printed. ; [A reference to the debate following Mr. Wright’s motion is given in thehead-note. i| being pages 1252-1257 of the references. ] [The consideration of the report was successively postponed April 10, May 8, May 12, and May 19.] TUESDAY, May 27, 1834. The Senate resumed the consideration of the report of the select committee on the re- spective claims of Messrs. Robbins and Potter to a seat in the Senate; and, on the ques- tion to concur in the resolution with which it concludes, as follows: ‘‘Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate,” It was determined in the affirmative—yeas 27, nays 16. On motion of Mr. Wright, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs Bell, Bibb, Calhoun, Chambers, Clay, Clayton, Ewing, Frelinghuysen, Hendricks, Kent, Knight, Leigh, McKean, Mangum, Naudain, Poindexter, Porter, Preston, Silsbee, Smith, Southard, Sprague, Swift, Tip- ton, Tomlinson, Waggaman, and Webster. : Those who voted in the negative are Messrs. Benton, Brown, Forsyth, Grundy, Hill, Kane, King of Alabama, King of Georgia, Linn, Morris, Robinson, Shepley, Tallmadge, White, Wilkins, and Wright. [Some remarks on the question of proceeding to a vote without debate are found in the Congressional Debates, vol. 10, part 2, 1833-’34, page 1813.] COMPENSATION OF MR. POTTER. THURSDAY, June 5, 1834. The following motion, submitted by Mr. Wright, was considered and agreed to: “ Resolved, That the Committee on Finance be instructed to inquire into the justice and expediency of providing by law for the pay and mileage of the Hon. Elisha R. Potter from the commencement of the present session of Congress up to the time of the final decision of the contest for a seat in the Senate between the said Potter and the Hon. Asher Robbins, at the rate of pay allowed to the members of the Senate.’’ TUESDAY, June 10, 1834. On motion of Mr. Webster, Ordered, That the Committee on Finance be discharged from the consideration of the resolution relating to the claim of Elisha R. Potter for mileage and compensation. FRIDAY, June 12, 1834. The following motion submitted by Mr. Wright was considered: ‘Whereas the Hon. Elisha R. Potter did at the commencement of the present session of Congress cause to be laid before the Senate a commission from the governor of the State of Rhode Island, duly authenticated, and constituting the regular prima facie evidence to entitle him to a seat in the Senate; and . ‘Whereas the contest for the seat claimed by Mr. Potter was not finally decided by the Senate until the 27th day of May now last past, when the said seat was awarded to the Hon. Asher Robbins: Therefore, ‘‘ Resolved, That the said Elisha R. Potteris entitled to the compensation of mileage al- lowed by law to members of Congress for his travel from his place of residence, in the State of Rhode Island, to the capital, andreturning; and also to the perdiem allowance of a member of Congress for the time he actually attended at the city of Washington during the contest pending before the Senate in relation to the seat claimed by him and occupied by the Hon. Mr. Robbins.”’ On motion of Mr. Wright, Ordered, That it be postponed until to-morrow. Monpay, June 16, 1834. The Senate resumed the consideration of the motion submitted hy Mr. Wright on the 12th instant, to compensate Elisha R. Potter for mileage and per diem to the 27th ultimo, and Ordered, That it be referred to the Committee on the Judiciary. [Some remarks on the resolution are found in part 2 of the Congressional Debates already referred to, page 2021.] 182 SENATE ELECTION CASES. THURSDAY, June 19, 1834. On motion of Mr. Clayton, Ordered, That the Committee on the Judiciary be discharged from the consideration of the resolution to compensate Elisha R. Potter for mileage and attendance to the 27th ultimo. The Senate then proceeded to consider said resolution, and it was amended to read as follows: ‘¢ Whereas the Hon. ElishaR. Potter didat the commencement of the present session of Congress cause to be laid before the Senate credentials authenticated by the governor of the State of Rhode Island declaring the election of Asher Robbins void, and that said Potter had been elected by the legislature a Senator from the State of Rhode Island; and ‘“Whereas the contest for the seat claimed by Mr. Potter was not finally decided by the Senate until the 27th day of May now last past, when the said seat was awarded to the Hon. Asher Robbins: Therefore, ‘* Resolved, That thesaid Elisha R. Potter ought, under the circumstances of the case, to be paid the compensation of mileage allowed by law to members of Congress for his travel from his place of residence in the State of Rhode Island to the Capitol, and returning; and also’ the per diem allowance of a member of Congress for the time he actually attended at the city of Washington during the contest pending before the Senate in relation to the seat claimed by him, and occupied by the Hon. Mr. Robbins; and that the Judiciary Committee be instructed to prepare a bill or resolution for that purpose.” On the question to agree to the resolution as amended, it was determined in the af firmative—yeas 24, nays 22. On motion by Mr. Wright, the yeas and nays being desired by one-fifth of the mem- bers present, Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, McKean, Moore, Morris, Preston, Robinson, Shepley, Silsbee, Tallmadge, Tyler, Waggaman, White, Wilkins, and Wright. Those who voted in the negative are Messrs. Bell, Black, Clay, Clayton, Ewing, For- syth, Frelinghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Swift, Tipton, Tomlinson, and Webster. [Some remarks on the resolution are found in part 2 of the Congressional Debates already referred to, pages 2037, 2038. ] MONDAY, June 23, 1834. [The Senate having under consideration the bill entitled ‘‘ An act making appropnia- tions for the civil and diplomatic expenses of Government for the year 1834.’’] Pursuant to instruction of a majority of the Committee on the Judiciary, Mr. Clayton moved further to amend the bill by inserting the following section: ‘Suc. 4. And be it further enacted, That the Secretary of the Senate be, and he hereby is, directed to pay, out of the fund appropriated by law for the pay of members of Congress, to Elisha R. Potter, of the State of Rhode Island, such compensation as is allowed by law to members of Congress, for his travel from his place of residence to the city of Washington to claim a seat in the Senate, and for his return; and also the per diem compensation for the days he was in actual attendance at the seat of Government from the commencement of the present session of Congress until the final decision of the Senate against his right to the seat claimed by him.”’ It was determined in the affirmative—yeas 20, nays 19. On motion of Mr. Clayton, the yeas and nays being desired by one-fifth of the mem- bers present, : Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, Preston, Robinson, Shepley, Silsbee, Tallmadge, Tyler, White, Wilkins, and Wright. Those who voted in the negative are Messrs. Black, Clay, Clayton, Ewing, Forsyth, Frelinghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Tomlinson, and Webster. REPORT OF COMMITTEE. IN THE SENATE OF THE UNITED STATES. MArcH 4, 1834.—Ordered to be printed. Mr. Poindexter made the following report: The select committee to which was referred the credentials of Asher Robbins, chosen a Senator in Congress from the State of Rhode Island for the term of six years, to com- mence on the 4th day of March, 1833; and also the proceedings of the legislature of POTTER VS. ROBBINS. 183 said State, convened on the last Monday of October, 1833, declaring the election of the said Asher Robbins void, who thereupon proceeded to elect Elisha R. Potter a Senator in Congress for six years, to commence on the 4th day of March, 1833, instead of said Asher Robbins, whose election to fill said office had been declared void as aforesaid, have had the whole subject so referred to them under their serious and attentive considera- tion, and submit the following report: That it appears by the credentials of Asher Robbins and the proceedings of the general assembly of the State of Rhode Island hereto appended, and marked A, that the senate and house of representatives of said State, then sitting in the city of Providence, met in grand committee in conformity to the usage of the legislature in such cases, for the pur- pose of choosing a Senator to represent said State in the Congress of the United States; and that, on counting the ballots, it appeared that Mr. Robbins was elected by a majority of four votes, who was thereupon declared to be duly elected a Senator to represent said State in the Congress of the United States for six years from and after the 4th day of March then next following; that, having performed the duty for which the two houses had met, the grand committee was dissolved, and the members of each house repaired to their respective chambers. It further appears to your committee that on the 28th day of the same month of January his excellency Lemuel H. Arnold, governor of the State of Rhode Island, by commission in due form, bearing his signature, under the great seal of the State, did proclaim and make known the election of the said Asher Robbins as aforesaid, and caused the said commission, signed and sealed as aforesaid, to be de- livered to the said Asher Robbins, which was presented to the Senate of the United States in open session on the 4th day of February, 1833, and on motion read and entered on the journals of the Senate. By virtue of the force and effect of the aforesaid commis- sion, the said Asher Robbins, Senator-elect from the State of Rhode Island, appeared in the Senate Chamber on the 2d day of December, 1833, was duly sworn to support the Constitution of the United States, and took his seat as a member of the Senate. It further appears to your committee that at a subsequent session of the general assem- bly of Rhode Island, begun and held at the town of South Kingston in said State, on the Jast Monday of Octobor, 1833, certain proceedings were had relative to the election of the said Asher Robbins as above mentioned, which resulted in the adoption of a dec- laration or act of the said general assembly, by which the election of Mr. Robbins is declared to be ‘‘null and void and of no effect,’’ and the office vacated. Whereupon, at the same session of the general assembly the two houses met in grand committee on the 1st day of November, 1833, and proceeded to elect a Senator to represent the State of Rhode Island in the Congress of the United States for the term of six years, commenc- ing on the 4th day of March preceding, to supply the vacancy created, or supposed to be created, by the act declaring the election of Mr. Robbins null and void; and the ma- jority appearing to be in favor of Elisha R. Potter, the said Potter was thereupon de- clared to be duly elected a Senator in Congressfrom thesaid State for the term aforesaid, when the grand committee was dissolved and the members repaired to their respective chambers. That on the 5th day of the same month of November his excellency John Brown Francis, governor of the State of Rhode Island, by commission in due form, bear- ing his signature, under the great seal of the State, did proclaim and make known the election of the said Elisha R. Potter as aforesaid, and cause the said commission, signed and sealed as aforesaid, to be delivered to the said Elisha R. Potter, which was presented to the Senate on the 2d day of December last, and on the 5th day of the same month referred to this committee. The documents relating to those proceedings are subjoined and marked B. This statement of the case is deemed sufficient to show the questions which arise for the consideration of your committee, and which they now proceed to examine: 1. Was the commission of Asher Robbins made and executed in conformity with the provisions of the Constitution of the United States, and the laws and usages of Rhode Island prescribing the time, place, and manner of choosing Senators to Congress? , 2 Was Mr. Robbins, at the time of his election, eligible, according to the Constitution of the United States, to the office of Senator? 3 Was he chosen by the legislature of the State of Rhode Island? If these questions be answered affirmatively it will be unnecessary to inquire into the validity of the subsequent election of Mr. Potter, or into the power of the legislature to create a vacancy by annulling the act of their predecessors; and therefore your com- mittee limit the views which they deem it proper to take of the subject referred to them to the objections made to the commission of Mr. Robbins on the ground that the legis- lature by whom he was chosen had no power to elect a Senator to Congress, and that the governor who signed and sealed his commission was not at the time competent to exercise any power or perform any duty in his official character. These objections rest on the same general principle; and if they are supported by the facts disclosed in the case, connected with the constitution and laws of the State, it will then be proper to examine the claims of Mr. Potter to a seat in the Senate, and not otherwise. 184 SENATE ELECTION CASES. The Constitution of the United States provides that ‘‘each house shall be the judge of theelections, returns, and qualifications of its own members.’’ (Article 1, section 5.) The members of the House of Representatives are to be chosen by the people of the several States having the qualifications requisite for electors of the most numerous branch of the State legislature. The members of the Senate are to be chosen by the legislatures of each State, and the times, places, and manner of holding elections for Sen- ators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. Congress having passed no law on the subject, we must look into the statutes of the several States for those regulations and conform our action to them. The Senators from each State are equal in number, and cannot be increased - or diminished even by an amendment of the Constitution without the consent of the States respectively. They are chosen by the States as political sovereignties, without regard to their representative population, and form the Federal branch of the National Legislature. The same body of men which possesses the powers of legislation in each State is alone competent to appoint Senators to Congress for the term prescribed in the Constitution. In the performance of this duty the State acts in its highest sovereign capacity, and the causes which would render the election of a Senator void must be such as would destroy the validity of all laws enacted by the body by which the Senator was chosen. Other causes might exist to render the election voidable, and these are enumer- ated in the Constitution, beyond which the Senate cannot interpose its authority to disturb or control the sovereign powers of the States vested in their legislatures by the Constitu- tion of the United States. We might inquire, was the person elected thirty years of age at the time of his election? Had he been nine years a citizen of the United States? Was he at the time of his election a citizen of the State for which he shall have been chosen? Was the election held at the time and place directed by the laws of the State? These are facts capable of clear demonstration by proofs, and in the absence of the requi- site qualifications in either of the specified cases, or if the existing laws of the State regulating the time and place for holding the election were violated, the Senate, acting under the power to judge of ‘‘the elections, returns, and qualifications of its own mem- bers,’ might adjudge the commission of the person elected void, although in all other respects it was legal and constitutional. But where the sovereign will of the State is made known through its legislature, and consummated by its proper official function- aries in due form, it would be a dangerous exertion of power to look behind the commis- sion for defects in the component parts of the legislature, or into the peculiar organization of the body for reasons to justify the Senate in declaring its acts absolutely null and void. Such a power, if carried to its legitimate extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right of suffrage of in- dividual members of the legislature whose elections were contested might be set aside. It would also lead to investigations into the motives of members in casting their votes, for the purpose of establishing a charge of bribery or corruption in particular cases. These matters, your committee think, properly belong to the tribunals of the State, and cannot constitute the basis on which the Senate could, without an infringement of State sovereignty, claim the right to declare the election of a Senator void who possessed the requisite qualifications and was chosen according to the forms of law and the Constitution. These general views are offered to show that contested elections in the popular branch of Congress, where the people exert in their primary capacity the right of suffrage under various limitations and restrictions in the choice of Representatives from certain pre- scribed districts, open a much wider field of inquiry and investigation than a like con- test for a seat in the Senate, which is a body wholly federative in its character and organization and whose members hold theirappointments from and represent the States as political sovereignties. Your committee having regard to these rules as applicable to all contested elections in the Senate, proceed to apply them to the case now under consideration. It is admitted that the sitting member, Asher Robbins, possesses all the qualifications required by the Constitution of the United States to be a Senator in Congress, and that his commission as such is in due form according to the laws and usages of Rhode Island. These points being conceded, the remaining and the only question to be decided is, was the body by which he was chosen a Senator the legislature of Rhode Island? or was it merely an assemblage of citizens without authority to pass laws prescribing that which is right and prohibiting that which is wrong to the people of the State? On this ground both parties seem content to rest their claims to a seat in the Senate. The general assembly of Rhode Island, as at present organized, consists of two sepa- rate and distinct branches: The senate, over which body the governor presides, and the house of representatives—each chosen by the people of the State who are freemen or freeholders and entitled to vote at elections. The governor and senate are elected an- nually; the members of the house of representatives, semi-annually. To constitute a POTTER VS. ROBBINS. 185 legislature capable of enacting laws or performing any other duty confided to that body by the constitution of the State or of the United States it is essential that there should be in existence at the same time a governor or some officer authorized to perform the executive functions, a senate, and a house of representatives. In the absence of either the other branches could not perform any act which would be obligatory on the people of the State. We are then brought to the inquiry whether these component parts of the legislature of Rhode Island were assembled at Providence in January, 1833, when Mr. Robbins was elected in grand committee a Senator to Congress? It is alleged on the one hand that the governor and senate had ceased to exist in the month of May, 1832, by the expiration of the term of one year for which they had been elected and the failure of the people to elect their successors by a majority of all the votes given in, ac- cording to the constitution and laws of the State. On the other, it is maintained that the powers of the governor and senate were by law extended until their successors should be duly chosen and engaged, for which purpose special elections were ordered and held, but without success, prior to the time at which Mr. Robbins was elected. For the pur- pose of forming a correct judgment of this anomaly in the constitution of the State it is necessary to recur to the ancient charter of Charles II, of England, granted to the col- ony of Rhode Island and Providence Plantations in 1663, which has not been superseded by a written constitution since the Revolution, and to the various laws which have been enacted modifying the provisions of that charter in such manner as to adapt it to the - condition and convenience of the people of the State. By the charter certain political powers, rights, and privileges are granted to the inhabitants of the colony, among which are the following: “And further, we will and ordain, and by these presents, for us, our heirs and suc- cessors, do declare and appoint that, for the better ordering and managing of the affairs of the said company and their successors, there shall be one governor, one deputy gov- ernor, and ten assistants, to be from time to time constituted, elected, and chosen, out of the freemen of the said company for the time being, in such manner and form as is here- after in these presents expressed; which said officers shall apply themselves to take care for the best disposing and ordering of the general business and affairs of and concerning the lands and hereditaments hereinafter mentioned to be granted, and the plantation thereof, and the government of the people there.’’—Charter of R. I., page 6, Digest 1822. ‘And that forever hereafter, twice in every year, that is to say, on every first Wednes- day in the month of May, and on every last Wednesday in October, or oftener in case it shall be requisite, the assistants, and such of the freemen of the said company, not ex- ceeding six persons for Newport, four persons for each of the respective towns of Provi- dence, Portsmouth, and Warwick, and two persons for each other place, town, or city, who shall be from time to time thereunto elected or deputed by the major part of the freemen of the respective towns or places for which they shall be so elected or deputed, shall have a general meeting or assembly, then and there to consult, advise, and deter- mine in and about the affairs and business of the said company and plantations. And further, we do, of our especial grace, certain knowledge, and mere motion, give and grant, unto the said governor and company of the English colony of Rhode Island and Provi- dence Plantations in New England, in America, and their successors, that the governor, or, in his absence, and by his permission, the deputy governor of the said company for the time being, the assistants, and such of the freemen of the said company as shall be so as aforesaid elected or deputed, or so many of them as shall be present at such meet- ing or assembly as aforesaid, shall be called the general assembly; and that they, or the _ greatest part of them then present, whereof the governor or deputy governor and six of the assistants, at least to be seven, shall have, and hereby have, given and granted unto them full power and authority from time to time, and at all times hereafter, to appoint, alter, and change such days, times, and places of meeting and general assembly as they shall think fit, &e.’? * * * “And from time to time to make, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lands and hereditaments hereinafter mentioned to be granted, and of the people that do, or at any time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and constitutions so made be not contrary and repugnant unto, but as near as may be agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there.’’—Digest of 1822, pages 6, 7, 8 of Charter. ‘And further, our will and pleasure is, and we do hereby for us, our heirs and suc- cessors, establish and ordain that yearly, once in the year forever hereafter, namely, the aforesaid Wednesday in May, and at the town of Newport, or elsewhere, if urgent occa- sion do require, the governor, deputy governor, and assistants of the said company, and other officers of the said company, or such of them as the general assembly shall think 186 SENATE ELECTION CASES. fit, shall be in the said general court or assembly to be held from that day or time, newly chosen for the year ensuing by such greater part of said company for the time being as shall be then and there present.’’— Digest of 1822, page 9 of the Charter. These extracts from the charter will serve to show the original structure of the gov- ernment of Rhode Island and Providence Plantations. The charter provides that the governor, deputy governor, and assistants shall be chosen annually on the first Wednes- day of May in each and every year by a majority of the company at Newport. The deputies to the general assembly were to be chosen in the several towns for which they were elected semi-annually, and to assemble on the first Wednesday in May and the last ‘Wednesday in October, or oftener, in case it should be requisite, at such place as might be designated by law. The governor, deputy governor, assistants, and deputies, as or- ganized under the charter, formed one body, which is called the general assembly. The unlimited power granted to this body to repeal or modify the existing regulations for the government of the colony, or to adopt such new regulations as might be deemed expedient for the convenience of the people, has been exercised from time to time before and since the Revolution, when Rhode Island became one of the States of the Union. These modifications have materially changed the provisions of the charter, and estab- lished fundamental principles of government inconsistent with those recognized and or- dained by the charter, which now remains only the nominal foundation of the legisla- tion of the State. Your committee think it necessary to present a summary of these interpolations on the charter, as they furnish a practical illustration of the powers claimed and exercised in this respect by the general assembly of Rhode Island, the va- lidity of which does not seem to have been at any time questioned: 1. By the last clause of the charter above cited the election of governor, deputy gov- ernor, and assistants is required to be made at Newport on the first Wednesday of May in each year by the whole body of the freemen of the company assembled at that place in person. This is the literal requirement of the charter, and was made, we presume, in conformity to analogous customs in England and Wales in the elections for counties and boroughs. The difficulty of convening the freemen from the different towns of the. colony at the season indicated, and the expense and inconvenience attending their assem- blage at Newport for an uncertain length of time until an election could be effected, very speedily suggested a modification of this requirement. Asearly asOctober 26, 1664, a little more than one year afterthe reception of the charter, after stating the incon- veniences attending a personal voting at Newport, the general assembly ordained that ‘‘voting by proxces be enjoyed by allthe freemen of this collony, and that each freeman desiering to vote by proxy shall subscribe their names on the outside, and deliver his votts sealed up into the hands of a majestrate in the face of a towne metting lawfully called, and notice given for that porpose * * * which sayd votts shall be by such whome the General Assembly shall appoynt, opened and delivered forth as the respective choice of the several votts shall requier; provided that this order shall noe way preju- dice or discorradge any who desier to be personally present.’’—Ancient Records, page 256. This palpable departure from the original provisions of the charter continued to be the law of Rhode Island for nearly a century, viz, until August, 1760, when a different ar- rangement was substituted, but still more manifestly departing from the literal require- ments of that instrument. 2. As stated in our remarks immediately following the passages of the charter above cited, the general assembly of the colony was constituted into one body, consisting of a governor, deputy governor, and ten assistants, and so many deputies elected from the freemen of the several towns as are specifically stated in the second of those quotations. This single body was invested with all the powers, legislative and judicial, which the clauses of the charter enumerate, and acted asa single body, determining its acts by a majority of voices for the three successive years subsequent to its creation by charter. In March 27, 1666, at the suggestion of the towns of Portsmouth and Warwick, an act passed the general assembly ‘‘ concerning deputies sitting apart.’’ After stating the in- conveniences of a single assembly, they enact and declare that ‘‘it is freely agreed that the request of the towns aforesaid be granted, and ordered that the magestrates’’ (gov- ernor, deputy governor, and assistants) ‘‘sitt by themselves, and the deputies by them- selves; and that each house soe sitting have equal power and priviledge inthe proposing, composing, and propogatting any act, order, and law in generall assembly, and that nether house in generall assembly shall have power, without the concurrance of the majour part of the other house, to make any law or order to be accounted as an acte of the generall assembly.’’—Ancient Records, page 298. This law of the assembly of 1666, and not the charter, is the whole basis of the pres- ent organization of the legislature of Rhode Island, which consists, as we have before stated, as at present constituted, of two branches—a senate and a house of representa~ tives, each armed with a negative upon the other. 3. The actof August, 1760, is another and remarkable departure from the literal require- ments of the charter of King Charles. By the charter itself the whole body of freemen Mi POTTER VS. ROBBINS. 187 of the colony were to assemble, in person, at Newport, and to elect, by a major vote or the company, the governor, deputy governor, and assistants. The law of October, 1664, relaxed this provision and substituted a mixed system of voting for these officers, partly in person and partly by proxy. This continued to be in force until the session of the general assembly in August, 1760, when a law was passed entitled ‘‘ An act regulating the general election.’’? In the preamble to this act it is set forth ‘‘ that it is found, by long experience, the freemen going to Newport to put in their votes for general officers at the elections is very injurious to the interest and public weal of the colony; * - and that all the ends of voting may be as fully attained by the freemen’s putting in their proxy votes at the town meeting in their own towns, appointed by law for that purpose, agreeable to the ancient and laudable custom of most of the prudent freemen: ‘Therefore, ** Be it enacted, That, for the future, every freeman who is disposed to give hissuffrage at the election of general officers in this colony shall doit by putting in a proxy vote in the town meeting in the town to which he belongs, on the third Wednesday of April next pre- ceding the general election, agreeable to the law and well-known custom of proxing; and no freeman shall be permitted to vote for general officers at the general election held at Newport, on the’ first Wednesday in May, but only such as be members of the general assembly.’’ Thus, by this act of the legislature, the whole system of voting laid down by the charter is radically altered. The assembling of the freemen of the colony at Newport on the first Wednesday in May, as the charter prescribes, is entirely abrogated; the mixed-method of voting, partly in person and partly by proxies sent to Newport from the other towns of the colony, is also modified; and the whole system is changed to the law as it now stands, with very slight variations, viz, that the freemen, on the third Wednesday of April in each year, in their several towns, shall proceed to elect a governor, deputy governor, and assistants, and not in one body assembled in Newport, on the first Wednesday in May. The law of 1760 was deficient in one important particular, which the act of January, 1832 (the particular act now complained of), was intended to remedy. Formerly, and from the reception of the charter until August, 1760, a failure to elect general officers was a contingency not to be apprehended, because the freemen assembled at Newport would continue assembled and voting until a choice were effected. But by the act of August, 1760, the freemen were to vote in separate towns, and the votes thus given hav- ing been transmitted to Newport, were counted in the presence of the governor and as- sistants of the former year, in convention with the deputies then recently elected. If it appeared, on counting, that there was no choice by the major part of the freemen, there was no provision in this act for a second trial for these offices in the separate towns; and the body of the freemen not being assembled in Newport, it was impossible to go on in the ancient method and continue to vote till the choice was consummated. If the re- quirements of the charter, and the usages under it, had been strictly complied with, the body of the freemen would have appeared at Newport, the governor and assistants of the former year would have presided in the election, and the voting would have gone on until an election were completed. The act of August, 1760, having changed this arrangement in the manner above stated, all that the act of January, 1832, did was to follow out its provisions, and to declare that the governor and assistants of the former year should hold over, while other trials were had in the separate towns, and until an election of general officers was effected by those trials, exactly as they would have held over if the election had been made by the body of the freemen assembled at Newport. Butof the character of this act your committee will speak more particularly hereafter. 4. Your committee will barely advert to two other acts of the legislature of Rhode Island which conflict more or less with the provisions of the charter, but whose validity they believe has never been disputed; suchas the act devolving the powers and duties of governor on a person who had never been elected by the freemen to that office, in certain cases; also, the act authorizing the governor, in certain events, to appoint times and places of the meeting of the general assembly, alchough the charter provides that the as- sembly itself shall appoint such times and places; both these acts being embodied in “the act to provide for the performance of the duties of the governor in certain cases, and also for regulating the sitting of the general assembly. ’’—Digest of 1822, page 99. One other act of the general assembly deserves notice in this connection, as illustrating in a striking manner the peculiar character of legislation in Rhode Island. The bill of rights, which in all other States emanates from the people in their primary capacity, in this State is incorporated into its code of statutes in the form of an act declaratory of the rights of the people. ; ; : ; The foregoing review of the innovations made from time to timeduring the existence both of the colonial and State governments of Rhode Island on the provisions of the char- ter conferring on the people political rights demonstrates the power claimed and exer- 188 SENATE ELECTION CASES. cised by the general assembly to alter or modify, without restraint, the fandamental principles of the form of government transmitted to them by the King of Great Britain. This power has never been denied either in reference to its validity or extent. Theright of suffrage has been extended to a class of citizens who did not enjoy it under the char- ter; the elections directed to be held at Newport on the first Wednesday of May in each year are held throughout the State on such days and at such places as are provided for by law; the manner of holding and conducting elections and of returning the votes is changed; the general assembly is divided intotwo separate branches, each having a neg- ative on the action of the other, contrary to the charter, by which it is constituted into one body; a bill of rights, which properly belongs to the constitutions of the several States as a part of the fundamental law, has been given to the people of Rhode Island by a simple act of legislation. These, and many other primary principles, are to be found in the code ofstatute law of that State, while of theancient charter there seems to be scarcely avestige remaining untouched, except that clause which prohibits the enactment of any law contrary to the laws of England, and this became obsolete by virtue of the Revolution. The people of the State have ratified all these changes, not only by their silent acqui- escence, but by their positive sanction. The power to make them was necessary to the welfare of the people, and was wisely reserved in the precise words of the charter. Your committee can perceive nothing in theact of January, 1832, entitled ‘‘An act in addition toan act entitled ‘Anact regulating the manner of admitting freemen, and directing the method of electing officers in this State,’ *’ which assumes a power different in its charac- ter from that which had been previously recognized as appertaining to the general assem- bly. The necessity of proper precautions to prevent an interregnum in the government of the State was seen and duly considered by the legislature. They believed it to be not only possible but highly probable that the people might fail at the regular annual elec- tion to choose a governor, heutenant-governor, and a sufficient number of senators to form a constitutional quorom for the transaction of business. The result proves that this apprehension was well founded. The first section of the act declares that in case there be no choice of a governor at an annual election the house of representatives shall order a new election for the choice of a governor, and that in case no choice should then be made, that the order shall be renewed as often as the votes are returned to the general as- sembly until a governor be elected, or until such proceedings shall become unnecessary by reason of the provision of law for the next annual election; and in the mean time that the governor of the preceding year shall continue, under his former engagement, to exercise all the powers and perform and execute all the functions or duties of the office of governor until another shall be elected and engaged in his place; and shall receive such pro- portion of the salary as corresponds with the time he shall so serve. Thesame provisions are madeas to the lieutenant-governor and all the other general officers, in case ofa like fail- ure to elect those officers at the annual election. The third section of the act relates to the choice of senators (assistants), and directs that new elections shall be ordered as in the cases above mentioned and with the same limitations, unless six senators, being the requisite number to form a quorum, shall have been chosen at theannual election. The contingencies intended to be provided against by this act actually occurred. No gov- ernor nor lieutenant-governor was chosen to succeed those of the past year; the number of senators required for a quorum were not elected by the people; and, in compliance with the provisions of the act, new elections were ordered by the house of representatives where a failure to elect had happened, until in the judgment of that house ‘‘such proceedings had become unnecessary by reason of the provision of law for the next annual election.’* The general assembly, in the mean time, as at that time constituted, continued to per- form all the functions which properly belong to that body until the end of the session at Providence, January, 1833. It remains then to be inquired, was this body so assem- bled the legislature of Rhode Island? The law by virtue of which they continued to ex- ercise the powers of legislation is said to be repugnant to the charter, and therefore void. If this be asound objection it at once annuls every part of their proceedings, and as anec- essary consequence, that of choosing a Senator in Congress. Your committee are unable to find any clause in the charter which forbids the exer- cise of such a power as that claimed by thepassage of the act of January, 1832. It seems, on the contrary, to have been the intention of the-crown to perpetuate the existence of the legislative power in the colony by an express provision—that theauthority, office, and power of the governor, deputy governor, and assistants shall cease and determine when their successors shall be elected and engaged, and not at the expiration of the term for which they were respectively chosen. The construction of this clause of the charter has been uniform from the commencement of the government up to the present time. The governor, deputy governor, and senators (assistants) of the preceding year, at the opening of each annual session of the legislature in May, take their seats, and join the house of representatives in grand committee and continue toact until their successors are engaged. ‘This is abundantly sufiicient to prove that they hold over, as a matter of course POTTER VS. ROBBINS. 189 for the purpose of organizing the members newly elected to succeed them; and it does not seem to be material whether the time required for the performance of this duty be one or more days; for the same principle under which they hold over for a single day would apply to a longer time if it should be required to complete the organization. But it is not necessary to resort to this provision of the charter, or to the practice under it, to estab- lish the validity of the power topass the act of January, 1832. The general power given in the charter to the legislature, ‘‘from time to time to make, ordain, constitute, or repeal such laws, statutes, orders and ordinances, forms and ceremonies of government and magis- tracy as to them shall seem meet,’’ without limitation, is broad enough to cover the whole ground assumed in justification of that act. If Rhode Island had followed the example of her sister States of the Union, and adopted a written constitution, it will not be denied that this power to continue in existence the legislative body until their successors should be chosen and engaged might have been given inthatinstrument. Shall we then deny to her the right to effect the same object by law when the people have, by a long and unin- terrupted acquiescence in that mode of fixing the fundamental principles of the government, imparted to such laws the force and efficiency of a constitutional provision emanating from a convention chosen for that special purpose? Your committee hold itto be an undeni- able principle, applicable to all forms of government, that there must exist in the supreme legislative power of the State a capacity to preserve itself from annihilation. Waiving, therefore, all the considerations arising out of the charter and the immemorial usage of the State, which might be safely relied upon to justify the act in question, there are other grounds on which the exercise of the power claimed may be sustained and vindi- cated. The constitutions of the several States are, in the broadest sense, popular, ema- nating directly from the people, and subject to be modified and amended as the people may think proper. The legislative power embraces every object without distinction which is not expressly prohibited by a declaration of rights or an article of the Constitu- tion. Thestructure of the State governments differs in this important respect from the Government of the United States, which is restricted in its sphere of action to the dele- gated powers and such as are necessary and proper to carry them into effect: On this prin- ciple, the legislature of Rhode Island, in the absence ofa written constitution, could only - be restrained in the extent of its powers by some negative provisions of the charter or of the bill of rights subsequently adopted for the better security of the people in the enjoy- ment of liberty. In neither of these, nor in any other actor instrument now in force, is there to be found any prohibition of the power to continue over an existing legisla- ture until their successors shall be duly chosen and engaged. The actof January, 1832, was deemed to be necessary to preserve the government from dissolution, and to pro- vide for new and extraordinary elections by the people. It has been sanctioned by the people by their action under it, in their primary capacity, and by the constituted au- thorities of their State in the several departments. All the laws, either of a private or general nature, passed by the legislature at their several sessions from the first Wednes- day of May, 1832, to the close of the session, January, 1833, are now in full force and operation. The highest judicial tribunal of the State was composed of judges elected in grand committee of the two houses at the August session, 1832, and their commissions were issued under the great seal of the State and the signature of the governor, who was continued in office by the provisions of the act of January, 1832. Your committee could not expect to find evidence more satisfactory of the character of the body by which Asher Robbins, the sitting member, was elected a Senator to Congress in January, 1833. TheConstitution of the United States expressly declares that ‘‘ the Senate of the United States shall be composed of two Senators from each State chosen by the legislature thereof.’? But what is the definition of the term legislature? Both its literal and tech- nical meaning is, ‘‘ the power that makes laws.” It is the highest attribute of sover- eignty, and merges all other powers when it does not transcend the limitations contained in the fundamental constitution of the State. When, therefore, we find that during the existence of the general assembly, one branch of which was continued and held their seats by virtue of the law of January, 1832, this legislature passed fourteen laws of a general nature and twenty-eight private acts, many of them acts of incorporation, be- sides numerous resolutions on various subjects falling within the range of legislative power, a schedule of which is hereunto annexed, marked C; and when these laws and resolutions remain on the statute-book of Rhode Island in full force and effect, sanctioned by judicial decisions, and tacitly submitted to by the people over whom they operate, it would seem to your committee a very dangerous assumption of power in one branch of Congress, or even in every department of the General Government combined, to inter- fere with the internal regulations of the State, and to denounce the body by which these laws and resolutions were passed as a mere assemblage of citizens without any public authority whatever, and not the legislature of the State. Such a power does not belong to the Federal Government, and would, if claimed and carried out to its full extent, an- 190 SENATE ELECTION CASES. nihilate all the reserved rights of the States. It is a general principle of national law. applicable to all distinct and independent governments, that if there arise any disputes in a State on the fundamental laws and public administration, or on the prerogatives of the different powers of which it is composed, it is the business of the State alone to judge and determine them in conformity to its political constitution. No government has a right to intrude into the domestic affairs of another State and attempt to influence its deliberations or to control itsaction. This principle is recognized. in the Constitution of the United States, by which the respective States united and formed themselves into a federal republic. Conceding, as we feel bound to do, to the State of Rhode Island, in common with all the other States of the Union, the power to decide for itself all ques- tions relating to its domestic policy, there would seem to be no ground on which to rest a doubt that she has decided, in the most solemn manner, the character and powers of the body by which Mr. Robbins was chosen a Senatorto Congress. They passed numer- ous laws which arein full force. They elected judges of the supreme court of the State, who have taken a new engagement or oath of office, and accepted new commissions from the governor; entered on their official duties, and condemned to death a citizen found guilty of a capital offense against the laws of the State. They received compensation out of the treasury of the State for their services, and disbursed the public money neces- sary for the support of the government. No question has arisen touching or impugn- ing the validity of any one of these acts because they were passed or performed by an incompetent body, with the single exception of the attempt made by asucceeding legisla- ture to vacate the election of Mr. Robbins. Your committee cannot omit to refer to the preambleof the act annulling that election, in which the legislature fully recognize their predecessors as ‘‘ the general assembly ’’ of the State. Theonly ground assumed to jus- tify the act declaring the election null and void is comprised in asingle sentence of the preamble, in the following words: “‘ Whereas the general assembly which elected Asher Robbins a Senator to the Senate of the United States on the 19th day of January last did not comply with the provisions of an act entitled ‘An act in addition to an act entitled ‘‘ An act regulating the manner of ad- mitting freemen, and directing the method of electing officers in this State,’’’ by virtue of which the members of one branch of said assembly then held their offices, but proceeded prematurely therein, and the said election is therefore void, and ought so to be declared by this assembly: Therefore, Be it enacted, &c.”’ Again, the same legislature at their session held in May, 1833, passed an act to repeal the law of January, 1832, in the ordinary form, but express no opinion that the law so repealed was null and void, and thereby admit its validity up to the date of the repealing act. It is worthy of remark, also, that the same legislature at the session held in Octo- ber, 1833, passed a special act to carry into effect an act of the legislature passed in January, 1833, changing the modeof electing representatives to Congress, and declaring that a plurality of votes should in future decide the election in certain cases, contrary to the former and long established law of the State, by which a majority of all the votes polled at any such election was necessary toa choice in allcases. Thus the power of the legislature assembled in January, 1833, to enact this important law is fully acknowledged and conceded by their successors, while their power to elect a Senator to Congress is de- nied and declared null and void. Your committee advert to these acts as conclusive in reference to the character of the body of men which elected Mr. Robbins. If they were competent to bind the people of the State by general laws, which is nowhere contested, they could only exercise such a power in their capacity as the legislature of the State, and as such it was their constitutional right and incumbent duty to choose a Senator to Congress. There was but one governor and but one senate in the State claiming to be a part of the general assembly. If there had existed another body of men, however chosen, contending for the offices of the governor and senatorsin the State, it will not be denied that their respective rights might be the subject of inquiry in deciding a contested election in the Senate of the United States. But in the absence of any such conflicting claims to these offices when only one legislative body was known in the State which exercised all the power and performed all the functions of the legislature, and whose acts have in every form and by every department of the government been declared valid, it would seem to be a palpable invasion of the sovereignty of the State to abrogate its laws and overthrow its government by denying that a body capable of exercising the powers of legislation existed in the State after the term for which a governor, lieutenant-governor, and senators chosen at the annual election in April, 1831, had expired. To annul the election of Mr. Robbins would involve all these absurdities, and must be productive of confusion and anarchy in the State of which he has been chosed a Senator in Congress. The time at which the election took place and the manner in which it was conducted were .n strict conformity to the laws of Rhode Island. The two houses met in grand committee according to law at the session of the general assembly next preceding the expiration of the term of serviceof Asher Robbins, then a Senator in Congress, and elected POTTER VS. ROBBINS. 191 him for another term of six years, to commence on the 3d day of March, 1833, and then the grand committee assembled for this purpose was dissolved. The choice was made by the legislature of the State, whose laws are held to be valid and binding throughout the State; they command and receive obedience from the people. No objection is made or can be made either to the time or manner of the election. TheSenator elected has all the requisite qualifications demanded by the Constitution, and his commission or credentials were in due form delivered to him and presented to the Senate. Your committee hold this to be a vested right, the obligation and effect of which no subsequent legislature of that State could impair; still less had they authority to proceed to the election of another Senator until the seat of the Senator-elect had been vacated by a solemn decision of the Senate of the United States. With these views of the subject referred to them, your committee recommend the adoption of the following resolution: Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate. A. STaTE oF RuoDE ISLAND, &c., Saturday, January 19, 1833. In grand committee, elected Asher Robbins Senator in Congress for six years from the fourth of March next. Robbins 41: Potter 25: Pearce 12. Grand committee rose. True copy from senate journal. HENRY BOWEN, Secretary. CREDENTIALS OF THE HON. ASHER ROBBINS. By his excellency Lemuel H. Arnold, governor, captain-general, and commander-in-chief of the State of Rhode Island and Providence Plantations: Be it known that Asher Robbins, of Newport, in the State aforesaid, qualified accord- ing to the Constitution of the United States for a Senator in the Congress thereof, was by the legislature of said State, at the session thereof holden by adjournment at Providence on the second Monday of January instant, elected a Senator from said State in the Con- gress of the United States for six years, commencing on the fourth of March next. In testimony whereof I have hereunto set my hand and caused the seal of said State to be affixed, this twenty-eighth day of January, in the year of our Lord one thousand eight hundred and thirty-three, and of independence the fifty-seventh. [L. 8.] LEMUEL H. ARNOLD. By his excellency’s command: HENRY BOWEN, Secretary of State. VACATING ACT. ‘ State of Rhode Island and Providence Plantations, in general assembly, October session, A. D. 1833. Whereas the general assembly which elected Asher Robbins a Senator to the Senate of the United States on the nineteenth of January last did not comply with the provisions of an act entitled ‘(An act in addition to an act regulating the manner of admitting free- men and directing the method of electing officers in this State,’ by virtue of which the members of one branch of said assembly then held their offices, but proceeded prema- tarely therein, and the said election is therefore void, and ought to be so declared by this assembly: Therefore, Be it enacted by the general assembly, and by the authority thereof it is enacted, That the said election be, and the same is hereby, declared to be null and void and of no effect; and the office is voy neal to be vacant. True copy of recor itness: rm HENRY BOWEN, Secretary. 192 SENATE ELECTION CASES. By his excellency John Brown Francis, governor, captain-general, and commander-in-chief of the State of Rhode Island and Providence Plantations : Be it known that the name ‘‘ Henry Bowen” to the aforewritten attestation sub- scribed is the proper handwriting of Henry Bowen, esquire, who at the time of subscrib- ing the same was secretary of the State aforesaid, duly elected and qualified according to law: Wherefore, unto his said attestation full faith and credit are to be rendered. In testimony whereof I have hereunto set my hand and caused the seal of said State to be affixed at Providence this fifteenth day of November, in the year of our Lord one thousand eight hundred and thirty-three, and of independence the fifty-eighth. [L. s.] JOHN BROWN FRANCIS. By his excellency’s command: HENRY BOWEN, Secretary. B. CREDENTIALS OF ELISHA R. POTTER. By his excellency John Brown Francis, governor, captain-general, and commander-in-chief of the State of Rhode Island and Providence Plantations : Be it known that Elisha R. Potter, of South Kingstown, in the State aforesaid, qualified according to the Constitution of the United States for a Senator in the Congress thereof, was by the legislature of said State, at the session thereof holden at South Kingstown on the last Monday in October last, elected a Senator from said State in the Congress of the United States for six years, commencing the fourth day of March last. In testimony whereof I have hereunto set my hand and caused the seal of said State to be affixed at Providence the fifth day of November, in the year of our Lord one thou- sand eight hundred and thirty-three, and of independence the fifty-eighth. [u. s.] JOHN BROWN FRANCIS. By his excellency’s command: HENRY BOWEN, Secretary. C. Public acts passed by the general assembly of Rhode Island and Providence Plantations from May, 1832, to the close of the session, January, 1833. 1. An act relating to the Burrillville Bank. 2. An act authorizing the city council of the city of Providence to appoint a larger number of members of Engine Company No. 5. 3. An act relating to the overseers of the poor and to the asylum, in the town of Ports- mouth. 4. An act in relation to the returns of certain justices of the peace. 5. An act in further amendment of an act to establish public schools. 6. An actin addition to the acts in relation to quarantine and to the introduction and spreading of contagious and infectious sickness in this State. 7. An act authorizing certain military officers to be engaged in their commissions. 8. An act in addition to an act entitled an act appointing the several town councils in this State boards of health ex officio. 9. An act (November, 1832) in amendment of an act entitled an act relative to the election of Senators and Representatives to represent this State in Congress, and of elect- ors for the elections of a President and Vice-President of the United States. 10. An act authorizing certain military officers to take their engagements or their commissions. 11. An act to prevent hogs going at large in Washington village, in Coventry. 12. An act in relation to extrajudicial oaths. 18. An act (January, 1833) in amendment of an act entitled an act relative to the election of Senators and Representatives to represent this State in Congress, and of elect- ors for the election of a President and Vice-President of the United States. 14, An act regulating criminal process in certain cases. POTTER VS. ROBBINS. 193 Private acts passed by the general assembly of the State of Rhode Island and Providence Planta- tions from May, 1832, to the close of the session, January, 1833. 1, An act to incorporate certain persons as a society by the name of St. James Church, at Woonsocket Falls, in Smithfield. 2. An act to legitimate Maria, the daughter of Thomas A. and Mary Ann Potter. 3. An act to authorize Henry Yates and Archibald McIntyre to put forth a lottery for the benefit of public schools. An act to incorporate the Greenville Fire Engine Company. An act to revive the charters of certain military companies. An act to incorporate the Providence Steamboat Company. An act to incorporate the Phcenix Iron Foundry. An act to revive the charters of certain military companies. . An act to amend the charter of the Providence Marine Corps of Artillery. 10. An act in amendment of an act incorporating a society by the name of the Paw- eatuck Academy Company. 11. An act to incorporate the New York, Providence and Boston Railroad Company. 12. An act to incorporate the Rhode Island and Connecticut Railroad Company. 13. An act to authorize the corporation of St. John’s Church, in Providence, to tax the pews in said church. 14. An act in addition to an act entitled an act to incorporate certain persons by the name of the ‘‘ First Universalist Society in the town of Providence.”’ 15. An act to authorize John A. Grace to hold, convey, and transmit real estate in this State. 16. An act to incorporate the Albion Village Fire Engine Company. 17. An act to incorporate the Commercial Insurance Company in Newport. 18. An act to authorize John Chatburn to hold, convey, and transmit real estate. 19. An act to incorporate the Warren Rhode Island Seaman Friends’ Society. 20. An act in amendment of an act entitled an act to incorporate the Rhode Island and Connecticut Turnpike Corporation. 21. An act to authorize John Paine and Daniel Burgess to put forth a lottery for the benefit of public schools. 22. An act to incorporate certain persons by the name of the First General Baptist Church in Warwick. ; 23. An act to revive an act in amendment of an act to incorporate the Providence and Boston Railroad Company, and for other purposes, and in amendment thereof, and in addition thereto. 24, An act to incorporate certain persons by the name of the Woonsocket Falls Baptist Society. 25. Mn act to incorporate the Gloucester and Burrillville Safe-guards. 26. An act to incorporate the stockholders of the West Greenwich Farmers’ Bank, in the town of West Greenwich. 27. An act to incorporate the stockholders of the Commercial Bank, in the city of Providence. . 28. An act to incorporate the stockholders of the Citizens’ Union Bank. In addition to the above the same general assembly, from May, 1832, to January, 1833, inclusive, passed— Thirty-one votes or resolutions liberating the persons or commuting the punishments of convicts; a Thirty-seven votes or resolutions authorizing the sales of real estates; Three resolutions authorizing persons to apply to thesupreme court for decrees of divorce; Six votes or resolutions releasing the persons of insolvent debtors on giving bond, &c. ; A resolution for the payment of the salaries of the governor and lieutenant-governor of the preceding year; A resolution for the payment of the State map; Resolutions for the payment of a great variety of accounts; Several votes authorizing new trials; And, finally, elected all the officers, civil and military, of the State, who severally took their commissions, and acted under them during the whole of that year. PCO wo gue VIEWS OF THE MINORITY. IN THE SENATE OF THE UNITED STATES. APRIL 4, 1834.—Read, and ordered to be printed. The minority of the select committee on the contested seat occupied by the Hon. Asher Robbins report: P : The undersigned, 2 member of the select committee of the Senate to which was re- ferred the subject of a contested seat in the Senate from the State of Rhode Island, the S. Doce. 11 18 194 SENATE ELECTION CASES. Hon. Asher Robbins being the sitting member and the Hon. Elisha R. Potter claiming the seat occupied by the said Robbins, entertaining opinions and views different from those expressed by the majority of the said committee in their report submitted to the Senate on the 4th day of March instant, respectfully submits the following report: The course adopted by the committee to settle the facts upon which their opinions were to be formed was to call upon the parties to the controversy for statements of the facts which they wished to prove, or which each wished admitted by his opponent, as being, in their estimation, material to their respective claims. This call was answered by Mr. Potter by the statement signed by him, and dated 11th December last, which is hereto annexed, marked D. Mr. Robbins replied to this statement of Mr. Potter by the paper hereto annexed, marked E. This reply of Mr. Robbins was submitted to Mr. Pot- ter, and drew from him the additional statement signed by him, and dated 31st Decem- ber last, which is hereto annexed, marked F. Here the statements of fact closed, and Mr. Potter was called upon for such arguments as he might choose to submit to the committee, when he returned the paper annexed, signed by him, dated 21st January last, and hereto annexed, marked G. To this argument Mr. Robbins replied by the paper signed by him, dated 24th January last, and hereto annexed, marked H. Mr. Potter rejoined by the paper signed by him, dated 3d February last, and hereto an- nexed, marked I. In this state the case was submitted to the committee, each party having accompanied their statements with such proofs from the journals of the legisla- ture of their State and other public records as they considered required. Most of the points established by the proofs submitted are fully admitted and agreed upon by the parties in their statements of fact, and therefore such of them only will be referred to and annexed as may be found material to establish facts not so admitted. The state- ments and arguments of the parties are annexed, because the undersigned considers the question one of the highest importance, and that it is proper the Senate should see fully the facts which the immediate parties to the controversy have considered in any way material, the arguments by which they have sought to direct the judgments of the mem- bers of the committee, and the conclusions they have formed upon the points raised. The majority of the committee, in the view they have taken of the subject, have not considered it important to print these statements, or but avery small portion of the proofs submitted, but as the course of reflection pursued by the undersigned and the opinion he has formed has been governed by the facts disclosed in these papers, and as the parties have so intermixed fact and argument in all their statements that the one cannot well be separated from the other, he feels that he may not be borne out in his facts without annexing to this report these statements entire, while he is sensible that the arguments he shall offer will be mostly repetitions of those which the parties have presented to him. That both of the parties have assumed positions which are untenable, as well as positions which are wholly irrelevant, is clear to his mind, as he does not doubt it will be tothe judgment of the Senate; but he still thinks they have not omitted the true and material points of the controversy, and that their suggestions may do that justice to the subject which it will not receive from any effort of his. The undersigned believes that,as to most of the facts assumed by the majority of the committee there will be no dispute; but as there are facts in the case which he considers material, and to which the majority of the committee do not refer in their report, a reference to the statements of the parties and to some of the proofs will be necessary to authorize him to use those facts to sustain his conclusions. And if, under this impression, he should connect with this report any portion of the documents before the committee, which upon examination may not’ appear to have been necessarily so connected, he feels sure that the Senate will find his excuse in the conviction he is under that the novelty and impor- tance of the question demands a full exhibition of the facts and arguments which are material and relevant, and that the safe course is to withhold nothing which may be important, though that course may lead to the examination of much which is unimpor- tant. : Having reference to these statements, and to such other documents as shall be here- after referred to, the undersigned makes the following relation of facts upon which he supposes the decision of the question submitted to the committee must mainly rest. Charies II, King of England, in the year 1663, granted to his colony in America known as the colony of Rhode Island and the Providence Plantations (now the State of Rhode Island) a charter for its civil government, which was submitted to the people of the colony and adopted by them, and thus became the fundamental law of the colonial government. (See the paper annexed, duly certified, and marked K.) The said charter provided, among other things, that ‘‘for the better ordering and managing of the affairs and business of the said company and their successors there shall be one governor, one deputy governor, and ten assistants, to be from time to time constituted, elected, and chosen, out of the freemen of the said company for the time be- ing, in such manner and form as is hereafter in these presents expressed.’? (See the Charter, page 6 of the Laws of Rhode Island, Digest of 1822.) POTTER VS. ROBBINS. 195 The charter appointed the first governor, deputy governor, and assistants ‘‘to con- tinue in the said several offices, respectively, until the first Wednesday which shall be in the month of May now next coming. (See same page as above.) The charter further provided ‘‘ that for ever hereafter, twice in every year, that is to say, on every first Wednesday in the month of May and on every last Wednesday in Octo- ber, or oftener in case it shall be requisite, the assistants and such of the freemen of the said company, not exceeding six persons for Newport, four persons for each of the respect- ive towns of Providence, Portsmouth, and Warwick, and two persons for each other place, town, or city, who shall be, from time to time, thereunto elected or deputed by the major part of the freemen of the respective towns or places for which they shall be so elected or deputed, shall have a general meeting or assembly, then and there to consult, advise, and determine in and about the affairs and business of the said company and plantations.’’ (See Charter, page 7, Digest of 1822.) The charter further provided ‘‘that the governor, or, in his absence, or by his per- mission, the deputy governor of the said company for the time being, the assistants, and such of the freemen of the said company as shall be so as aforesaid elected or de- puted, or so many of them as shall be present at such meeting or assembly as aforesaid, shall be called the general assembly, and that they, or the greatest part of them then present, whereof the governor or deputy governor and six of the assistants, at least to be seven, shall have, and have hereby, given and granted unto them full power and author- ity,’’ &c.; thus constituting the legislative body for the colony. (See Charter, same page as last above. ) The charter further provided for the election, time of election, and term of office of the governor, deputy governor, and assistants, in the following words, to wit: ‘‘And fur- ther, our will and pleasure is, and we do hereby, for us, our heirs and successors, estab- lish and ordain, that yearly, once in the year, for ever hereafter, namely, the aforesaid Wednesday in May, and at the town of Newport, or elsewhere if urgent occasion do require, the governor, deputy governor, and assistants of the said company, and other officers of the said company, or such of them as the general assembly shall think fit, shall be, in the said general court or assembly to be held from that day and time newly chosen for the year ensuing by such greater part of the said company, for the time being, as shall be then and there present.’’ (See Charter, page 9, Digest of 1822.) No charter was granted to this colony by the crown of Great Britain subsequent to that of Charles II above mentioned and previous to the American Revolution, but the colony remained subject to the provisions of that charter so long as it remained a British colony; and the people of the State of Rhode Island, since the Revolution, have formed no constitution of government, but have continued the system of government existing with them at the time of that event, having only changed their allegiance. From the time of the adoption of the charter in 1663-’64 by the people of the col- ony up to the year 1831 no change had taken place in the qualifications for the offices of governor, deputy governor, or assistants, or in the terms of their respective offices, but all those officers were elected annually during all that period. The official name of the deputy governor had been changed in the laws to that of lieutenant-governor, the -official name of assistants to that of senators, and the official name of the deputies to that of representatives; but these changes of official names or designations were not accom- panied by any changes of official powers or duties. The charter contemplated that all the freemen should assemble at Newport, ‘‘ or else- where if urgent occasion do require,’’ and should vote at the same poll for their gov- ernor, lieutenant-governor, and senators. This mode of voting was partially changed soon after the granting of the charter, and a privilege was given to each freeman to at- tend at Newport and vote in person, or tosend his vote by aproxy. The increase of popu- lation in the colony and its diffusion over a large extent of territory in the course of time induced the legislature to extend this system of voting by proxy, and to provide for the holding of a poll in each town on the day of an annual election, giving to the freemen of the towns the right to prepare a written or printed ballot containing the names of the persons for whom each should choose to vote for governor, lieutenant-governor, and sen- ators, and all such other general officers as were to be voted for, or asthe voter should choose to vote for, with proper designationsas to the office designed for each person voted for; which ballot, soprepared, with the full name of the voter written upon the back thereof, he was at liberty to deposit in the ballot-box of his town. Accurate poll-lists of the persons voting were to be kept, and after theclose of the poll the ballots so deposited in the box and the in- dorsement of the name of the voter on the back thereof were to be compared with the poll- list, and when found to agree the original poll-list was to be deposited with the town clerk of the town forthe inspection of the freemen thereof, and a copy of the same poll-list, together with the ballots so taken, carefully sealed up by the persons having charge of the poll, was to be delivered to the member of the house of representatives elected for the town, or to a senator, to be by him taken to Newport, and there delivered in the general assem- 196 SENATE ELECTION CASES. bly on the day fixed by the charter for the election at Newport of the governor, lieuten- ant-governor, and senators, and other general officers. On that day the house of repre- sentatives newly elected for the half year then next following take the oath of office, and then proceed to open and count these votes so sent to them for the choice of a gov- ernor, lieutenant-governor, and senators, and such other general officers as are to be elected, to compare the votes with the poll-lists also sent and to pronounce the result; and the governor, lieutenant-governor, and senators elected, if any such officers are elected by a majority of all the votes thus given, the result being pronounced, take the oath of office, and the legislature is organized. This system of voting was substantially adopted by the colony as early as the year 1760, and has ever since been and still is the manner in which the freemen of Rhode Island vote for their governor, lieutenant-governor, senators, and other general officers. (See the statements of the parties annexed, and particularly the act of August, 1760, marked L.) The charter seems also to have contemplated that the whole legislature should have formed one body or aggregate mass; but soon after the granting of the charter the prac- tice was adopted of forming one house of the governor, lieutenant-governor, and assist- ants, or senators, called the senate, and another house of the representatives elected by the towns, called the house of representatives, and for the purposes of legislation of having the two houses set apart and act separately, each exercising equal legislative powers, and of consequence each having a negative upon the action of the other. This practice is still continued in the organization of the legislature of Rhode Island for legislative purposes, though when acting executively, or acting in the election of a Senator torepresent the State in the Senate of the United States, the two houses still act together as one body, and in that State are termed by the laws and practice of the Government “The Grand Committee.” (See Laws of the State and Journals of the Legislature. ) The time fixed by the charter forthe annual elections of governor, lieutenant-governor, and senators is the first Wednesday in May; and to give time for the freemen to hold the polls in their respective towns, and to have their proxies delivered at Newport by the day required, the law prescribes the third Wednesday in April, in each year, for hold- ing the town meetings, and for receiving and sealing up the proxiesin the manner before related. (See page 94 of the Digest of 1822.) Pursuant to these regulations an annual election for governor, lieutenant-governor, and senators was held in the State of Rhode Island on the third Wednesday of April, 1831; and upon counting the proxies returned to Newport on the first Wednesday in May thereafter, the day fixed by the charter, there appeared to have been a governor, lieu- tenant-governor, and eight of the ten senators duly elected. These, constituting more than a quorum of the senate, were duly sworn, and, together with the house of represent- atives, composed the legislature of the State; but no attempt was made to fill the two vacancies in the senate. No question has been made before the committee, or is understood to exist, as to the proper organization of this legislature, or as to its powers as the legislature of the State— the senate for one year from the first Wednesday in May, 1831, and the house of repre- sentatives from the same first Wednesday in May until the last Wednesday in October of the same year. . A new house of representatives was duly elected, and qualified on thelast Wednesday in October, 1831, which, together with the senate before mentioned, again constituted a regularly organized legislature of the State, with all the powers possessed by any legis- lature of Rhode Island. This legislature, in January, 1832, being regularly convened for the transaction of busi- ness, passed an act providing, among other things, that, in case of a failure, at any an- nual election by the people, of the election of a governor, lieutenant-governor, or a quorum of the senate, such of those officers as had been elected previously, and who should then be the incumbents of the offices, and in whose places no others should be elected, should continue in the respective offices, and to possess the powers and discharge the duties thereof until others should be elected and duly qualified to take their places. (See a copy of this act annexed, marked M.) The annual election pursuant to the law, for the election ofa governor, lieutenant-gov- ernor, and senators was again held in the towns on the third Wednesday in April, 1832, and the proxies of the freemen of the State taken and sealed up in the usual form; andon the first Wednesday in May thereafter those proxies were opened and counted at New- port; when it was found that no election of governor, lieutenant-governor, or any sena- tor had been made, no person having received the majority of all the votes given for any one of those offices. (See the statement of the parties annexed. ) The governor, lieutenant-governor, and eight senators elected in 1831, and whose of- ficial terms, according to all previous practice of the government, expired on that day, continued to act as the governor, lieutenant-governor, and senators of the State until the first Wednesday in May, 1833, just two years from the time of their last electionand i POTTER VS. ROBBINS. 197 qualification for their respective offices, there having been, in the mean time, between the first Wednesday in May, 1832, and the first Wednesday in May. 1833, five several elections for the choice of persons to fill these offices, the first four of which were special, and held in obedience to a provision contained in the act of January, 1832, before re- ferred to and hereto annexed, and were all unsuccessful; and the fifth was the regular an- nual election for 1833, held on the third Wednesday in April in that year, in obedience to the general election law of the State, when an election was made of a governor, lieu- tenant-governor, and eightsenators, who took the oaths of office and entered upon the du- ties on the first Wednesday in May, 1833. (See the statements of the parties annexed. ) During the whole of this period, from the first Wednesday in May, 1832, to the first Wednesday in May, 1833, the house of representatives of the legislature of the State of Rhode Island was in regular organization, and composed of members regularly elected at the ordinary times and in the ordinary manner of electing members to that branch of the legislature of the State, according to the established laws. (See the statements of the parties annexed. ) : On the first Wednesday in May, 1832, the Hon. Asher Robbins was a Senator in the Congress of the United States from the State of Rhode Island, and his oficial term was to expire on the 3d day of March, 1833; and, by a law of the State, its Senators in the Congress of the United States are to ‘‘be appointed at the session of the general assem- bly next preceding the expiration ofthe term of service ofthe Senator for the time being, and not before.”’? (See Digest of 1822, page 107, section 6.) In January, 1833, the body claiming to be the senate of the State of Rhode Island, and acting as such, consisting of the governor, lieutenant-governor, and eightsenators, elected on the third Wednesday in April, 1831, and who took their oaths of office and entered upon their official duties on the first Wednesday of May, 1831, and the house of repre- sentatives of the State, regularly elected and qualified, being assembled, and acting as the legislature of the State, met in grand committee, and voted for a Senator to repre- sent the State of Rhode Island in the Senate of the Congress of the United States for the term of six years from the 4th day of March then next following, when the term of Mr. Robbins would have expired. Upon counting the votes so given by the persons assum- ing to be the governor, lieutenant-governor, and senators of the State, and by the members of the house of representatives of the State present and voting, it was found that Asher Robbins had received a majority of the whole number of votes given; where- upon he was declared to be elected. (See the statements of the parties annexed. ) Pursuant to this proceeding, the person then assuming to be the governor of the State of Rhode Island, and acting as such, did, on the 28th day of January then instant, un- der his hand and the seal of the State, execute and deliver to Mr. Robbins a commission in the ordinary form, according to the laws and practice of the government of the State, for the office of Senator to represent the State in the Senate of the United States for the term of six years, to commence on the 4th day of March thereafter. The validity of this election of Mr. Robbins to this office is contested upon the ground that the persons acting as the governor, lieutenant-governor, and senators of the State, and, as such, voting fora Senator at the time Mr. Robbins’s election was made, were elected on the first Wednesday in May, 1831, ‘‘for the year ensuing,’’ and for no longer term; that, upon counting the proxies, and pronouncing the result of the election for governor, lieutenant-governor, and senators, on the first Wednesday in May, 1832, these officers be- came functus Oficii, so far as related to their election in 1831, whatever that result might be; and that the legislature of the State had not the power to continue their official terms, or official existence, beyond the limits fixed in’the charter, of ‘‘theyear ensuing”’ theirelection by the people; and the act of January, 1832, so faras it attempts to perpet- uate these officers, without a re-election by the freemen of the State, is pronounced to be contrary to the provisions of the charter, and therefore void. Upon the other side, it is contended, first, that by the charter itself the offices, pow- ers, and duties of these officers do not cease and determine until others are elected in their places; and, second, that the legislature of Rhode Island have, with the acquiescence of the people of that State, passed many laws in contravention of the charter; that the practice of the government, as shown by its legislation, proves that the charter has not been held to be the fundamental law of the State, except as to certain specific grants; and that the act of January, 1832, does not conflict with those grants, and is therefore a valid act in all its parts. In view of this part of the controversy, the discussion of the following questions ap- pears to be called for: First. Is the charter before mentioned, granted by Charles II of England to the colony of Rhode Island and the Providence Plantations, to be now considered to any, and, if to any, to what extent as the constitution of government of the State of Rhode Island, and as a constitution binding upon the legislature of that State? Second. Does that charter fix and prescribe the term of office of the governor, lieu- tenant-governor, and senators of that State ? 198. SENATE ELECTION CASES. Third. Can the legislature of that State, consistently with the powers granted to that body by the charter, extend the official terms of those officers beyond the limit fixed by the charter ? : Fourth. Can the Senate of the United States, when these questions are presented to it by the action of the legislature of the State of Rhode Island, in the purported election of a member for this body, look into, and pronounce its opinion upon them, by way of inquiry into the rights of a sitting member to the seat he occupies? : That the charter of 1663 is, to some extent, to be considered as the fundamental law of the State of Rhode Island, and, as such, binding upon, and restrictive of, the legisla- tive power of that State, is admitted by all, and has not been made a question before the committee. The extent to which it is to be so considered is a point upon which not only the parties before the committee, but the members of the committee themselves, disagree. This point, therefore, must be settled bysuch references to the history of the legislation and practices of the government and people of the State as have been laid before the committee, and by the inferences which that history shall be found to justify. The undersigned will, in the first instance, offer to the Senate some of the evidences which have operated most strongly upon his mind to show the tenacity with which the people, the government, and the legislature of that State have adhered to the charter in its inconvenient and unjust requirements; going most clearly, in his judgment, to show the strong, binding force which has been allowed to it up to this very day; and, having done this, he will review, as concisely as the importance of the subject will allow, the instances cited by the majority of the committee to show that the legislature have not regarded the charter as binding upon, or restrictive of, their powers when the public interests or the public convenience conflicted with its provisions. ‘ First. The charter fixes the standard of representation for the towns of the State in the popular branch of the legislature by giving to the town of Newport six represent- atives, to the towns of Providence, Portsmouth, and Warwick four representatives each; and to each other ‘‘ place, town, or city’’ in the State, two representatives, wholly with- put regard to population, property, or any other basis upon which representation is usually settled. By the census taken in 1830, in obedience to an act of Congress, the town of Newport, with six representatives, had a population of 8,010 souls, while the town of Providence, with four representatives, had a population of 16,833 souls; thus showing Providence with more than double the population of Newport, and with but two-thirds of its representation in the popular branch of the legislature. The town of Portsmouth has a population of 1,127 souls, a little more than one-sixteenth of the popu- lation of Providence, and a representation exactly equal to it. The town of Smithfield has a populatian of 6,857 souls, and two representatives, and the town of Jamestown has a population of 415 souls, and two representatives—equal to the representation of Smithfield. The whole county of Newport has a population of 16,535 souls, and twenty representatives, while the single town of Providence, with but four representatives, has @ population of 16,833 souls. These are some of the instances of the greatest disparity, but the statement annexed, marked N, will show the names and population and repre- sentation of all the towns in the State, and, in a condensed form, the population and representation of each county in the State. Still, the legislature of Rhode Island have never attempted to equalize the representation of the State, because the charter has been held to be the fundamental law upon the subject, and to restrain its powers in this par- ticular. Second. Elections of members to the popular branch of the legislature of the State have continued to be made semi-ahnually, because such was the requirement of the charter; and to comply with this provision of that instrument, and with the custom of the government under it, the legislature is regularly convened four times in each year. Still no attempt has been made by the legislature, though the State is small and the business of legislation for it not extensive, to alter the forms of the government in this respect. The charter has been held to be paramount to its authority, and to control its action, and the action of the people of the State, in this particular. Third. A majority of all the votes given at any election by the people has been held to be required to elect any officer of the State government, because the charter requires such majority to constitute an election; and notwithstanding that the present contro- versy has grown wholly out of that requirement, the legislature of the State has never assumed that it had the power to dispense with the rule, and to authorize the election of those officers by a less number of votes than a majority of all the votes given for the office to be filled. Here again the charter has been, and still is, to be held fundamental law. Fourth. From the granting of the charter in 1663 to the present time, with the single exception now in dispute, the governor, lieutenant-governor, and senators of the State have been elected annually, and have entered upon the duties of their respective offices on the first Wednesday in May in each year, the time prescribed by the charter; have POTTER VS. ROBBINS. 199 held their offices and discharged the duties thereof for one year, and no longer, without a re-election. In repeated instances vancancies have existed in the Senate in conse- quence of a failure to elect, by a majority of all the votes given, persons to fill all the places in that body; and those places have, without an exception, until the first Wed- nesday in May, 1832, remained vacant for the year; nor was theidea ever suggested that the incumbents of the former year could continue to hold them, or that they could be otherwise filled than by an election by the freemen of the State. Until the act of Jan- uary, 1832, the charter had ever been considered the fundamental law of the State upon this subject, and paramount to any authority existing in the legislature. Fifth. The mode of conducting elections of the general officers of the State, and the plan of voting by proxy, before detailed, is considered by the undersigned as an evidence of the strongest character to prove the rigidity with which the people and the legislature of Rhode Island have adhered to the charter to the utmost extentof the spirit of even its mi- nute provisions. The charter was granted when the colony was small, and the extent of territory inhabited was verylimited. Indeed, it is fair to presume that Newport, Provi- dence, Portsmouth, and Warwick were all the towns then containing a population of freemen, as those are the only towns named in the distribution of the representation of the colony. The population of the colony, too, must have been very small, and there- fore the charter was framed under the contemplation that the annual elections could be conveniently held at one point, and that all the freemen could conveniently assemble and vote at the same poll. The practice of a very few years exhibited the inconvenience of this arrangement, and a law was passed presenting to the choice of every voter the al- ternative of attending the poll at Newport in person or of sending his written vote in the form and manner prescribed by the law. This mode of voting was continued with- out material alteration for nearly a century, and until the year 1760. Then the system was introduced of holding a poll in each town and of requiring the freemen to deposit their proxies there for the general officers, that being, for all purposes material to this argu- ment, the same system which now prevails, and which has prevailed from the year 176U to the present time. It is true that the votes are deposited in a ballot-box in each town, but it is also true that every vote is indorsed by the full name of the freeman who gives it, written upon the back of the ballot; that all the ballots, together with accurate poll- lists of the persons voting, are carefully sealed up at the closing of these polls; that they are in that state put into the hands of a member of the legislature, whose duty it is to deliver them, unopened, in the general assembly at Newport, at the time and place when and where, by the charter, the election of the officers voted for is required to be made; that the votes are there opened and counted, and the result ascertained and pronounced in all respects in strict conformity with the requirements of the charter, except that each freeman, instead of attending in person, has sent his written ballot indorsed with his full name, and expressing his free choice. This, in the common parlance of the people of the State, is the election; and the undersigned cannot but consider it a rigid regard to, and strict fulfillment of, the provisions of the charter in their spirit and beneficial meaning, furnishing the highest evidence of the great extent to which the people and the legislature of that State have observed that instrument as their fundamental law and constitution of government. Sixth. At the January session of the legislature of Rhode Island, in the year 1824, a law was passed to provide for calling a convention to form a constitution of government for the State. The members of the convention were chosen at the annual election on the third Wednesday of April in that year, and assembled at Newport in June follow- ing, and entered upon the discharge of the duties assigned tothem. They formed a consti- tution, which was submitted to the people of the State for their adoption or rejection at town meetings holden on the second Monday of October, 1824. The constitution so formed differed widely, in many respects, from the provisions of the charter, and it was rejected by the people of the State by a vote of only 1,668 for to 3,206 against it, thus command- ing the approbation of but a trifle more than one-third of the persons voting. It is, from the nature of the case, impossible to say upon what particular grounds this strong rejec- tion was made; but it cannot be improper to remark that the constitution so rejected contained, among other provisions varying from those of the charter, the following: ‘The supreme executive power of this State shall be vested in a governor, who shall be chosen by the electors properly qualified, and shall hold his office for the term of one year from the first Tuesday in May next succeeding his election, and until his successor be duly qualified. But if no person shall-have a majority of votes, the senate and house of repre- sentatives, in joint committee, shall choose a governor, by ballot, from the two persons having the highest number of votes.”’ ; Here is a departure from the provisions of the charter in two important particulars: First, that the governor in office shall continue to hold ‘‘ until his successor be duly qual- ified,’ and, second, that in case of a failure by the people to elect by a majority of all the votes given, the legislature might fill the vacancy. It is freely conceded thatthe extent 200 SENATE ELECTION CASES. to which this provision influenced the decision of the people can never be known, and must ever remain mere matter of opinion; but it is believed that the decisive rejection of this constitution may be properly assumed as a strong evidence of their unyielding attachment to the charter with all its imperfections; and that it would be doing great violence and injustice to the patriotism and intelligence of the people of Rhode Island to suppose that this action on their part took place while they believed that they were without a written constitution of government and wholly dependent ror their funda- mental law upon the will and pleasure of their legislative bodies. Seventh. The result of the election in the State of Rhode Island in 1833, after one year of experience under the act of January, 1832, the repeal of that law by the new legislature as one of its first acts; the election again of a new house of representatives in August, 1833; the passage of the act declaring Mr. Robbins’s appointment void, in Oc- tober, 1833, and the appointment of Mr. Potter to represent the State in the Senate of the United States are considered strong evidences that the act of January, 1832, was held by the people of the State to be a violation of the charter, an usurpation of power on the part of the legislature which passed it, and calculated to retain in office men whom they had not elected and did not approve. Such are the evidences offered to show that the charter has been and is considered by the legislature, the government, and the people of Rhode Island as their fundamental law and constitution of government, to some extent not only, but to the full extent of all its material provisions, except so far as those provisions have been rendered obsolete by the American Revolution and the consequent change of that people from the condi- tion of colonists to that of citizens of a free State. The majority of the committee entertain a different view upon this subject from that here expressed, and the importance of the question, as well as a proper respect for the opinions of his colleagues upon the committee who differ with him, make it the duty of the undersigned to notice the grounds upon which they rest the conclusion to which they have come. The majority of the committee seem to consider that the power con- ferred by the charter upon the legislature of the colony ‘‘ from time to time to make, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms, and ceremonies of government and magistracy as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lands and hereditaments hereinafter mentioned to be granted, and of the people that do, or at any time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and con- stitutions, so made, be not contrary and repugnant unto, but, as near as may be, agree- able to the laws of this our realm of England, considering the nature and constitution of the place and people there,’’ grants a power to that body to make laws at variance from, and in contravention of, the provisions of the charter, if such laws ‘‘tothem shall seem meet for the good and welfare of thesaidcompany.’’ This power, they say, ‘‘ hasbeen exercised from time to time before and since the Revolution, when Rhode Island became one of the States of the Union. These modifications have materially changed the pro- visions of the charter, and established fundamental principles of government inconsist- ent with those recognized and ordained by the charter, which now remains only the nominal foundation of the legislation of the State.”’ The undersigned is unable to assent to the construction which the majority of the com- mittee seem thus to have put upon the clause of the charter above given. He supposes it to be an invariable rule for the construction of every deed or other instrument, and of every law or ordinance, that each part shall be so construed as to make it, to the great- est possible extent, harmonize with, and not be destructive of, any other part or portion of the same deed, instrument, law, or ordinance. The charter of Charles II to the colony of Rhode Island was designed as a system of civil government for the colony; it was a grant from the sovereign to a portion of his subjects for that purpose; it con- stituted certain offices, and prescribed the powers and the dutiesin a general manner which should pertain to them. These offices, it will be seen by an examination of the charter, were to constitute the legislature of the colony, and the officers who should fill them were to be the legislators of the colony. To this legislature very broad powers are granted by the charter, and the clause now under consideration is one among the clauses enumerating those powers. Other clauses give other powers, such as to elect and con- stitute ‘‘ offices and officers,’’ to grant commissions, ‘‘to appoint, order, and direct, erect and settle such places and courts of jurisdiction for the hearing and determining of all actions, cases, matters, and things happening within the said colony and plantation, and which shall be in dispute and depending there;’’ ‘‘to distinguish and set forth the sev- eral names and titles, duties, powers, and limits, ofeach court, office, and officer, superior and inferior;’’ to contrive and appoint forms of oaths and attestations; ‘‘to regulate and order the way and manner of all elections to offices and places of trust;’’ to limit and distinguish the numbers and bounds of all places, towns, and cities, which may have ‘‘the power of electing and sending of freemen to the general assembly;”’ to direct and au- POTTER VS. ROBBINS. 901 thorize the imposing of fines, mulcts, imprisonments, and executing other punishments, pecuniary and corporeal; ‘‘to alter, revoke, annul, or pardon, under their common seal, or otherwise, such fines, mulcts, imprisonments, sentences, judgments, and condemna- tions,’’ with many other powers. Now it is respectfully suggested and urged that the power ‘‘tomake, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet,’’ granted to the legislature of the colony by theclause of the charter under consideration, should be understood as applicable to the powers and duties above enumerated, and to all the other powers and duties granted and assigned by the charter to the legislature, and not as con- ferring powers above and beyond the charter which makes the grant. This construction will make the clause in question act in aid of the charter and of the objects designed to be accomplished by it, while the other construction will make all the remaining portions of ‘the charter entirely contingent and wholly dependent upon what shall ‘‘seem meet’? to the legislature. It will alsopresent the singular anomaly of a legislative body stand- ing upon the charter as a constitution of government from which it derives its existence, its constitution, its organization and being as a legislative body, and claiming a power, ted in that charter itself, to subvert the whole instrument. Sucha construction will not surely be given to this instrument when a different and at least equally natural one presents itself, which will not make the instrument a felo de se, but will make each part harmonize with the whole, and farther the purposes which the whole was intended to ac- complish. But the undersigned respectfully suggests his belief that the majority of the committee are mistaken in the extent to which they seem to suppose the acts of the legislature of Rhode Island have conflicted with the provisions of the charter. And thathe may make his views upon this point intelligible to the Senate, he will notice, as briefly ashe is able, the instances, in their order, wherein the majority think the infractions upon the char- ter consist. The first is the permission granted by the legislature of the colony to the freemen of the colony as early as 1664, one year after the granting of the charter, to send to Newport a sealed ballot, expressing the choice of each freeman sending it, for the general officers of the colony, instead of compelling each freeman to attend at Newport in person to express that choice; the ballot so sent being required to be sealed up, and to have the fullname of the voter written upon itsback, to make it a legal ballot. As the undersigned has al- ready expressed his conviction that thislaw was not a violation of the charter, but a full compliance with it in its spirit and meaning, no further remarks will be required here, the same point being again raised under the third enumeration by the majority of the committee of the infringements by the legislature upon the provisions of the charter. The second is the separation of the legislative body of the colony into two houses, each exercising equal legislative powers, and each possessing a negative upon the other, when acting legislatively. This separation took place in the year 1666, about three years after the granting of thecharter. It was undoubtedly the contemplation of the charter, as the undersigned construesits language, that the governor, lieutenant-governor, assistants, and deputies should sit together in one body, butit is not seen that the separation by which the governor, lieutenant-governor, and assistants should form one body (now the senate), and the deputies should form another body (now the house of representatives) necessarily constituted any violation of the charter in its spirit and meaning. The members were all to be elected by the people, and at the periods required by the charter, notwith- standing the separation. The same persons were to constitute the legislature of the colony, whether acting together as one body, or separately as two branches of the same legislature. The only effect, therefore, of the separation would be to restrict the legis- lative power by giving the body, small in numbers, a negative, in all cases as to legisla- tive acts, upon the more numerous body or house. This could not form a subject of complaint on the part of the crown which was one party to the charter, because the effect was to limit the exercise of that portion of sovereignty which had been granted to the colony, and not to extend it. It might have formed the subject of complaint to the people, in case it had operated as such an embarrassment upon the legislative power as to injure the public interests; but when we find that the measure was taken upon the suggestion of two of the most populous towns of the colony, and predicated upon the in- conveniences of a single assembly for legislative purposes; that it was adopted after three years only of practice under the contemplation of the charter of a single house; and that it has, from that time to the present, received the acquiescence and approba- tion of the people, the undersigned respectfully submits that this change may be well considered one of those ‘‘forms and ceremonies of government and magistracy ’’ which, to the legislature, might well ‘‘seem meet,’’ and which that body might well consider within its powers under the charter ‘‘for the good and welfare of the said company,” and not as the exercise of a power either above or beyond the specificgrants made by the charter. 202 SENATE ELECTION CASES. The third is the law of 1760, requiring polls to be held in the different towns and all the freemen to vote by proxy, and to deposit their proxies, indorsed in writing with their full proper names, in the ballot-boxes at those polls. This law, in all material par- ticulars, established the system of voting which prevails to this day in the State of Rhode Island, and the question is, does this system constitute a violation of the charter of such a character as to authorize the assumption that the people of that State have ceased to consider it the fundamental law of their State government? The undersigned is com- pelled to say that he does not so considerit; and his reasons for this conclusion are: 1st. That the violation complained of relates solely to a privilege granted to the free- men of the colony by the charter, the exercise of which, either in person or by proxy, must concern them alone, and could not afford to the crown any cause of complaint, whatever might have been the mode of its exercise, so long as that mode only proposed to effect an election by the choice of the freemen of the colony of the officers directed by the charter, and at the times and for the terms fixed by-the charter. 2d. That a continuance of the mode of election contemplated by the charter, of as- sembling all the freemen at the same place on the same day, and: having them all then vote at the same poll, had, from the increase and extension of the population of the colony, become impossible in practice. 3d. That the change of form was avowedly adopted ‘‘for the good and welfare of the said company,’’ and to the legislature did ‘‘seem meet,’’ because the expression of the choice of the freeman made by his written ballot, designating the name of each person for whom he chose to vote, and the office which he designed each person voted for by him should fill, identified by the indorsement of his full proper name upon the back thereof, and sent to Newport under seal, was securing to that freeman as perfect an ex- nai of his privilegeof voting as if he had gone to Newport to deposit that same ballot there. 4th. That for these causes the legislature well considered this change one of those ‘forms and ceremonies of government and magistracy ’’ that they might ‘‘make, ordain, constitute, or repeal, for the good and welfare of the said company,’”’ without any viola- tion of the spirit and meaning of the charter. 5th. That the only possible cause of complaint which could grow out of this change in the form of voting was the failure, upon the ballot, to make a choice of the officers to be voted for by a majority of all the votes given for each office, and that such failure was only an event, when it should happen, to operate to the inconvenience of those free- men for whose convenience the system of voting by proxy was adopted. 6th. That the system of voting adopted by the act of 1760, and, in all substantial par- ticulars, yet maintained, is the least departure from the literal and technical require- ments of the charter which could be devised.if the personal attendance of the freemen of the whole State at Newport on the same day, to vote at the same poll, is to be dis- pensed with; and therefore goes far to exhibit a determination on the part of the legis- lature and the people to conform to the strict language of the charter so far as that can be done in the present state of the territory and population over which the authority of the charter is held to be binding. The fourth infringement enumerated by the majority of the committee grows out of an act of the legislature of the State of Rhode Island entitled ‘‘An act to provide for the performance of the duties of governor in certain cases, and also for regulating the sitting of the general assembly.’’ (See Digestof 1822, page99.) By reference to the book here referred to, it will be perceived that this act also, in some form, was passed as early as 1663. Themajority of the committee find in this act what they consider two material departures by the legislative power from the provisions of the charter. The first is found in the first section of the act which devolves the duties of governor upon the lieu- tenant-governor in case the office of governor shall be vacant ‘‘by reason of no election being made by the freemen, or by the governor’s death or resignation, or in case of his absence from the State, or inability to perform the duties and functions of his office;’’ and in case of a vacancy, for similar reasons, of both the offices of governor and lieu- tenant-governor, the duties are devolved upon ‘‘the senior senator in rank for the time being.’’ To determine how far this act may be assumed as an infringement upon the provisions of the charter, or a departure from them, those provisions, so far as the office and duties of the governor and deputy governorareconcerned, should be examined; and the undersigned feels confident that such examination will not result in any necessary violation of, or departure from, the charter, to any extent whatever. The charter, in all cases, in speaking of the powers and dutiesof the governor, uses this or similar lan- guage: ‘‘And in his absence the deputy governor ;’’ thus showing that the deputy gov- ernor, in case of the absence of the governor, whether occasioned by a vacancy in the office or otherwise, is to stand in his place and discharge his duties. It will be further seen that the governor, or, in his absence, the deputy governor, is constituted the presiding officer of the senate, and of the grand committee when the two houses are acting to- POTTER VS. ROBBINS. 203 gether as one body. Now, a vacancy may exist in both these offices at the same time, or during the absence of one a vacancy may be produced in the other. Still the senate, if in session, would require a presiding officer, and this law provides for the case. Ifa vacancy be occasioned in the office of governor, lieutenant-governor, orsenator by death or removal from office, the legislature can fill the vacancy; butif vacancies for these causes should be produced in both the offices of governor and lieutenant-goverhor at the same time, the senate and grand committee would require a presiding officer and the State a person to do this duty until an election could be made by the legislature. The first section of this act is not understood to go any further than to make this provision, as the proviso would seem to negative the idea that this pro tempore governor can sign com- missions, which is believed to be the only remaining important duty to be performed by the governor of the State. This, therefore, isnot perceived to bean infringement of the charter in the sense in which it is used by the majority of the committee. The senator upon whom the duty is devolved in case the double contingency should happen must have been elected by the people as a member of the body over which he is to preside, and it is believed that by a fair implication from the charter itself the senate without this law would have had the right in the absence of both the governor and lieutenant- governor to have designated one of their body to preside over their deliberations. The provision contained in the second section of the law authorizing the governor, or the person empowered to perform the duties of governor, to convene the legislature ‘‘when any emergent occasion shall require,’’ and when the law shall not have provided for.a meeting, forms the second ground assumed by the majority of the committee un- der this head. This provision, it is believed, instead of being a violation of or a de- parture from the charter, is expressly authorized by it. At pages 6 and 7 of the charter (see Digest of 1822 of the laws of Rhode Island) will be found the following provision: ‘* And further, we will and, by these presents for us, our heirs and successors, do or- dain and grant that the governor of thesaid company for the time being, or in his absence by occasion of sickness or otherwise, by his leave and permission, the deputy governor for the time being, shall and may from time to time upon all occasions give order for the assembling of the said company and calling them together to consult and advise of the business and affairs of the said company.’’ Upon looking at the language of the charter it will be seen that its language when speaking of the legislature is most frequently ‘‘ the governor, deputy governor, assist- ants, and company,’’ and hence the conclusion is that the authority conferred in the above paragraph is to convene the legislature and not the whole body of the freemen ot the whole colony, as the charter makes it the especial duty of the legislature and not of the whole body of the freemen ‘‘ to consult and advise of the business and affairs of the said company.’’? But if this view of this point be mistaken and the authority ‘‘ to ap- point times and places of the meeting of the general assembly ”’ be, as the majority of the committee suppose, given to that body only, still it would appear to the undersigned not to be a usurpation of this legislative authority to fix those times and places so far as human foresight could measure the necessity of such meetings while the legislature should be together, and to provide that in case urgent occasion should require during any recess the governor should convene them. He cannot, therefore, view this provision in the legislation of the State as going at all to sanction the position for which it is re- ferred to, that the legislature have not regarded the charter as the fundamental law of the State. The majority of the committee draw an argument in favor of the power in the legis- lature of Rhode Island to pass laws fundamental in their character because that legisla- ture has passed an act entitled ‘‘An act declaratory of certain rights of the people of this State,’ commonly called a bill of rights. They say that this bill ‘‘in all the other States emanates from the people in their primary capacity,’’ while in Rhode Island it is a mere act of the legislature. The undersigned believes it to be true that mostif not all of the States at the formation of their respective constitutions have either incorporated into that instrument or have accompanied it by a bill or declaration of rights which in the one shape or the other has received the approbation of the people in their primary assemblies, but he also believes that no State has presented to or had adopted by its free- men a bill or declaration of rights previous to the time of the formation of a State consti- tution for such State. He further believes that most if notall of the old States had bills of rights passed by their respective legislative assemblies prior to the time of the Revolu- tion, and that those bills of rights remained with legislative sanction and authority only until the States respectively formed constitutions, and in or with them submitted to their people for their adoption their bills of rights. He therefore supposes that the majority of the committee in this instance reason from an analogy which does not exist, inasmuch as the State of Rhode Island has never yet formed a constitution, but remains in this respect as it was at the close of the Revolution, and with the same bill of rights and same form of government. Buteven if this argument should be allowed its full force it would 204 SENATE ELECTION CASES. not seem to the undersigned to prove anything asto the question under discussion. This bill of rights contains nothing which conflicts with any provision of the charter, and it would be one thing to determine that the legislature of Rhode Island possesses the power to pass laws in their character fundamental in cases where no such laws exist, and an entirely different thing todetermine that that body possesses the power to pass such laws in contravention of the provisions of the charter, that being, so far as its provisions extend, the fundamental law of the State. The majority of the committee further say in an enumeration of what they consider legislative infringements upon the charter, ‘‘the right of suffrage has been extended to a class of citizens who did not enjoy it under the charter.’’ The undersigned presumes the majority of the committee are right in the fact stated, though his acquaintance with the laws of the Statedoes not enable him to speak other than from the statement in the report; but an examination of the charter will show that this subject is expressly put within the enumerated powers of the legislature, and that therefore any extension of the right of suffrage by that body cannot be an infringement upon their chartered rights. Theincorporating clause of thecharter, after naming certain individuals, isin the follow- ing language: ‘‘And all such others as now are or hereafter shall be admitted and made free of the company and society of our colony of Providence Plantations, in the Narra- gansett Bay, in New England, shall be from time to time and forever hereafter a body corporate and politic in fact and name by the name of the Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in Amer- ica.’? (See Charter, page 5, Digest of 1822.) Among the enumerated powers of the legislature is the following: ‘‘And to choose, nominate, and appoint such, and so many, other persons as they shall think fit, and shall be willing to accept the same, to be free of the said company and body politic, and them into the said company to admit.’? No extension, therefore, by the legislature of the right of suffrage to classes of citizens who did not possess that right at the time of the adoption of the charter could be an infringement upon that instrument, as it grants to the legislature this power, in express terms, to be used as it ‘‘shall think fit.’’ This closes the notice which the undersigned proposes to take of the legislative in- fringements upon the charter mentioned and relied upon by the majority of the com- mittee to show that the legislature of Rhode Island does not, and has not for a long time, considered it as fundamental law binding its action; but there is one consideration equally applicable to all these alleged legislative encroachments, which ought not to be withheld. It is that the previous review, as well as the statements made by the ma- jority of the committee, show that they all took place before the American Revolution, and while the State was a British colony. The charter, therefore, was then strictly and legally binding, for it was a grant by deed from the sovereign to his subjects, and they could take no rights under the charter which it did not grant, and exercise no powers derived from it in a manner different from that which it pointed out. The au- thorities and people of the colony were then one party to the charter and the sovereign was the other; and holding their authority, as they all did, by virtue of the charter, any act of those authorities which was in violation of it must have been legally void. It surely would not have been permitted to the colonists, while British subjects, to say, we have disobeyed and violated the charter; we have legislated above and beyond it; we have established a government not at all in conformity to its provisions; we have introduced a mode of elections which it does not authorize; we have organized a legis- lature upon principles contrary to its requirements, and which does not acknowledge its binding force, but sets up its acts as paramount to your charter; therefore we do not hold it to be the fundamental law of the colony. Still the most material of the legis- lative acts mentioned and relied upon to show that the charter has not been held to control the action of the legislative body organized under it were passed within three years after the date of the charter, and more than a century before those to whom it was granted ceased to be the subjects of the crown from which the grant was made. Can stronger evidence be required to show that these acts were never considered as vio- lations of the spirit and meaning of the charter, either by the sovereign who granted or by the people who accepted and adopted it as their system of civil government? It would seem to the undersigned that this view of the subject must be conclusive against the interpretation given to these acts by the majority of the committee. He cannot, therefore, in any light in which he has been able to view the question, believe there is evidence to authorize the assumption that this charter of Charles II has not ever been, and is not now, considered by the people of Rhode Island as their constitution of gov- ernment to the full extent of its provisions in their true spirit and meaning, with the single exception of those portions of it which were made obsolete by the American Rev- olution. On the contrary, the evidences are clear and strong to his mind to show that it has ever been held to be the fundamental law of that State by its people, its govern- ment, and its legislature (the act of January, 1832, alone forming a material exception), POTTER VS. ROBBINS. 205 and he refers to the present basis of representation in the popular branch of the Jegis- lature, and to the present mode of conducting the elections for general officers, as con- clusive of the question. This brings the undersigned to his second inquiry, to wit: Does the charter fix and prescribe the term of office of the governor, lieutenant-governor, and senators of the State? The language of the charter itself must settle this point. The whole of the paragraph has been quoted in the statement of facts given in the early part-of this report, and a reference to that extract will show its requirement to be, ‘‘that yearly, once in the year, for ever hereafter, namely, the aforesaid Wednesday in May,’’ ‘‘the governor, deputy governor, and assistants of the said company,’’ ‘‘shall be’’ ‘‘newly chosen for the year ensuing.”’ It is respectfully submitted that this language is definite and clear; that the term of one year is fixed by it as the period of service, or official term, of the governor, lieutenant-governor, and senators of Rhode Island, by virtue of an election by the people to those offices, and that it does not admit of extension by any fair construction of the terms used or the meaning conveyed. Is there, then, anything in the charter to modify this construction of this provision? The majority of the committee seem to suppose there is, as in reference to this subject they use the following language: ‘‘It seems, on the contrayy, to have been the intention of the crown to perpetuate the existence of the legislative power in the colony by an express provision that the authority, office, and power of the governor, deputy governor, and assistants shall cease and determine when their successors shall be elected and engaged, and not at the expiration of the term for which they were respectively chosen.’’? The undersigned believes, had the majority of the committee extracted the passage of the charter to which they must have referred for the above opinion that they would have seen its want of applicability to the question they were discussing. The passage is considered as solely applicable to cases of removal from these offices by death or for cause, and not to vacancies occasioned in any other manner. As, however, the majority of the committee have seemed to consider it as susceptible of a different construction, the undersigned feels bound to give it to the Senate, that it may form its own opinion of its extent and application. It isin the following words: ‘And if it shall happen that the present governor, deputy governor, and assistants, by these presents appointed, or any such as shall hereafter be newly chosen into their rooms, or any of them, or any other the officers of the said company shall die, or be re- moved from his or their several offices or places before the said general day of election (whom we do hereby declare, for any misdemeanor or default, to be removable by the governor, assistants, and company, or such greater part of them, in any of the said pub- lic courts to be assembled as aforesaid), that then, and in every such case, it shall and may be lawful to and for the said governor, deputy governor, assistants, and company afore- said, or such greater part of them, so to be assembled as is aforesaid, in any of their as- semblies, to proceed to a new election of one or more of their company, in the room or place, rooms or places, of such officer or officers, so dying or removed, according to their discretions; and immediately upon and after such election or elections made of such governor, deputy governor, assistant, or assistants, or any other officer of the said com- pany, in manner and form aforesaid, the authority, office, and power before given to the former governor, deputy governor, and other officer or officers so removed, in whose stead and place new shall be chosen, shall, as to him and them, and every of them: re- spectively, cease and determine.’’ A careful examination of this clause of the charter will show that it first contemplates a vacancy in the office of governor, deputy governor, or an assistant by death, or, sec- ond, by removal from office, which, ‘‘for any misdemeanor or default,’’ it authorizes; and, in either case, it empowers the legislature to make an election to fill the vacancy so occasioned; and then declares that, after such election is made, ‘‘the authority, office, and power”? of the officer ‘‘ removed”? shall ‘‘ cease and determine.’’ This is the whole scope of the provision, and the majority of the committee must, therefore, have been mnistaken in supposing that it was applicable to a case of vacancy in any of these offices occasioned by a failure of the people to elect. It applies solely to elections made by the legislature; and there is no authority given by the charter to the legislature to fill a vacancy in the office of governor, deputy governor, or an assistant, occasioned in any other manner than by the death of the incumbent, or his removal from office for some ‘misdemeanor or default.” The undersigned finds no other provision in the charter which can, to his understand- ing, be possibly supposed to have any application to the official terms of the governor, lieutenant-governor, and senators; and as he cannot suppose the clause last above quoted and referred to can be understood as reaching any cases other than the two classes of cases he has mentioned, to wit, the death of the incumbent, and his removal from office for canse, he is forced to the conclusion that the charter does limit the term of office of the governor, lieutenant-governor, and senators to one year, ‘‘the year ensuing”’ the 206 SENATE ELECTION CASES. pronunciation of their election in the general assembly convened «it Newport; and that there is nothing in the other provisions of that instrument to qualify this limitation. Can, then, the legislature of the State, consistently with the powers granted to that body by the charter, extend the official terms of those officers beyond the limits fixed by the charter? This inquiry would seem to have been already answered; for, if it be admitted that the charter is the fundamental law of the State, and, as such, binding upon its legisla- ture, and that it does fix the official terms of the governor, lieutenant-governor, and sen- ators at one year, it must follow that an extension of those terms beyond the period fixed by the charter would be an act of legislation above and beyond the charter in a case where it makes express provision, and, therefore, an act of legislation not authorized by the charter, but in direct violation of it. Such are the impressions fully entertained by the undersigned; but it is his duty to notice some of the positions by which the major- ity of the committee sustain themselves in an opposite conclusion. It will at once be seen that this discussion involves the constitutionality and validity of so much of the act of January, 1832, as extends the terms of office of the governor, lieutenant-governor, and senators in case of a failure to elect by the people, and there- fore has direct reference to the arguments by which the majority of the committee sus- tain that act. The first position, in order, taken by the majority of the committee, which it is pro- posed to notice, is laid down in the following words: ‘‘ Your committee hold it to be an undeniable principle, applicable to all forms of government, that there must exist in the supreme legislative power of the State a capacity to preserve itself from annihilation.’’ This is a position to the soundness of which the undersigned cannot subscribe as ap- pages to any of the forms of government adopted by any of the States of this Union, or y the Federal Government. He supposes Congress to be ‘‘ the supreme legislative power”’ of this Government, but Congress has by the Constitution of the United States no capacity to preserve itself from annihilation. If the people should fail to elect mem- bers to the House of Representatives, or if the legislatures of the States should fail to elect members to the Senate, there would be no Congress, nor could Congress itself con- tinue itself beyond the terms for which its members have been elected, or in any other way, by its action, bring a new Congress into existence. Congress, therefore, which is the supreme Jegislative power of the United States, has not the capacity to preserve its continued existence, or to prevent its own annihilation. The undersigned, from the time allowed him to prepare this report, has not been able to examine very extensively the constitutions of the several States, nor have his former researches made him familiar with the minute provisions of those instruments; but from the examinations he has been enabled to make he entertains the opinion that no such power is conferred upon any one of the legislative bodies organized by those instruments as that of continuing itself in official existence, by its own act, beyond the term for which its members were elected. He believes that the members of the legislatures of all the States are elective by the freemen of the respective States, and in the constitutions of some no provision is made for a failure by the people to elect, and no mode of remedying such failure but that of a resubmission to the people has ever been attempted by the legislatures of those States. The constitutions of other States provide for filling the vacancies which may exist from failures to elect by the choice of such of the members of one or both branches of the new legislature as may have been elected, generally con- fining that choice to a certain number of the candidates voted for by the people for the office to be filled. Other States, where legal quorums are elected, suffer the vacancies occasioned by a failure to elect to remain unfilled until another regular election. There may be cases where the constitution of a State provides that the members of the old leg- islature shall continue to act until others are elected and qualified to fill their places, but the undersigned has been able to find no such case, nor does he believe that one ex- ists. He believes that the constitution of every State fixes definitely the length of the official term of the members of its legislature, and that without a re-election by the people, or some other re-election or reappointment prescribed by the constitution of the State, the official powers of every member of the State legislatures cease with the close of the term for which he was elected, whether any other person be or be not qualified to discharge the same duties. . Surely, in the first class of the above cases, where the State constitution makes no provision for a failure to elect, and a new election is the only remedy within the power of the legislature, ‘‘ the capacity to preserve itself from annihilation’’ does not exist in the legislature, the official terms of the members of which have expired. That capacity is in the people alone, and their election must determine the continuance or not of the legislative power. . In the second class of cases, where vacancies occasioned by a failure to elect are to be filled by such members of one or both branches of the new legislature as may have been POTTER VS. ROBBINS. 207 elected, the capacity may exist in each legislature to preserve itself but not its succes- sion; and even this must depend upon the success of the people in electing a portion of the members; for if there should be a failure to elect the whole, or if the people should hold no election, there would be no one authorized to fill vacancies, and annihilation would follow. Such a legislature, therefore, has only sub modo the “‘ capacity to preserve itself from annihilation,’ and has not at all that capacity in the sense in which the ma- jority of the committee are understood to use it, to preserve its succession. The third class, where the constitution of the State authorizes the members of the existing legislature to hold their offices and exercise their powers until others are elected or appointed and duly qualified to take their places, if indeed such a provision exists in the constitution of any one of the States, is still not a capacity which exists in the legis- lative power to preserve itself from annihilation, but a provision which exists in the con- stitution of the State to preserve its legislature from annihilation. The power or capacity is constitutional and not legislative, and, therefore, even in this class of cases does not bear out the majority of the committee in the position they have laid down. The undersigned may have misapprehended the meaning which the majority of the committee intended to give to the position itself, as they may have attached to the terms ‘supreme legislative power of the State’’ ideas which, as used, they have not conveyed to his mind. He has considered them as used in reference to the legislative bodies of the United States, and to legislative bodies acting in subjection to fundamental law para- mount to the powers of the legislative authority—indeed, from which the legislature de- rives its authority. If the position has not been taken in this sense, then the undersigned must admit that his replies to it may be a departure from the intention of the proposition ; but he must at the same time say that he thinks, in any other sense, the proposition is a departure from the argument it is used to support. The next position assumed by the majority of the committee to sustain this act of January, 1832, is that neither in the charter nor in the bill of rights, ‘‘nor in any other act or instrument now in force, is there to be found any prohibition of the power to con- tinue over an existing legislature until their successors shall be duly chosen and engaged.”’ The reasoning to support this position is that the constitutions of the several States are in the broadest sense popular, and that the legislative power granted by them embraces every object not expressly prohibited by some provision in the instrument itself, or by a bill of rights. In reference to powers legislative in their nature and character, and not enumerated or particularly granted, this reasoning and the deduction from it may be generally sound as applicable to the State constitutions. It is respectfully submitted, however, that the establishment and organization of the legislative bodies, and as a neces- sary part of that establishment and organization the limitation of the terms of the mem- bers is, under our system, a constitutional and not a legislative power, and therefore, not coming within the scope of the reasoning of the committee, cannot be controlled by the conclusion drawn from that reasoning. But in the present case this point is not left to reasoning «nd inference. We have already seen that the terms of the members of the senate of Rhode Island are specifically fixed by the charter to one year. The constitu- tion has provided for the case in terms, and its grant is positive, definite, and clear. It surely then will not be contended that this term may be extended without a violation of the grant, because the granting clause does not contain a prohibition against its viola- tion. Itis a settled rule of construction that an affirmative and positive grant, clear and intelligible in its terms, is itself a negative of what is not granted. The Constitu- tion of the United States fixes the term of a@ Senator at six years; and it surely would have been considered surplusage in that instrument to have added that the term of a Senator should be no more than six years; nor will it be supposed that Congress can pro- long that term because that negative is not affixed to the grant. This position, there- fore, cannot sustain the action of the legislature of Rhode Island in attempting by a legislative act to prolong the term of the senators of that State beyond the period limited and prescribed by the fundamental law of the State. The majority of the committee further contend that the people of the State of Rhode Island sanctioned the act of January, 1832, by holding elections pursuant to its provis- ions. The undersigned believes that in using this argument the majority of the com- mittee have not taken the proper distinction between the different provisions of that act. It has not been contended, to the knowledge of the undersigned, that those parts of the act which directed new elections in cases of failure to elect at the annual elections were unconstitutional or invalid. On the contrary, he understands that those provisions of the law are insisted upon as valid and binding, and that it is complained that the house of representatives did not carry them into effect according to their plain intent and mean- ing. It will be found to have been made a distinct point by Mr. Potter in his argu- ment that even supposing all parts of the law of January, 1832, were constitutional and valid, the election of Mr. Robbins to the Senate was improperly made, because if that law had been properly carried into effect there would have been two or three sessions of 208 SENATE ELECTION CASES. the legislature of the State between January, 1833, when that election was made, and the 3d of March, 1833, when his former term expired; while the law of the State regulating the election of United States Senators requires that election to be made ‘‘ at the session of the general assembly next preceding the expiration of the term of service of the Sen- ator for the time being, and not before.”’ His reasoning upon the subject is that it was the intention of that law that elections should be held as frequently as that could be done, the returns made, and the results ascertained, until a choice of governor, lieutenant-governor and senators should be ef- fected ; that the law fixed the period of thirty days as the longest notice which should be given of a special election to be held under it; that several of those elections were held upon a much.shorter notice, and proved that elections might be held once in thirty days without difficulty; that these elections were continued at intervals differing not very widely from this until the October session of the legislature in 1832; that after that period but one election was held under the law; that at the session in January, 1833, the legislature, instead of adjourning to such a day as would give time for another trial to elect a senate, and so continuing to do from time to time until the law made it im- perative upon them to elect a Senator, at any time before or even on the 3d day of March, 1833, then proceeded to make that election, the house of representatives having first re- solved that they would order no more elections under the law; that by this proceeding the persons acting as the governor, lieutenant-governor, and senate, under the law of January, 1832, who were elected in April, 1831, without any reference to the election of a Senator, were made actors in that election, and actually gave their votes for Mr. Rob- bins, by which votes he was elected, when, if new elections had been ordered, as they should have been, other sessions of the legislature would have intervened between Jan- uary and March, and the people would have had an opportunity to elect a governor, lieu- tenant-governor, and senate, with a view tothe election of a Senator; that the fact that an election was effected at the first trial after November, 1832, proves very clearly that had elections been ordered some choice would have been effected before March, 1833, and before the expiration of the then term of Mr. Robbins; while the total change produced by the election in the governor, lieutenant-governor, and senate proves conclusively that the public will was not represented by the former incumbents of those offices. These suggestions are given here in as condensed a form as possible, that the Senate may allow them such weight in the decision of this important controversy as this body may think they deserve. They must in any event satisfy the Senate that these elections, held in obedience to the law of January, 1832, furnish no evidence of the acquiescence of the people of that State in any of the provisions of that law other than those appli- cable to the special elections, the validity of which provisions have not been and are not now disputed. Indeed, from the fact that that law charged the house of representa- tives alone with the execution of this portion of it, an argument has been drawn that it was not the intention of the legislature which passed the act that any business of an official or legislative character should be performed by the senate after the expiration of their constitutional terms, and that the provisions in the law for the official continuance of the governor, lieutenant-governor, and senators was designed as a mere formal con- tinuance of the legislative body until an election by the people should be effected. The terms of the act, however, as will be seen by a reference to it, go very strongly to con- tradict this construction of it. Another position taken by the majority of the committee to sustain the validity of the act of January, 1832, is based upon the action of the supreme judicial court of the State of Rhode Island. The paper annexed, marked O, contains the evidence of the proceed- ings referred to. The facts seem to be thata person by the name of Miner was indicted in September, 1832, for murder; that he was tried in March, 1833, before this court, con-. victed, and sentenced to be hung in July, 1833. He presented to the court an applica tion for a habeas corpus, upon the ground that the judges had not been appointed by a competent legislature, and were not, therefore, empowered to try andsentencehim. The. court refused the application, but the grounds of the decision are not stated. It is con- tended that this decision was a pronunciation of the judgment of that court in favor of the validity of the law of January, 1832. Mr. Potter makes two answers to this point. The first is that the statute of the State expressly denies to this court the authority to grant a habeas corpus on the application of persons ‘‘committed for a capital crime,”’ “or persons convict’’ (see the Revised Laws of Rhode Island of 1822, page 181). To this it is replied, as it would seem to the undersigned, with much force, that notwith- standing the prohibition of the statute it would be competent for the court to examine such an application where the allegation was that the whole proceedings had been coram non judice, and, if such should, in their judgments, be the fact, that the case would not come within the prohibition of the statute and the writ might be granted. The second answer is that the judges of this court were the same persons from the first Wednesday in May, 1831, until the first Wednesday in May, 1833; that it is admitted on all hands . POTTER VS. ROBBINS. 209 that their appointments and terms of service were within the power of the legislature, though the practice has been to make the appointments annually; that these judges were properly appointed and commissioned in 1831; that a resolution having the force of a law is always passed by every legislature of Rhode Island declaring that all officers in whose places no others have been appointed by the legislature or who have not been themselves reappointed shall continue to hold their respective offices until others shall be duly appointed and qualified to take their places; that. asimilar resolution was passed. by the legislature in office from May, 1831, to May, 1832; that these judges did hold their offices and continue to discharge their duties as judges by virtue of their appoint- ment in 1831, and of the resolution above described until August, 1832, although their year expired in the month of May, 1832; that the body acting as the legislature in August, 1832, but whose right so to act is now disputed, did in that month assume to reappoint these judges, but it is said that if it shall be determined that this body was not the legislature of the State authorized to perform the constitutional duties of the legislature of the State, then their assuming to reappoint these judges would neither add to nor take from the powers they possessed before that act was performed; that they were continuing in office at the time by virtue of the resolution before mentioned; that they would so continue until removed from office or reappointed by a constitutional legislature; and that therefore their decision in the case referred to does not necessarily carry with it the decision of that court in favor of the validity of the act of January, 1832, because if they had decided expressly that that law was invalid and their purported re- appointment in August, 1832, void, they would still have been compelled to decide that they were in office by virtue of the resolution of the previous competent legislature as well after as before August, and, being so in office, were a competent court to try and sen- tence the criminal in question. This reasoning seems to the undersigned to follow necessarily from the facts, and to render wholly inconclusive this action of the court as a decision in favor of the validity of the law under consideration. The legislature which declared void the election of Mr. Robbins and elected Mr. Pot- ter, in the preamble to the act making that declaration denominate the body which made the election of Mr. Robbins ‘‘the general assembly,’’ and assign as the ground upon which they declare void their proceedings in that particular the non-compliance with the act of January, 1832. The majority of the committee consider this an admis- sion sustaining the validity of that act. This same legislature also, at their first session, repealed the act of January, 1832, without expressing any opinion in the repealing act that the act to be repealed was not valid. This the majority of the committee also con- sider an admission to the same effect. How far admissions by this subsequent legisla- ture, if made, would render valid an unconstitutional law passed by a preceding legis- lature, or how far such admissions are to be considered evidence of the constitutionality of such a law, when that is the point in issue, are questions which the undersigned leaves to the determination of the Senate. These admissions, however, appear to him to have been made, so far as they can be considered admissions at all, under circum- stances which should be considered. The Legislature of Rhode Island, at its October session, in the year 1833, pass an act in which they declare the election of Mr. Rob- bins to the Senate ‘‘to be null and void, and of no effect,’’ and that the office of Sen- ator is vacant; not that the office is thereby vacated, but that it is ‘‘vacant.’’ To that act they affix a preamble, in which they term the body of men which made the election that they are about to declare void ‘‘the general assembly,’’ and accuse them of a non-compliance with the law by virtue of which they held their offices; and this preamble is followed by the law which declares null and void the act referred to. Now, it would not do to assume that anything contained in this preamble was designed as an admission of the validity of the election of Mr. Robbins, because it was the sole object of it, and of the law to which it is the preamble, to declare that election void; and it will not be contended that the preamble to any legislative act is to be so construed as to contradict, defeat, and overrule the act itself, which is the only part of the proceeding having validity. This legislature, then, did not intend to admit that Mr. Robbins had been validly elected to the Senate of the United States, butto deny that fact, and to declare not voidable but void the proceeding by which he purported to have been so elected; and the preamble to the act must be so understood and construed as to be consistent with this intention. Two grounds were assumed upon which that election was void: 1st. That the law of January, 1832, so far as it purported to continue the terms of office of the governor, lieutenant-governor, and senators, was in direct viola- tion of the constitution of the State, and therefore void, and that the persons assuming to act as a governor and senate in the election of Mr. Robbins were not constitutionally a governor and senate, and were not authorized so to act. 2d. That the governor and senate for the time being held their offices, not by virtue of an election by the people, but by virtue of the act of January, 1832, and that a failure to comply strictly with the Provisions of that act had put an end to the powers they derived from it, and therefore S. Doe. 11 14 210 SENATE ELECTION CASES. that they had no power to actin the election of a Senator. The subsequent legislature ap- pear from this preamble to their act to have assumed the latter ground as the foundation of their action, and anything in the shape of an admission in the preamble would seem to be properly referable to the views they entertained, and upon which they were acting, and not to connectitself with a view of thesubject which does not appear from their pro- ceedings to have influenced their action. If, therefore, the ground assumed by this legis- lature should be held to be untenable, and the ground first above mentioned, to wit, that the act of January, 1832, so far as it purports to extend the official terms of the gov- ernor, lieutenant-governor, and senators, is in direct violation of the constitution of the State, and therefore void, be well taken, the undersigned is unable to discover that any- thing in the admissions supposed to be contained in this preamble can weaken or over- turn it. In reference to the admission supposed to be drawn from the silenceof the act repealing the act of January, 1832, the undersigned will simply remark that this was an act to repeal a law parts of which were held tobe unconstitutional and void, and other parts of which were admitted on all hands to be valid and binding as law; and under these circumstances he cannot consider the absence of a declaration pointing out those parts which were held to be unconstitutional, inasmuch as it was the object of the legis- lature to repeal the whole act, as going very far to sanction the whole act. The majority of the committee mention the action of the legislature of Rhode Island in relation to the election of members of Congress and the introduction of the plurality instead of the majority of votes to elect in the choice of those officers as going to show the extent to which the legislature have gone in regulating elections, contrary to the long- established customs of the State. Two remarks may be made in relation to this argu- ment. The first is, that the charter could not necessarily have contained any provision in relation to the election of these officers, inasmuch as it was granted for the government of a British colony, and not of the State of Rhode Island asa member of the confed- eracy of States composing this Government, and was granted more than a century before such a thing as a Congress of the United States of America was known or had exist- ence; whence, from necessity, the legislature must have full power over that whole sub- ject. Thesecond is, that the fact that the legislature of Rhode Island extended, by law, the plurality mode of election to the choice of members of Congress where the charter does not interfere, and did not extend it to the election of officers of the State government where the charter prescribes the majority principle, affords at least as strong an inference in favor of their sense of the binding and paramount influence of the charter, where it does direct, as of any disposition to treat it lightly by disregarding the mere analogy when acting upon a case not known to the charter. So much for the arguments which have been adduced by the majority of the committee to sustain the validity of the act of January, 1832. In corroboration of the point now under discussion, however, to wit, that the terms of the governor and senate can be continued beyond the year, the majority of the committee assume that these officers always have held over until the election was completed and their successors qualified. A perfect understanding of the facts, it is believed, will make this point plain. From the statments of the parties annexed, and before referred to, it is to be seen that the practice of the legislature of Rhode Island has ever been to adjourn to meet on the day previous to that fixed in thecharter for the annual election, and that pursuant to such adjournment, a quorum of both houses assemble on that day always at Newport, the place named in the charter for holding the annual elections. It is undoubt- edly true, as the majority of the committee remark, that when the people all assembled and voted at that place they might remain together until an election was effected, and that the governor and senate of the former year might remain until that result was ascertained, but there is not found any provision in the charter making them at that time presiding officers of the election or imposing upon them any other official duties after the opening of the election. The new house of representatives always assembled on the day fixed for the election, and took the oathsof office on that day. They alwaysacted as the canvassers of the votes, and the result of the election was declared by thatbody. Since the system of voting by proxy,as before described, has been adopted, the proxies havealways been returned to Newport and canvassed by the new house of representatives, as the votes given by the people there assembled formerly were. They declare the result as they formerly did, and the election is closed. If a governor, lieutenant-governor, and senate are found to be elected, the persons elected are sworn, and the legislature is organized; and as an elec- tion of a governor, lieutenant-govenor, and a quroum of the senate has never failed to be made until the first Wednesday in May, 1832, the history of the government of the colony and State furnishes no precedent for such a case as that under consideration, where the former governor, lieutenant-governor, and senators, or any of those officers, have held over and attempted to perform official acts because successors were not elected. That history does, however, present several instances where the whole number of senators have not been elected and noattempt has been made to fill the vacancies by a new election, or in any other POTTER VS. ROBBINS. 211 manner, nor have the former incumbents of the vacant seats ever claimed to hold over the terms for which they were elected, but the vacancies have in all such cases been suf: fered to remain for the year. It should be further remarked that no evidence is found to show that any election has occupied more than the day fixed in the charter, so that any presumption of a holding over of these officers in consequence of a failure to elect on that day is unsupported by evidence. From these facts it would seem to the undersigned to follow necessarily that the old governor and senate are brought together by the adjournment of the legislature to the day previous to the election; that subsequent to that day, unless re-elected, they have never had any official duty to perform, and have never performed any; that the right to hold over, in case of a failure to elect, had not been admitted in the practice of the gov- ernment under the charter, because repeated instances have happened where failures to - fill places in the senate have occurred and the incumbents have not continued to occupy them, but they have remained vacant for the whole year; that the holding over referred to by the majority of the committee has relation only to the day of election, and then these officers, unless re-elected, have no official duties to perform; and that, therefore, the holding over of the governor, lieutenant-governor, and senators of that State from the first Wednesday in May, 1832, to the first Wednesday in May, 1833, in consequence of a failure of the people to elect, was not sanctioned by any former practice of the government under the charter, and must be held to have been done by virtue of and in obedience to the act of January, 1832, and not by virtue of any provision in the charter orin conformity with any former precedent. The opinion of the undersigned as to the validity of such of the provisions of that law as assumed to extend the official terms of these officers has been given in his remarks under the two first heads of this report, where it will be seen that he has come to the conclusion that the charter is to be regarded as to this question as the fundamental law of the State, binding upon its legislature, and that it does limit specifically their offi- cial terms to one year. As it has been intimated-in some one of the statements of fact that the duty of swear- ing the new governor, lieutenant-governor, and senators devolved upon the old officers as an official act to be performed by them after the election had been effected, it may be proper to refer here to the paper annexed, marked P, to show that, for a long term of years at least, this duty has been performed by the secretary of state, and not by them. This brings the undersigned to his fourth inquiry, which is: Can the Senate of the United States, when these questions are presented to it by the action of the legislature of the State of Rhode Island, in the purported election of a member for this body, look into and pronounce its opinion upon them by way of inquiry into the right of a sitting member to the seat he occupies? Two bodies of men, calling themselves the senate and house of representatives of the State of Rhode Island, and together acting as the legislature of that State from the first Wednesday in May, 1832, to the first Wednesday in May, 1833, did, in January, 1833, assume to elect Asher Robbins to the Senate of the United States for the term of six years from and after the 3d day of March then next, to fill a vacancy to be produced by the expiration of his then term of office on the last-mentioned day. Mr. Robbins received a majority of the votes given by these two bodies of men for the office, and the election was conducted according to the forms pursued by the legislature of Rhode Isl- and in the election of Senators. The result of the election was pronounced in the usual manner, and the person acting as governor of the State at the time issued to Mr. Robbins a commission in the usual form, and authenticated in the usual manner, for the office. This commission was presented to and read in the Senate of the United States on the 4th day of February, 1833, and placed upon the files of that body. This election of Mr. Robbins was protested against by several members of the house of representatives of that State soon after it was made (see protest annexed, marked Q), and has ever since been alleged to have been void, on the ground that the personsacting as the governor, lieutenant-governor, and senators of the State at the time of the election, and aiding in making it, were not constitutionally the governor, lieutenant-governor, and senators of the State, nor authorized to perform that act, and, of consequence, that the person acting as the governor of the State, and as such signing Mr. Robbins’s com- mission, was not constitutionally the governor of the State, nor authorized to perform that act. In the month of October, 1833, two other bodies of men, admitted to be the sen- ate and house of representatives of the State of Rhode Island, were assembled and con- stituted the legislature of that State, and while so assembled this legislature passed the law to be found annexed to the report of the majority of the committee, and marked A, declaring the election of Mr. Robbins “‘null and void, and of no effect,’’ and the office to be ‘‘vacant.’? This same legislature then proceeded to elect a Senator to fill the va- cancy which they alleged existed by the expiration of Mr. Robbins’s former term in March previous, and, upon counting the votes given, Elisha R. Potter was found to hav3 219 SENATE ELECTION CASES. received a majority of the whole, and was declared to have been duly elected. The elec- tion was conducted in the usual manner, and the person admitted to be the governor of the State issued to Mr. Potter a commission for the office in the usual form, and with the proper authentications. This commission was presented tothe Senate of the United States and read in that body on the first day of its present session, and at the same time Mr. Robbins and Mr. Potter both presented themseves at the bar, and each offered to take the oath of office as a Senator of the United States from the State of Rhode Island. This is believed to be a sufficient summary of the facts to present this point intelligi- bly to the Senate. It will be seen from them that the question is raised upon the action of a body admitted on all hands to have been a constitutionally organized legislature of the State of Rhode Island, declaring ‘‘null and void, and of no effect,’’ an important act of a preceding body claiming to.be the legislature of that State, but the organization of which was peculiar, and the constitutionality and legality of whose acts are questioned. The Senate, by the Constitution, is made ‘‘the judge of the elections, returns, and qualifications of its own members,’’ and can it, under this power, look into these facts to determine which of the persons claiming the seat as a Senator from Rhode Island is entitled to represent that State in this body? No question appears to the undersigned to be raised as to the ‘‘returns”’ or ‘‘qualifica- tions’’ of either of the claimants, and he therefore considers that the question of ‘‘elec- tion’’ is the only one presented for decision. This question the Senate has the power to determine, because it is made ‘‘the judge of the elections’’ of itsown members. The facts in this case show that the legislature of the State of Rhode Island declare, in the solemn form of a law of the State, that Mr. Robbins has not been elected to the Senate; that the proceedings from which his commisson proceeded were ‘‘ nulland void, and of no effect,’’ because the body taking them were not authorized to elect a Senator; and that the place was ‘‘vacant”’ at the time when this declaration was made. Still, not- withstanding this solemn declaration by a body conceded to be the legislature of the State, Mr. Robbins produces to the Senate, and there is referred to the committee, a commission in, due form, according to the laws and the practice of the government of Rhode Island, to show that Mr. Robbins had been duly elected a Senator to represent that State in the Senate of the United States. Will the Senate look behind this com- nrission to determine whether or not it was properly granted? The undersigned believes that it is not only the right but the duty of the Senate to doso. The commission is only the evidence of the election of a Senator, and if the Senate were to limit its in- quiries to the proper form and authentication of the commission it would only make itself the judge of the evidence of an election, not the judge of the election itself. The undersigned supposes that the evidence of an election to an office is, in all cases, prima facie only, and is susceptible of being controverted and contradicted before a tribunal competent to judge of the election; he therefore supposes that the regularity of the evi- dence of an election may be one thing and that the election may be a very different thing; and he concludes that, as the Senate is constituted not the judge of the evidence of the elec- tions of its members only, but ‘‘ the judge of the elections’’ of its members, it may and, in all cases of a contested election where the contest does not arise as to the regularity of the evidence simply, should look behind the evidence and into the election itself, that it may determine what it is constituted the judge to determine, the fact of election, or, in other words, that it may determine whether the prima facie evidence laid before it is the real evidence of facts or is subject to contradiction by the facts. The terms of the Constitution would seem to confirm this construction of the powers of the Senate. Itis ‘‘the judge of the elections, returns, and qualifications of its own members.’’ The ‘‘returns’’ must refer to the commissions or other evidences of elec- tion of the members of this body as separate from the ‘‘elections’’ or ‘‘qualifications,”’ and of the ‘‘returns’”’ the Senate is the judge. Again, the ‘‘qualifications’’ must re- late to the age, citizenship, residence, and other personal qualifications of the person elected, and of these ‘‘ qualifications’’ the Senate is also the judge, and these are mat- ters to be determined separate from the ‘‘ elections’’ and ‘‘ returns.”’ So also the Senate is the judge of the ‘‘elections’’ of its members as separate from the ‘‘returns and quali- fications.’’ The three enumerations would seem to be separate subjects, upon each of which the Senate is to judge in the performance of its constitutional duty; and as a judgment upon the returns is made a separate matter from a judgment upon the election, the inference would seem to be irresistible that an examination behind the returns was contemplated, that a judgment upon the election, independent of the return, might be formed. Against this construction of the constitutional powers and duties of the Senate the majority of the committee interpose objections which are of a consequential character mostly, but which will be considered. The committee say ‘‘it would be a dangerous: exertion of power to look behind the commission for defects in the component parts of the legislature, or into the peculiar organization of the body for reasons to justify the . POTTER VS. ROBBINS. 213. Senate in declaring its acts absolutely null and void. Such a power, if carried to ita legitimate extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right of suffrage of individual members of the legislature whose elections were contested might be set aside. It would also lead to investigation into the motives of members in casting their votes for the purpose of establishing a charge of bribery or corruption in particular cases.”’ Reserving for the present the consideration of the extent to which the consequences of adjudging any act unconstitutional, or illegal, or invalid may be properly used as an argument against such an adjudication, the undersigned respectfully suggests that in his judgment the consequences here mentioned do not necessarily follow the decision ap- prehended. He understands it to be a necessary rule of all legislative bodies empowered to judge of the ‘‘ elections, returns, and qualifications’’ of their own members that the person presenting the prima facie evidence of membership is allowed to take his seat, and is fally authorized to act until such prima facie evidence of right is overruled by the judgment of the body; and he never heard it doubted or questioned that the votes of a member so sitting were as valid for all purposes as the votes of a member whose seat was not contested, and whose right to a seat was not questioned. Indeed, if it were not so the admission of a member to a seat in a legislative body until his election, return, and qualifications had been definitely adjudged would be an absurdity. It would be the admission into the body of a voter who might, by the adjudication of the body itself, vitiate its whole proceedings. So also in the case supposed by the majority of the committee of alleged bribery and corruption. The undersigned has always supposed that a member of a legislative body who should accept a bribe was punishable for the crime; but he has never understood, nor does he now understand, that the vote of the member given under the corrupt in- fluence vitiated the proceeding voted upon or rendered either void or voidable by legal adjudication such proceeding. The member bribed is still constitutionally and legally a member of the body notwithstanding his corruption, and retains all his rights and all his powers as a member until conviction for the crime ousts him from his seat. Hence it is concluded that the consequences above enumerated cannot follow the de- cision involved in the present controversy, whatever that decision may be, as the ques- tion presented is not whether the persons who did act as the governor and senate of Rhode Island, or some other persons claiming the right so to act, were the proper persons to discharge the duties of those offices; but the question is, were the persons who did so act constitutionally and legally, even by any prima facie claim, the governor and senate of that State, and as such authorized to vote upon the election of a Senator? Again, the majority of the committee say ‘‘such a power does not belong to the Fed- eral Government, and would, if claimed and carried out to its fall extent, annihilate all the reserved rights of the States. It is a general principle of national law applicable to all distinct and independent governments, thatif there arise any disputes in a state on the fundamental laws and administration, or on the prerogatives of the different powers of which it is composed, it is the business of the state alone to judge and determine them in conformity to its political constitution. No government has a right to intrude into the domestic affairs of another state, and attempt to influence its deliberations, or to control its action.’’ These principles may be perfectly sound when applied to nations wholly disconnected with and independentof each other; but the undersigned respectfully submits that they cannot be applicable to governments related to and connected with each other, as are the governments of the States of this Confederacy and the Federal Government, of which the States are component parts, and especially when the question is the proper repre- sentation of the State in that branch of the Federal Legislature where its sovereignty is represented in the particular manner pointed out by the Federal Constitution. Upon such a question, that instrument, and not the general principles of international law, must govern the decision. We have already seen that the Constitution makes it the duty of the Senate to- judge of the ‘‘elections’’ of its members. Another provision of that instrument says ‘‘the Senate of the United States shall be composed of two Sena- tors from each State, chosen by the legislature thereof ;’’ and the question now directly presented is, was Mr. Robbins chosen by the legislature of the State of RhodeIsland? It would seem to the undersigned, with all deference to the opinion expressed by the ma- jority of the committee, that the Senate cannot judge of the election of that individual unless it can look into and decide this question, and that to determine this to be an un- authorized interference on the part of the Federal Government in the domestic affairs of the government of the State of Rhode Island would be to determine that the Senate cannot, in the most important point always involved, ‘‘judge of the elections”’ of its own members; that it cannot judge whether or not they were chosen by the legislatures of the States, when the Constitution expressly requires that they should be so chosen, 214 SENATE ELECTION. CASES. In this connection, the majority of the committee seem to place much stress upon another argument, entirely consequential in its character, which is, that a decision by the Senate that the body of men who elected Mr. Robbins was not the legislature of Rhode Island will be in effect a decision that all the laws passed by that body, acting asthe legislature of that State, and all its other acts performed in that capacity, are null and void. Inasmuch as the State has now, and has had since the first Wednesday in May, 1833, a legislature admitted on all hands to be constitutionally chosen and or- ganized, it would appear to the undersigned that the majority of the committee give an unnecessary importance to this consequence of such a decision in case the consequence must follow; because the evils apprehended, to a very great extent, if not to the entire extent, might be remedied by the action of the competent legislature in affirmance of the acts to be affected. But, however this may he, he cannot but consider it a plain proposition, and not requiring argument to support it, that when the constitutional or- ganization of a body of men claiming to be the legislature of a State is the question in issue, the acts of that body whose constitutional powers are disputed are not to be ad- duced as evidence of the constitutional power of the body to perform them. When the constitutionality of a legislative act is questioned, he cannot believe that the act itself is to be relied upon as evidence of its own validity. Equally clearis it to his mind that when such a question is to be determined the consequences of pronouncing the act in- valid are not considerations which should legitimately control the decision. The act is either constitutional or unconstitutional. If constitutional, the dispute is settled; if unconstitutional, no consequences to follow from a pronunciation of that fact can make it valid. So with the body claiming to be the legislature of a State. If the legislature of the State according to the provisions of its constitution, the controversy is at an end; if not the legislature of the State, no acts of theirs in their assumed character, and no consequences to follow from the invalidity of those acts, can give them the powers which they had not when the acts were performed, or make them, what they were not, the legislature of the State. But if consequences can be legitimately considered in the argument, the undersigned feels compelled to say that to his mind a decision that the State of Rhode Island has no fundamental law or constitution of government but the will of its legislature will be a consequence to its people much more serious than any which can be apprehended from pronouncing void the acts of the body of men assuming to be the legislature of the State from May, 1832, to May, 1833. The undersigned then concludes that the charter of Charles II granted to the colony of Rhode Island and the Providence Plantations (now the State of Rhode Island) in the year 1663, and submitted to and adopted by the people of the colony in the year 1663 and 1664, is now to be considered the fundamental law of the State of Rhode Island, and binding upon its legislature as a constitution of government, except so far as the provis- ions of that charter were rendered obsolete by the American Revolution; that that charter does fix, and specifically limit, the official terms of the governor, lieutenant-governor, and senators of the State to one year; that the legislature of the State have not the power to extend those official terms beyond that limit; and that the Senate, upon a question as to the election of a Senator, has the right to inquire whether he was chosen by the legislature of his State, and,consequently, whether any body of men assuming to choose a Senator were authorized, as members of the legislature of their State, to make the choice under the provisions of the constitution of such State. It being conceded that the official terms of one year of the governor, lieutenant-gov- ernor, and senators of Rhode Island had expired in May, 1832, and that they continued from that period until May, 1833, to act in those offices, respectively, without any new election by the people, the undersigned is compelled to conclude that they acted during that period without constitutional authority, and that they were not, after May, 1832, members of the legislature of that State, and were not, therefore, in January, 1833, when they did so act, empowered to vote in the choice of a senator to represent that State in the Senate of the United States. And inasmuch as the Constitution requires either a governor, or lieutenant-governor, and at least six senators to constitute, with the house of representatives, a legislature; and as there were no such officers in consti- tutional existence in the State of Rhode Island in January, 1833, when Mr. Robbins purports to have been chosen a Senator, he is brought to the further conclusion that that choice was not made by the legislature of the State. Has, then, Mr. Potter been validly elected a Senator from that State? Thatthe body by which he was chosen was the legislature of the State has not been questioned; but in speaking upon that point the majority of the committee express the opinion that that legislature had no ‘‘authority to proceed to the election of another Senator until theseat of the Senator-elect had been vacated by a solemn decision of the Senate of the United States.’’ If, speaking legally and constitutionally, there was a Senator-elect, then this opinion is unquestionably sound, as it will not be contended that any legislature of a State has the power to vacate a seat in the Senate. To be more explicit and intelligi- FOTTER VS. ROBBINS. 215 ble, if Mr. Robbins’s election was voidable only, and not void, a subsequent legislature could not act until the vacancy was produced by the decision of the Senate. But if, as the undersigned has expressed hisopinion, the election of Mr. Robbins was not made by the legislature of the State, then it was not voidable, but absolutely void; it was not an election within the requirement of the Constitution of the United States, and the vacancy existed from the expiration of his former term in March, 1833. If the Senate shall come to this conclusion, then the undersigned is not aware of any ground upon which it can be contended that any constitutionally organized legislature of the State had not the power to fill that vacancy, or that the election of Mr. Potter made by such a legislature in October, 1833, is not valid. All which is respectfully submitted. SILAS WRIGHT, Jr. [The documents annexed to the minority report are here omitted. ] 216 SENATE ELECTION CASES. [Twenty-eighth Congress—First session. ] JOHN M. NILES, Senator from Connecticut from December 21, 1835, till March 3, 1839, and Srom May 16, 1844, till March 3, 1849. Mr. Niles was elected to the Senate for the term beginning March 4, 1843. His credentials were not presented until April 30,1844, when the Senate resolved that they be referred ‘‘to a select com- mittee, consisting of five members, who shall be instructed to inquire into the election, return, and qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States.” Some membersof the Senate doubted the constitutional power of the Senate to make such aninquiry. May 16,1844,the committee reported that he had been duly elected, and that they ‘‘are satisfied that Mr. Niles is at-this time laboring under mental and physical debility, but is not of ‘unsound mind’ in the technical sense of that phrase; that the faculties of his mind are subject to the control of his will, and there is no sufficient reason why he be not qualified and permitted to take his seat as a member of the Senate.” They reported the fol- lowing resolution: ‘‘ Resolved, That the Hon. John M. Niles be permitted to take the oath of a Sen- ator in the Congress of the United States,and to take his seat as a member of the Senate.” The resolution was adopted. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, Ist sess. 28th Cong.,and the report of the committee copied from the original on file at the office of the Secretary of the Senate. ue Sebastes are found on pages 564,565, 602, 603 of the Congressional Globe, Ist sess. 28th Cong., vol. 13, part 1. TuESDAY, April 30, 1844. Mr. Fairfield presented the credentials of the Hon. John M. Niles, elected a Senator by the general assembly of the State of Connecticut for the term of six years commenc- ing the 4th day of March, 1843; which were read. Mr. Jarnagin submitted the following resolution; which was considered by unanimous consent, and agreed to: ‘Resolved, That the credentials presented to the Senate of the election of John M. Niles to be a Senator of the United States from the State of Connecticut be referred to a select committee, consisting of five members, who shall be instructed to inquire into the election, return, and qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States.”’ On motion by Mr. Jarnagin, Ordered, That the said committee be appointed by the President pro tempore ; a Jarnagin, Mr. Benton, Mr. Berrien, Mr. Wright, and Mr. McDuffie were appointed. THURSDAY, May 16, 1844. Mr. Jarnagin, from the select committee to whom the credentials of the Hon. John M. Niles were referred, submitted a report, accompanied by the following resolution: “‘ Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate.’’ The Senate proceeded to consider the resolution; and having agreed thereto, .The oath prescribed by law was administered to the Hon. John M. Niles, and he took his seat in the Senate. REPORT OF COMMITTEE. In THE SENATE OF THE UNITED STATES, May 16, 1844. Mr. Jarnagin made the following report: The select committee, to whom was referred the credentials of the Hon. John M. Niles, to be a Senator of the United States from the State of Connecticut, with instructions to inquire into the election, return, and qualifications of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution, have performed the duty assigned and present the following report: In the month of May, 1842, the Hon. John M. Niles was duly elected a Senator from the State of Connecticut in the Congress of the United States for the term of six years from the 4th of March, 1843. The committee are satisfied his election, return, and quali- fications are legal and sufficient, and that it remains to inquire into his capacity at this time to take the oath prescribed by the Constitution. In prosecuting this inquiry the committee addressed a note to Mr. Niles requesting an interview with him, which was JOHN M. NILES. 217 promptly given. Between him and the committee there have been full, free, and frank conversations. Mr. Niles gave so satisfactory an account of his afflictions and present condition as to render a resort to other evidence unnecessary in the opinion of the com- mittee. He haslong been laboring under severe bodily afflictions, which, as was natural, impaired the energies of his mind to such an extent that it was deemed proper to remove him to a retreat at Utica, in the State of New York, of which he remained an inmate till about the 1st of April, 1844. His visitations were greatly alleviated, but he felt he had not physical ability to discharge the duties of a Senator for some time after the com- mencement of the present session of Congress, and a strong aversion to being an obstacle in the way of a full representation of his State in the Senate, but his inclinations were yielded to what was thought the better judgment of his friends, in obedience to which he repaired to Washington to take his seat in the Senate about the 1st of April last, but felt unable to do so till the 30th of that month, when he presented himself to be quali- fied as Senator. As evidence of the propriety of the course pursued, Mr. Niles presented to the committee the following letter of Dr. A. Bingham: “ ASYLUM, UTICA, April 24, 1844. “Hon. Jonn M. NILEs: ““My Drag Sim: Your letter has been received and read with much satisfaction. I per- ceive you are improving, and that it requires but a little more time, warm weather, and exertion on your part, with some urgency of friends, to restore you to health. Though you have been greatly afflicted with sickness, I trust you will call to mind that you have been no more so than thousands of others who have perfectly recovered. To effect your restoration now, my dear sir, requires that you engage in some active duties. You are in the condition that the distinguished Robert Hall was for a while, and to whom his friend Sir James McIntosh, who was educated a physician, gave the following advice, the advice that I give to you now, and urge you to follow it: ‘The remedy,’ says he, ‘in your case is prescribed by the plainest maxims of duty—you must act. Inactive con- templation, or lamentation, is a dangerous condition for minds of profound moral sensi- bility.’ Let me therefore urge you to resume your seat in the Senate as an act of duty and a resource against disease. Such exercise is necessary for your health, and by it you may also serve others. ‘Please show this letter to your brother, and perhaps to other friends, to whom I wish to say that a peculiarity of your nature is, even when well (so great is your caution), to require a little urging. I hope, therefore, they will not fail to discharge their duty now in urging you to this course. I hope in a few days to hear you are daily engaged for an hour or two in the Senate,’’ The committee are satisfied Mr. Niles is at this time laboring under mental and phys- ical debility, but is not of ‘‘unsound mind,”’ in the technical sense of that phrase; that the faculties of his mind are under the control of his will;. and they see no sufficient reason why he be not qualified and permitted to take his seat as a member of the Senate, and they most cordially unite with Dr. Bingham in the hope that such a course will be the means of usefulness and a resource against disease. Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate. 218 SENATE ELECTION CASES. [Special session of Senate, March, 1849. ] JAMES SHIELDS, Senator from Illinois from March 6, 1849, till March 15, 1849, and from December 3, 1849, till March 3, 1855. Mr. Shields, an alien by birth, was elected to the Senate January 13, 1849, for the term of six years from the 3d of March following. March 6 the oath was administered to him, and his credentials re- ferred to a select committee. The committee reported that it appeared that he was naturalized on the 21st day October, 1840, and reported the resolution ‘‘that the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States.” Theresolution was amended by adding to it the words ‘‘ at the commencement of the term for which he was elected,” and passed March 15. Mr. Shields was afterward elected for the same term. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journal, 2d sess. 30th Cong., 1848-49. The debates on the case are found in the Appendix to the Congressional Globe, 2d sess. 80th Cong., vol. 20, 1848-"49, pages 326-351, special references to which are inserted below. Fripay, March 2, 1849. Mr. Douglas presented the credentials of the Hon. James Shields, chosen a Senator by the general assembly of the State of Illinois for and during the term of six years from and after the 4th day of March, A. D. 1849; which were read. Monpbay, March 5, 1849. The Hon. James Shields, whose credentials were read the 2d of March, appearing for the purpose of being qualified, Mr. Walker submitted the following resolution; which was read: ‘Resolved, That the certificate of election of' the Hon. James Shields to a seat in this body be referred to the Committee on the Judiciary, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof.’’ = The Senate proceeded to consider the resolution by unanimous consent. Ordered, That the further consideration thereof be postponed until to-morrow. TuxEsDAyY, March 6, 1849. On motion by Mr. Douglas, the oath prescribed by law was administered to Mr. Shields. [On Mr. Douglas’s motion a debate ensued on the question whether Mr. Shields’s cre- dentials were such prima facie evidence of the necessary qualifications to a seat in the Senate as entitled him to be at once sworn, or whether they should be first referred to a committee; which debate is found on pages 327-329 of the Congressional Globe referred to in the head-note. ] The Senate proceeded to consider the resolution submitted yesterday by Mr. Walker in relation to the credentials of the Hon. James Shields; and, having been amended, it was agreed to, as follows: ‘* Resolved, That the certificate of the election of the Hon. James Shields to a seat in this body be referred to aselect committee, consisting of five members, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof.’’ (On this amended resolution, offered by Mr. Butler, some remarks were made on the question whether the case should more properly go to the Committee on the Judiciary or to a select committee, which remarks are found on page 330 of the Congressional Globe before referred to. ] WEDNESDAY, March 7, 1849. Resolved, That the standing and select committees for the present special session of the Senate be constituted and appointed as follows, viz: * * * * * * x Select committee on the eligibility of the Hon. James Shieldsas aSenator—Mr. Ben- ton, Mr. Felch, Mr. Webster, Mr. Mason, and Mr. Pearce. JAMES SHIELDS. 219 THURSDAY, March 8, 1849. Mr. Walker submitted the following resolution; which was considered by unanimous consent, and agreed to: “‘ Resolved, That the select committee to inquire into the eligibility of the Hon. James Shields to a seat in the Senate of the United States as a member thereof be authorized to send for persons and papers, and to call to their aid a person authorized to administer oaths, and to take the testimony of such persons as the committee may deem proper, and to procure the proper authentication of any papers or records which the committee may at any time have before it relating to the subject-matter under its consideration.’ Mr. Walker presented a copy of the record of naturalization in the case of the Hon. James Shields; which was referred to the said select committee. REPORT OF COMMITTEE. TuESDAY, March 13, 1849. Mr. Mason submitted the following report: The select committee to whom was referred the certificate of election of the Hon. James Shields to a seat in this body, with instructions to inquire into the eligibility of the said James Shields to such seat, report— That having given due notice to the said James Shields, he appeared before them, and they took the subject into consideration. They further report that the said certificate of election declares that the said James Shields was chosen a Senator of the United States by the legislature of the State of Illi- nois on the 13th day of January last; that it further appears, and is admitted by the said James Shields, that he is an alien by birth, and the only proof before the committee of the naturalization of the said James Shields in the United States is contained in the copy of a certificate of naturalization in the circuit court of Effingham County, in the said State of Illinois, which is annexed to and made part of this report; by which certificate it appears that the said James Shields was admitted by said court a citizen of the United States on the 21st day of October, 1840. The committee therefore report the following resolution: ‘ “ Resolved, That the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States.’’ Ex parte James Shields. This day personally appeared in open court James Shields, and made and filed the following declaration: James Shields, being duly sworn in open court, declares on oath that he was born in the county of Tyrone, in the kingdom of Ireland, on the 17th day of May, about the year 1810; that he emigrated to the United States of America while a minor, and con- tinued to reside in the United States three years next preceding his arriving at the age of twenty-one years, and has continued to reside therein since to the present time; he is now upwards of twenty-one years of age, and has resided upwards of five years within the State of Illinois aforesaid, one of the United States; that it is hisintention to become a citi- zen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to the Sovereign of Great Britain and Ireland; and he further declares that for three years next preceding the present appli- cation it has been his bona fide intention to become a citizen of the United States. JAMES SHIELDS. Subscribed and sworn to in open court, this 21st day of October, 1840. WILLIAM H. BLAKELY, Clerk of said Court. This day personally appeared in open court James Shields, a free white person, upwards of twenty-one years of age, and applied to be admitted to become a citizen of the United States, and who, being duly sworn, declares on oath, in open court, that he will support the Constitution of the United States, and doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatsoever, and particularly of the Sovereign of Great Britain and Ireland, whereof he was born a subject; and the court being satisfied that he has fally complied with the re- quirements of the laws of the United States on the subject of naturalization, and that he has resided within the United States upwards of five years and within the State of Ili- nois upwards of one year next preceding this application, and that during the whole of the time of his residence in the United States he has behaved as a man of good moral 220 SENATE ELECTION CASES. character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same, it is therefore ordered and ad- judged that the said James Shields be admitted a citizen of the United States, and that he is hereby admitted as such. STATE oF ILLINOIS, Effingham County, ss: I, John 8. Kelly, clerk of the circuit court in and for said county, certify that the foregoing is a true copy of the record of naturalization in the case of James Shields, en- tered, as appears upon the record, on the 21st day of October, A. D. 1840. Given under my hand and private seal (there being no official seal yet provided for said court at Effington) this 31st day of January, A. D. 1841. [SBAL.] JOHN §S. KELLY, Clerk. [Mr. Mason, when he presented the report, made a statement that 2 communication in writing to the committee from General Shields. had, owing to some inadvertence, never reached them, but that he had since seen it, and that it might be seen by Senators; which statement is found on page 332 of the Congressional Globe referred to. ] The Senate, by unanimous consent, proceeded to consider the resolution reported by the committee. Mr. Foote moved that the further consideration of the resolution be postponed until the first Monday in December next.* [The debates on the adoption of the resolution and on Mr. Foote’s motion are found on pages 333-336 of the Congressional Globe. ] After debate, Ordered, That the turther consideration of the resolution be postponed until to- morrow. WEDNESDAY, March 14, 1849. The Senate having before it the motion made yesterday, to postpone until the first Monday in December next the resolution in relation to the election of James Shields, a debate ensued, after which Mr. Foote withdrew the motion.ft [The debate on this motion is found on pages 337, 338 of the Congressional Globe. ] The Senate resumed the consideration of the resolution reported by the select com- mittee in relation to the election of James Shields; and, After debate, On motion by Mr. Cass that the resolution lie on the table, it was determined in the negative—yeas 15, nays 34. On motion by Mr. Cass, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Bradbury, Cass, Dickinson, Douglas, eras Fitzpatrick, Foote, Hale, Hamlin, Jones, Rusk, Soulé, Sturgeon, Turney, and ee. Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, Borland, Bright, Butler, Calhoun, Chase, Clarke, Corwin, Davis of Massachusetts, Davis of Mississippi, Dawson, Felch, Greene, Hunter, Mangum, Mason, Miller, Morton, Norris, Pearce, Phelps, Seward, Smith, Spruance, Underwood, Upham, Wales, Walker, Webster, and Whitcomb. On motion by Mr. Calhoun to amend the resolution by adding thereto ‘‘at the com- mencement of the term for which he was elected,’’ After debate, On motion by Mr. Hale that the further consideration of the resolution be postponed until to-morrow, it was decided in the affirmative—yeas 24, nays 23. [The debates on the last two motions are found on pages 338-342 of the Congressional Globe. They include a discussion of the question whether the election of General Shields was void or voidable, and whether, in case the resolution as amended should pass the Senate, the governor of Illinois would have power to fill the vacancy by appointment. ] On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Atchison, Bell, Borland, Bradbury, Butler, Cass, Chase, Douglas, Downs, Felch, Fitzpatrick, Foote, Hale, Hunter, Jones, Mason, Norris, Rusk, Seward, Soulé, Sturgeon, Turney, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Berrien, Bright, Calhoun, Clarke, Cooper, Corwin, Davis of Massachusetts, Davis of Mississippi, Dawson, Dickinson, Greene, Mangum, Miller, Morton, Pearce, Smith, Spruance, Upham, Wales, Walker, Webster, and Whitcomb. *This motion is taken from the Congressional Globe. It does not appear in the Journal. +This proceeding is taken from the Congressional Globe. It does not appear in the Journal. JAMES SHIELDS. 221 The Hon. James Shields having handed to the Vice-President a letter tendering his resignation, Mr. Hale called for the reading of the letter, and, no objection being made, the letter was read. Mr. Hale submitted the following resolution for consideration: ‘‘Resolved, That the Vice-President be requested to inform the executive of the State of Illinois that the Hon. James Shields has this day resigned his seat in the Senate of the United States.’’ On motion by Mr. Berrien, Ordered, That the consideration of the resolution be postponed until to-morrow. THURSDAY, March 15, 1849. On motion by Mr. Turney that the Senate proceed to the consideration of the resolu- tion submitted by Mr. Hale the 14th instant, requesting the Vice-President 1o inform the executive of the State of Illinois that James Shields has this day resigned his seat in the Senate of the United States, After debate [a debate on the question whether the resolution offered by Mr. Hale or the resolution reported by the committee should be first considered is found on pages 342-346 of the Congressional Globe], ; On motion by Mr. Davis, of Mississippi, that the motion lie on the table, it was de- termined in the affirmative—yeas 33, nays 14.* On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen- tors present, Those who voted in the affirmative are Messrs. Atchison, Badger, Baldwin, Bell, Ber- rien, Borland, Bright, Butler, Calhoun, Clark, Cooper, Corwin, Davis of Massachusetis, Davis of Mississippi, Dawson, Dickinson, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Phelps, Seward, Smith, Spruance, Sturgeon, Upham, Wales, Walker, Webster, Whitcomb, and Yulee. Those who voted in the negative are Messrs. Cass, Chase, Douglas, Downs, Felch, Fitzpatrick, Foot, Hale, Jones, Norris, Rusk, Soulé, Turney, and Underwood. On motion by Mr. Mason, the Senate resumed the consideration of the resolution re- ported by the select committee in relation to the election of James Shields, and, After debate [the debate is found on pages 346, 347 of the Globe], On motion of Mr. Davis, of Mississippi, that it lie on the table, it was determined in the negative—yeas 16, nays 32.f On motion by Mr. Turney, the yeas and nays being desired by one-fifth of the Sen- ators present, ‘ Those who voted in the affirmative are Messrs. Cass, Chase, Davis of Mississippi, Douglas, Downs, Fitzpatrick, Foote, Hale, Jones, Norris, Rusk, Soulé, Sturgeon, Turney, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Bradbury, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massachusetts, Dawson, Dickinson, Felch, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, Webster, and Whitcomb. [A further debate on the adoption of the resolution reported by the committee is found on pages 347-351 of the Globe. ] On the question to agree to the amendment proposed by Mr. Calhoun the 14th in- stant, it was determined in the affirmative. On motion by Mr. Underwood further to amend the resolution, by striking out the words ‘‘ was void,’’ and inserting in lieu thereof the following: ‘‘ does notentitle him to a seat as such in this body,’’ it was determined in the negative—yeas 16, nays 28. On motion by Mr. Underwood, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Atchison, Bradbury, Chase, Davis of _Mississippi, Douglas, Downs, Felch, Fitzpatrick, Foote, Jones, Norris, Rusk, Soulé, Sturgeon, Underwood, and Yulee. Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massachusetts, Dawson, Dick- inson, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, and Webster. On motion by Mr. Douglas to amend the resolution by striking out all after the word “‘resolved,’’ and inserting the following in lieu thereof: “That the Vice-President be requested to notify the executive of the State of Illinois that the Hon. James Shields has resigned his seat in this body,’’ It was determined in the negative- yeas 12, nays 32. * The Congressional Globe gives this vote yeas 20, nays 15. t The Congressional Globe gives this vote yeas 18, nays 82. 2292 . SENATE ELECTION CASES. On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Cass, Chase, Douglas, Downs, Fitzpat- rick, Foote, Jones, Rusk, Soulé, Sturgeon, Underwood, and Yulee. Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, Borland, Bradbury, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massa- chusetts, Davis of Mississippi, Dawson, Dickinson, Greene, Hamlin, Hunter, Mangum, eta Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, and ebster. No further amendment being proposed, the resolution was then agreed to, as follows: “ Resolved, That the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States at the commencement of the term for which he was elected.”’ On motion by Mr. Webster, Ordered, That the Vice-President be requested to transmit to the governor of the State of Illinois a copy of the said resolution, attested by the Secretary of the Senate. YULEE VS. MALLORY. 223 [Thirty-second Congress—First session. ] YULEE vs. MALLORY, of Florida. January 13, 1851, the general assembly of Florida met in convention to elect aSenator for the term peginning March 4, 1851. A viva voce vote being taken pursuantto the requirements of the consti- tution of the State, 29 members responded David L. Yulee and 29 responded blank, whereupon the presiding officer declared that there had been no election. January 15 they again met in_ con- vention, when 31 members responded R. 8S. Mallory and 27 voted for Mr. Yulee and others, where- upon the presiding ofticer declared Mr. Mallory to be dulyelected. Neitherparty appeared to take the seat during the special session of the Senate in March, 1851._ March 8 a letter from Mr. Yulee was read stating that he should contest the seat of Mr. Mallory, declared to be elected. December 1, 1851, the credentials of Mr. Mallory were presented and hetook the oath. On the same day the letter of Mr. Yulee with accompanying documents was referred toa select committee of five. August 21, 1852, the committee reported that there was in force in that State, at the time of the election, the following resolution: ‘‘Resolved, That a majority of all the members-elect composing the two houses of the general assembly shall be necessary to determine all elections devolving upon that body”; that this resolution was joint in fact, though not in form, and was sufficient, though without the forms of law usual in legislation, to regulate the ‘‘ manner of holding elections”; that the whole number of members-elect in this general assembly was 59, and that Mr. Yulee receiving but 29 votes on the first ballot, did not obtain a sufficient number to elect him; that theyrecommend the adop- tion of the following resolution: ‘‘ Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851.” The resolution passed the Senate August 27, without a dissenting vote. Mr. Yulee’s claim to the seat was on the ground that the resolution of the legislature of Florida given above was not such legislation as is requisite in order to change the law of a State, and that the law in Florida had always been that the majority ofa quroum of the members composing the legislature could elect, and was at that time the law; thatthe votes of the 29 voting blank should not be counted at all, and that he being the only qualified person voted for, and receiving 29 votes, had a majority of the legal votes,and more than a majority of a quorum, which majority was 16. The history of the case here given consists of the report of the committee from Senate Reports, Ist sess. 32d Cong., vol. 2,1851-’52, Report No. 349; atranscriptof the proceedings of the Senate relating to the case on August 27, 1852 (being the day on which the case was discussed in the Senate), from the Senate Journal, Ist sess. 32d Cong., 1851-’52; and a transcript of the proceedings of the Senaterelating . the payment of mileage and per diem to Mr. Yulee from Senate Journals, Ist and 2d sess. 82d ong. The debates in the case are found on pages 1170-1176 of the Appendix to Congressional Globe, vol. 25, Ist sess, 32d Cong.,1851-"52. A reference to the debates on the question of payment to Mr. Yulee is inserted below. The documents accompanying the case which were printed are found in Senate Miscellaneous, Ist sess. 32d Cong., 1851-52, Nos. 109 and 110. The minor proceedings of the Senate relating to the oe reras to the day of its discussion in the Senate have been omitted in making up the history of this case. REPORT OF COMMITTEE. Committee appointed December 2, 1851.—Messrs. Berrien*, Bright, Davis, Mason, and Pearce. In THE SENATE OF THE UNITED STATES. AUGUST 21, 1852.—Ordered to be printed. Mr. Bright made the following report: The select committee to whom was referred the memorial of the Hon. David L. Yulee, claiming the seat in the Senate held by the Hon. Stephen R. Mallory, from the State of Florida, together with sundry documents therewith, report: That they have examined the law and the facts connected with this case, they have heard the contestant by able counsel, and the sitting member in person, and after giving to each that consideration which the importance of the questions embraced merits, find that on the 13th day of January, 1851, the general assembly of Florida met in convention of the two houses to choose a Senator of the United States to supply a vacancy which would occur before another constitutional session. The president of the senate presided, and upon a call of the roll a poll viva voce was taken of the members pursuant to the requirements of the constitution of the State, and 29 responded David L. Yulee and 29 blank, whereupon the presiding officer declared that no choice had been made; they then proceeded to a second and third vote, with substantially the same result. On the 15th of January they again met in convention for the same purpose, and upon a call of the roll 31 members responded R. 8. Mallory, and 27 votes for Mr. Yulee and others; whereupon the president declared Mr. Mallory to be duly elected. * February 2, 182, Mr. Berrien resigned and Mr. Badger was appointed in his place February 3, 2294 SENATE ELECTION CASES. Neither the record nor any other evidence in the case shows that objection was made to any of those proceedings, or that their legality was questioned in or out of the con- vention at the time. The certificate of election was granted to Mr. Mallory, and he having been qualified, , now holds the seat. Mr. Yulee contests his right to the seat on the ground that he was himself elected at the first vote, because there was a quorum of each house present as appears by the jour- nals, and he, being the only qualified person voted for, had a majority of the legal votes. Those who responded ‘‘blank,’’ he contends, voted for no qualified person, and waived their electoral rights as effectually as if they had been silent. Mr. Mallory opposes to this inference a resolution of the two houses adopted in 1845, by concurrent vote, which has never been rescinded, and is in the following words: “‘ Resolved, That a majority of all the members-elect composing the two houses of gen- eral assembly shall be necessary to determine all elections devolving upon that body.”’ The whole number of members-elect was 59, and Mr. Yulee, not having a majority of that number, was not elected. From the facts disclosed it is quite apparent that the convention took this view of the matter. In deciding the questions which are raised out of the facts, the Constitution of the United States must, to thé extent of its provisions, prevail over allother authority. That instrument gives to each State the right to elect two Senators. Article I, section 4, is in these words: ‘‘The times, places, and manner of holding elections for Senators and Rep- resentatives shall be prescribed in each State by the legislature thereof.”’ The words of the third section in the same article are: ‘‘The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years.’’ The first question, then, which arises is, What constitutes the legislature of Florida? For that, and that only, has the right to make the choice. The Constitution of the United States, Article I, section 1, says: ‘‘AJl legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’”? The constitution of Florida declares that ‘‘the legislative power of the State shall be vested in two distinct branches, the one to be styled the senate, the other the house of representatives, both together the general assembly.’’? These au- thorities leave no doubt that the two houses constitute the legislature of Florida, which holds the unqualified right under the Constitution of the United States to elect the Sen- ators for the State, Has this body executed the trust confided to it in such a manner as tosatisfy the terms of the Constitution? The time, the place, and the manner of holding the election are all to be prescribed by it. To the time and place no objection is made, but the validity of the manner is questioned. No mode of election is prescribed by the Constitution, but this duty is left to the dis- cretion of the several legislatures of the States. In carrying out the power some elect by a concurrent vote of the two branches, the one having a negative upon the action of the other; others elect in a convention of the two houses, in which case (as far as your committee are advised) a majority prevails. If numbers be regarded as a material element in such elections, it is manifest that in the same body of men different results may be produced according as one mode or the other is pursued. There may be in convention a majority in favor of a candidate, mak- ing his success by this mode certain, while with the same number in his favor he might be defeated in one of the houses if a concurrent vote is required; and such cases have occurred. Again, it may be observed that the power given to the legislature to regulate the time, place, and manner applies as well to Representatives as to Senators; and here again are other diversities in the manner of exercising it. Some States elect by a plurality of votes, others by a majority, and others have required at the first trial a majority and a plurality afterward. Some again (until Congress made a law upon the subject) elected by general ticket; others, either by single ‘districts or districts entitled to more than one, according to convenience. None of those modes of electing Senators or Representatives has been held unconstitutional, but members have uniformly been admitted to their seats whether electcd in one or other of these modes. These practices have at all times existed, and have uniformly been recognized as consti- tutional, proving clearly that the discretion reposed in the legislatures of theStates may be exercised in a diversity of ways and yet be a sufficient compliance with the require- ments of the Constitution. The legislature of Florida adopted a course different from any of these by requiring a majority of all the members-elect in convention to make choice of a Senator. This rule is as unobjectionable and harmonizes as well with the Constitution as the modes pursued elsewhere. The right of the State to adopt such a rule has not been directly YULEE VS. MALLORY. 225 questioned, but the legality of the means by which it was executed is denied. This point is the chief ground of controversy between the parties. On the one hand, the validity of the resolution above cited is denied; on the other, it is alleged that if the reso- lution was not in force a usage equivalent to it existed, which was equally obligatory upon the convention. This again is denied. We will first consider the character, force, and effect of the resolution. The first objection to it is that it contains no evidence on its face that it isa joint act of the two houses. This is true; but the journals place this matter in the clearest light. While there is an apparent defect in form there was none in fact. It was passed in one house, sent to the other, and there agreed to by a concurrent vote; it is a clear, unequivocal expression of the will of each house. No words added to it can make it a stronger or more complete expression of that will. It is also in substance joint, since it is the will of both houses expressed in the same words. Moreover it is permanent, being designed as a rule of action for both, by the united will of both, and it must stand as such until both concur in repealing or rescinding it. The next objection is that it has not the forms of law usual in legislation, because it is not signed by the officers of each house or approved by the governor. It is a suffi- cient reply tostate that the Constitution does not require the legislature to regulate the manner of election by /aw; it may be by resolution, either joint or several, or in any other method which commands the agreement of both houses of the legislature. The form 7 action being discretionary and the substance right, the objection becomes im- material. y The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a sufficient law, because they alone are empowered to prescribe the man- ner of choosing in such mode or by such means as they please. On this point a State constitution can neither control nor modify that of the United States, for the latter is the supreme law. This resolution being joint in fact, though not in the usual form, was a standing order of the two houses, in force until they by concurrent vote should rescind or modify it. It was consequently the rule prescribing the manner of election to the two houses when they met in convention on the 13th of January, 1851, and they were bound to proceed according to its requirements. This being the view which the committee take of the case, there is no necessity for pursuing the subject further, since Mr. Yulee did not obtain votes sufficient to elect him. It may not, however, be out of place to observe that the facts disclosed render it evi- dent that the two houses entered the convention with the full belief that no number short of a majority of all the members-elect could make a choice of a Senator, and con- ducted their proceedings under the conviction that they were bound to adhere to the established practice. There is also reason for believing that the members of the con- vention assembled and acted under the conviction that blank votes would be counted, inasmuch as the two houses on a former occasion and in another election had so decided. If blank votes are beyond doubta nullity; if the resolution is to be regarded of no effect, and we are brought to the question, under these circumstances, whether Mr. Yulee is duly elected, it seems to us difficult to maintain the affirmative of that proposition upon the facts before us. If the members were misled on both of these material points by as- suming that their previous doings afforded safe and certain rules of action, then they were misguided by what they had a right to consider as authority, and must have acted under a misconception of right which stood, as they supposed, unquestioned. If this be so they stand substantially in the condition of an elector who votes for a person dis- qualified, believing him to be qualified. The vote in such a case, though unavailing, is not rejected from the count. The only remedy which we can see for an election carried on through misapprehension from such well-founded causes is to set it wholly aside and open the way to a new choice; but in our view of the case there is no occasion to consider what ought to be done upon such a state of facts. The committee ought perhaps to notice one other fact which has been relied upon. Since the adoption of the resolution the journals show a case in which a person who was declared not to be elected in convention because he had not the number of votes required was afterward declared elected by a concurrent resolution of the two houses. All that need be said of this transaction is that it passed the senate through the mis- apprehension of one of its members, as the journal proves, and was manifestly a viola- tion of the resolution. It is equally manifest that the members of both houses did not regard it as affecting in any way the standing order, for its provisions were at all times subsequently observed as obligatory in convention. No argument is necessary to prove that such an irregular proceeding could have no effect upon the order either to modify or rescind it. With these views the committee recommend the adoption of the following resolution: Resowed, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851. S. Doe. 11 15 226 SENATE ELECTION CASES. [Extract from Senate Journal, August 27, 1852.] On motion by Mr. Weller that the Senate proceed to the consideration of the resolu- tion reported by the select committee to whom was referred the memorial of the Hon. David L. Yulee, claiming the seat in the Senate held by the Hon. Stephen R. Mallory, it was determined in the affirmative—yeas 23, nays 21. On motion by Mr. Weller, the yeas and nays being desired by one-fifth of the Senators present, ; Those who voted in the affirmative are Messrs. Adams, Atchison, Bayard, Bradbury, Bright, Brooke, Charlton, Clemens, Dawson, Felch, Gwin, Hale, Houston, Hunter, James, Jones of Iowa, King, Seward, Stockton, Sumner, Wade, Walker, and Weller. Those who voted in the negative are Messrs. Badger, Bell, Borland, Brodhead, Clarke, Davis, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, Hamlin, Mangum, Miller, Morton, Pearce, Rusk, Smith, Spruance, Underwood, and Upham. The Senate proceeded to consider the resolution submitted by Mr. Morton the 24th August, to give leave to the Hon. David L. Yulee to be heard in person at the bar of the Senate; and, On motion by Mr. Weller that the resolution lie on the table, it was determined in the negative—yeas 17, nays 29. On motion by Mr. Gwin, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Adams, Bayard, Bradbury, Clarke, Clemens, Downs, Fish, Gwin, Houston, James, Jones of Iowa, Norris, Pearce, Rusk, Spru- ance, Stockton, and Weller. Those who voted in the negative aré Messrs. Atchison, Badger, Bell, Borland, Brodhead, Brooke, Butler, Cass, Charlton, Dawson, De Saussure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Felch, Geyer, Hamlin, Hunter, King, Mangum, Mason, Meriwether, Miller, Morton, Seward, Shields, Underwood, Upham, and Wade. On motion by Mr. Pearce to amend the resolution by adding thereto ‘‘ for two hours,’? it was determined in the affirmative—yeas 31, nays 21. On motion by Mr. Badger, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Adams, Atchison, Bradbury, Bright, Butler, Cass, Clarke, Clemens, Davis, Dawson, Dodge of Wisconsin, Dodge of Iowa, Downs, Felch, Fish, Foote, Hale, Houston, Hunter, James, Jones of Iowa, King, Meriwether, Miller, Norris, Pearce, Pratt, Smith, Stockton, Sumner, and Weller. Those who voted in the negative are Messrs. Badger, Bayard, Borland, Brodhead, Brooke, Charlton, Chase, Cooper, De Saussure, Douglas, Geyer, Gwin, Hamlin, Mangum, Mason, Morton, Rusk, Spruance, Underwood, Upham, and Wade. The resolution submitted by Mr. Morton was then agreed to, as follows: “‘ Resolved, That the Hon. D. L. Yulee, who contests the seat of the Hon. S. R. Mal- lory, have leave to be heard in person at the bar of the Senate for two hours.”’ On the question to agree tothe resolution reported by the select committee, as fol- lows: ‘* Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Sen- ate of the United States from the 3d day of March, 1851,”’ A motion was made by Mr. Mangum that the further consideration thereof be postponed to the first Tuesday after the second Monday in December next; and it was determined in the negative—yeas 18, nays 37. On motion by Mr. Bradbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Badger, Bayard, Bell, Borland, Brod- head, Cooper, De Saussure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, Hamlin, Mangum, Meriwether, Miller, Morton, and Upham. Those who voted in the negative are Messrs. Adams, Atchison, Bradbury, Bright, Brooke, Butler, Cass, Charlton, Chase, Clarke, Clemens, Davis, Dawson, Felch, Foote, Geyer, Gwin, Hale, Houston, Hunter, James, Jones of Iowa, King, Mason, Norris, Pratt, Rusk, Seward, Smith, Spruance, Stockton, Sumner, Toucey, Underwood, Wade, Walker, and Weller. Mr. Yulee having addressed the Senate, On motion, Mr. Morton was excused from voting on the resolution. On the question to agree to the resolution, it was determined in the affirmative— eas 41, - On motion by Mr. Pratt, the yeas and nays being desired by one-fifth of the Senatois resent, F Those who voted in the affirmativeare Messrs. Badger Bayard, Bell, Bradbury, Bright, Brooke, Butler, Cass, Charlton, Clemens, Cooper, Davis, Dawson, De Saussure, Dodge of YULEE V8. MALLORY. 227 Wisconsin, Dodge of Iowa, Downs, Felch, Fish, Foote, Geyer, Gwin, Houston, Hunter, James, Jones of Iowa, King, Mason, Meriwether, Miller, Norris, Pratt, Rusk, Seward, Smith, Soulé, Spruance, Sumner, Toucey, Underwood, and Weller. COMPENSATION OF MR. YULEE. Monpay, August 30, 1852. Mr. Morton submitted the following resolution; which was read: “Resolved, That there be paid out of the contingent fund of the Senate to the Hon. David L. Yulee a sum equal to the amount of mileage‘and per diem compensation of a Senator from the commencement of the present session to the 27th instant, the day on which the Senate decided that the Hon. Stephen R. Mallory, whose seat in the Senate was claimed by him, was duly elected a member of the Senate from the State of Florida.”’ TUESDAY, August 31, 1852. The Senate proceeded to consider the resolution submitted by Mr. Morton the 30th instant, directing a payment to the Hon. David L. Yulee from the contingent fund; and, After debate, On motion by Mr. Morton, . Ordered, That it lie on the table. [Some remarks against the passage of this resolution are found on page 2488 of the Congressional Globe, vol. 24, part 3, 1st sess. 32d Cong., 1851-’52. ] : FRIDAY, February 25, 1853. Mr. oe submitted the following resolution; which was read. [Resolution given above. Monpbay, March 7, 1853. Mr. Se submitted the following resolution; which was read. [Resolution given above. THURSDAY, March 17, 1853. The Senate proceeded to consider the resolution submitted by Mr. Morton the 7th in- stant, to allow per diem and mileage to the Hon. David L. Yulee during the time he contested the seat of the Hon. Mr. Mallory in the Senate, and on the question, ‘‘ Shall the resolution pass? ’’ it was determined in the affirmative—yeas 23, nays 19. On motion by Mr. Houston, the yeas and nays being desired by one-fifth of the Sena- tors present, ‘ Those who voted in the affirmative are Messrs. Badger, Borland, Brodhead, Butler, Cooper, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Everett, Fitzpatrick, Gwin, Hunter, James, Jones of Iowa, Mason, Morton, Sebastian, Seward, Shields, Soulé, Sumner, and Walker. Those who voted in the negative are Messrs. Adams, Atchison, Atherton, Bayard, Benjamin, Bright, Chase, Geyer, Hamlin, Houston, Norris, Pearce, Phelps, Rusk, Stu- art, Thompson of Kentucky, Thompson of New Jersey, Weller, and Wright. [A debate on the adoption of the resolution is found on pages 280-283 of the Appen- dix to Congressional Globe, vol. 26, 2d sess. 32d Cong. J 228 SENATE ELECTION CASES. (Thirty-fourth Congress—First session. ] LYMAN TRUMBULL, Senator from Illinois from March 4, 1855, to March 3, 1873. June 7, 1852, Mr. Trumbull was elected a judge of the supreme court of Llinois for a term of nine years, and was duly commissioned June 24. May 19, 1853, he resigned this office, to take effect July 4,1853. February 8, 1855, he was elected to the Senate of the United States for the term beginning March 4,1855, The constitution of Lllinois provided that the judges of the supreme court should not be eligible to any office of public trust or profit in the United States during the term for which they were elected, nor for one year thereafter; and that all votes for them, for any elective office, given by the general assembly, should be void. When Mr. Trumbull’s credentials were presented in the Senate, a protest of members of the legislature was presented, protesting against the legality of the election on the ground that it was void by virtue of the provision of the constitution referred to. The subject was referred to the Committee on the Judiciary, who reported that there was such a division of opinion as to render it proper to refer the subject to the Senate, and asked to be excused, which report was accepted by the Senate. A resolution declaring Mr. Trumbull entitled to his seat was then introduced and passed the Senate by a vote of 35 yeas to 8nays. The arguments show that the Senators voting in favor of the legality of the election did so from different grounds, some procesiing upon the ground that this case did not come within the meaning of the clause of the tate constitution referred to, because Mr. Trumbull had resigned the office of judge more than a year before his election to the Senate; and others proceeding upon the ground that a State cannot superadd qualifications of a Senator to those required by the United States Constitution. Extracts from the debates given below will show the lines of the different arguments. The history of the case here given consists of the report of the committee taken from Senate Re- ports, 34th Cong., Ist sess, vol. 1, 1855-56, report No.15; the proceedings of the Senate relating to the ease from the Senate Journal, lst and 2d sess, 34th Cong., 1855~56; and extracts from the debates found in the Congressional Globe, part 1, Ist sess. 84th Cong., 1855-"56. Special references to the debates of each day are inserted below. REPORT OF COMMITTEE, CONTAINING THE DOCUMENTS PRINTED IN THE CASE. [The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Toombs, and Pugh. ] In THE SENATE OF THE UNITED STATES. FEBRUARY 27, 1856.—Submitted, agreed to, and ordered to be printed with the protest and other papers. Mr. Butler made the following report: The Committee on the Judiciary, to whom were referred the ‘‘ Protest of certain sena- tors and representatives of the legislature of the State of Illinois against the election of the Hon. Lyman Trumbull as a Senator of the United States,”’ and other papers, report: That it has been under consideration and discussion by the committee, and there being such a division of opinion as to render it proper, in their judgment, to refer the subject to the Senate, ask to be discharged from the further consideration thereof. Certified copy of the resignation of Lyman Trumbull of the office of justice of the supreme court of the State of Illinois. ALTON, May 19, 1853. Sre: I am induced, by considerations of a personal and private character, to resign the office of justice of the supreme court; but to allow time for the election of a person to succeed me, so that no public inconvenience may result from a vacancy on the bench, I hereby tender my resignation of said office, to take effect on the 4th day of July next. Yours, very respectfully, LYMAN TRUMBULL. His excellency JonL A. MATTESON, Governor of Illinois. UNITED STATES OF AMERIOA, State of Illinois, a8: I, Alexander Starne, secretary of state of the State of Illinois, do hereby certify that the foregoing is a true and correct copy of Lyman Trumbull’s resignation, filed in the secretary’s office, May 20, 1853. And I further certify that Walter B. Scates was elected. to fill said vacancy, and en- tered upon the discharge of the duties of said office, July 13, 1853. In testimony whereof, I have hereunto set my hand and affixed the seal of State, this 9th day of November, A. D. 1855. [L. 8.] ALEXANDER STARNE, Secretary of State. LYMAN TRUMBULL. 229 Certificate of Joel A. Matteson, governor of the State of Illinois, relative to the election of Lyman Trumbull te be a Senator of the United States, and also to the office of justice of the supreme court of that State. EXECUTIVE DEPARTMENT, STATE OF ILLINOIS, November 1, 1855. I, Joel A. Matteson, governor of the State of Illinois, do hereby certify that it appears of record that on the 8th day of February, A. D. 1855, the two houses of the legislature of the State of Dlinois met in convention and proceeded to vote for the election of a Sen- ator for said State to the Senate of the United States; that upon the final vote Lyman Trumbull received 51 votes, Joel A. Matteson received 47 votes, and Archibald Williams received 1 vote; and the Speaker of the House of Representatives thereupon declared Lyman Trumbull elected a Senator of the United States for the State of Illinois for six years from the 4th day of March, A. D. 1855. Thatit further appears from record that the said Lyman Trumbull was elected, on the 7th day of June, A. D. 1852, a justice of the supreme court of the State of Illinois for a term of nine years; that on the 24th day of June, A. D. 1852, he was duly commissioned as justice for the term aforesaid, commencing on the first Monday of June, A. D. 1852, and ending on the first Monday of June, A. D. 1861; that he was sworn and entered upon the discharge of his duties appertaining to said office; that the constitution of the State of Tilinois contains the following provision, to wit: . ‘*The judges of the supreme and circuit courts shall not be eligible to any other office of public trust or profit, in this State or the United States, during the term for which they are elected, nor for one year thereafter; all votes for either of them, for any elective office (except that of judge of the supreme or circuit court) given by the general assembly or people, shall be void.’ All of which, together with the legality of said election, are respectfully submitted to the Senate of the United States. J. A. MATTESON. ALEXANDER STARNE, Secretary of State. By the governor: {i s.] To the PRESIDENT OF THE SENATE of the United States. UNITED STATES OF AMERICA, State of Illinois, ss: I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that Lyman Trumbull was, on the seventh day of June, A. D. 1852, elected judge of the su- preme court of the State of Illinois, and was duly commissioned as such for the term of nine years from the 24th day of June, 1852; that he took upon himself the oath of office, and entered upon the discharge of the duties of the same; that said term of office for which he was elected is unexpired, and will not expire until the 27th day of June, 1861. In testimony whereof, I have hereunto setmy hand and affixed the seal of said State, this 24th day of February, A. D. 1855. - [z. 8.] ALEXANDER STARNE, Secretary of State. Protest of certain senators and representatives of the legislature of the State of Illinois against the election of Lyman Trumbull as a Senator of the United States. To the honorable the Senate of the United States: The undersigned, senators and representatives of the people of the State of Illinois in the legislature thereof, respectfully represent: That at a meeting of both houses of said legislature, in general assembly convened, on the 8th day of February, 1855, for the pur- pose of electing a Senator for said State to the Senate of the United States for six years from the 4th of March, 1855, 51 votes were cast for Lyman Trumbull, 47 votes for Joel A. Matteson, and 1 vote for Archibald Williams, and that one member of said legisla- ture was absent. They further represent that the constitution of the State of Illinois contains the fol- lowing provision in the tenth section of the fourth article thereof: ‘The judges of the supreme and circuit courts shall not be eligible to any other office or public trust of profit in this State, or the United States, during the term for which they are elected, nor forone year thereafter; all votes for either of them, for any elective office, except that of judge of the supreme or circuit courts, given by the general assem- bly or the people, shall be void.” 280 SENATE ELECTION CASES. They further represent that said Lyman Trumbull was, on the 7th day of June, 1852, elected judge of the supreme court of the State of Illinois, and was duly commissioned as such, for the term of nine years, from the 24th day of June, 1852; that he took upon himself the oath of said office, and entered upon the discharge of the duties of the same; that his said term of office for which he was elected is unexpired, and will not expire un- til the 27th day of June, 1861; and that in and by virtue of the said provision of the con- stitution of the said State of Illinois, the votes cast by the members of the general as- sembly for said Trumbull for Senator of said State, as aforesaid, are nulland void, and said Trumbull is not legally elected to the Senate of the United States, and is not enti- tled to his seat in said Senate; and against said pretended election the undersigned, in behalf of themselves and their constituents, do hereby protest. Hugh L. Sutphin. Joseph Morton. James M. Campbell. J. C. Davis, W. H. Carlin. F. D. Preston. C. L. Higbee. Tho. P. Richmond. George Walker. T. B. Sauner. Dr. H. A. Browne, S. D. Masters. Saml. H. Martin. William J. Allen. B. P. Hinch. SENATORS. A. J. Kuykendall. M. O. Kean. Ben. Graham. John E. Detrich. Silas L. Bryan. BEPRESENTATIVES. Eli Seehorn. James Bradford. Jonathan Dearborn. D. McClain. Frank M. Rawlings. G. M. Gray. Jona. McDaniel. Wm. R. Morrison. P. E. Hosmer. L. F. McCrillis. James L. D. Morrison. G. R. Jenngan. A. P. Corder. George H. Holliday. J. R. Bennett. 8. W. Moulton. W. N. Cline. Presley Funkhouser, James M. Pursley. Hugh Gregg. C. C. Hopkins. Henry Richmond. Credentials of the Hon. Lyman Trumbull, elected a Senator by the legislature of the State of Tilinois. It is hereby certified that, in pursuance of a joint resolution to that effect adopted, the two houses of the general assembly of the State of Illinois, now in session at Springfield in said State, did convene in joint session in the hall of the house of representatives on the eighth day of February, in the year of our Lord one thousand eight hundred and fifty- five, for the purpose of electing a Senator to the Congress of the United States for the term of six years from the fourth day of March, in the year aforesaid, and that Lyman Trumbull was then and there, by said joint session of the legislature of said State, duly elected Senator to represent the State of Illinois in the Senate of the United States for six years from the said fourth day of March next. Dated at Springfield the ninth day of February, one thousand eight hundred and fifty- five. Attest: GEORGE T. BROWN, Secretary of the Senate. EDWIN T. BRIDGES, Clerk of the House of Representatives. THOMAS G. TURNER, Speaker of the House of Representatives and Presiding Officer of the said joint session. Attest: UNITED STATES OF AMERICA, State of Illinois, ss: I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that the foregoing is a true and correct copy of a certificate.of the election of Lyman Trum- bull to the United States Senate, as filed in my office by the clerk of the honse of rep- resentatives. In testimony whereof, I have hereunto set my hand and affixed the seal of said State, this 15th day of February, A. D. 1855. / (1. 8,] ALEXANDER STARNE, Secretary of State. LYMAN TRUMBULL. 231 Monpay, December 3, 1855. Mr. Crittenden presented the credentials of the Hon. Lyman Trumbull, elected a Sen- ator by the general assembly of the State of Illinois for six years from the 4th day of March, 1855; which were read. Mr. Cass presented the protest of certain senators and representatives of the legisla- ture of the State of Illinois against the election of the Hon. Lyman Trumbull. bo oun prescribed by law was administered to Mr. Trumbull, and he took his seat in the Senate. THURSDAY, December 20, 1855. Mr. Trumbull presented a certified copy of a letter of Lyman Trumbull, addressed to the governor of Illinois, resigning the office of justice of the supreme court of that State; which was referred to the Committee on the Judiciary. On motion by Mr. Cass, Ordered, That the protest of certain senators and representatives of the legislature of Illinois against the election of the Hon. Lyman Trumbull as a Senator of the United States, on the files of the Senate, be referred to the Committee on the Judiciary. [Some remarks on the question whether the subject should go to the Committee on the Judiciary or to a select committee are found on page 58 of the Congressional Globe referred to in the head-note. ] MonpaAy, February 4, 1856. The President pro tempore presented a certificate of the governor of Illinois of the elec- tion of the Hon. Lyman Trumbull by the legislature of that State as a Senator in Con- gress, and of his election and appointment as a justice of the supreme court of Illinois, with an extract from the constitution of Illinois respecting the eligibility of judges of the courts of that State to other offices during the term for which they are appointed; which was referred to the Committee on the Judiciary. [Some remarks on the question of reference of the communication are found on page 343 of the Congressional Globe referred to in the head-note. Mr. Seward cited the ad- mission of Hon. N. P. Tallmadge, of New York, as a precedent in favor of the right of Mr. Trumbull. ] WEDNESDAY, February 20, 1856. [Some remarks made on Mr. Trumbull’s eligibility are found on pages 466-468 of the Congressional Globe referred to. ] WEDNESDAY, February 27, 1856. Mr. Butler, from the Committee on the Judiciary, to whom was referred the protest of certain senators and representatives of the legislature of Illinois against the election of the Hon. Lyman Trumbull as a Senator of the United States, with other papers, sub- mitted a report (No. 15). The Senate proceeded to consider the report; and, in concurrence therewith, Ordered, That the committee be discharged from the further consideration of the sub- ject. ’ Ordered, That the report, with the accompanying papers, be printed. Mr. Crittenden submitted the following resolution for consideration: “ Resolved, That-Lyman Trumbull is entitled to a seat in this body asa Senator elected by the legislature of the State of Illinois, for the term of six years, from the 4th of March, 1855.’’ 5 The Senate proceeded, by unanimous consent, to consider the said resolution; and, On motion by Mr. Stuart, Ordered, That the further consideration thereof be postponed to and made the special order of the day for Monday, the 3d of March next. [A short debate is found on pages 514-515 of the Congressional Globe referred to. ] Monpay, Varch 3, 1856. The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, the 27th of February, declaring the Hon. Lyman Trumbull entitled to a seat as a Sen< ator of the United States; and, After debate, On motion by Mr. Stuart, Ordered, That the further consideration of the resolution be postponed until to-mor- row. [The subject is debated at length on pages 547-552 of the Congressional Globe referred to. ] 232 SENATE ELECTION CASES. TurEsDAY, March 4, 1856. The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, the 27th of February, that the Hon. Lyman Trumbull is entitled to a seat in the Senate of the United States; and, After debate, On motion by Mr. Weller, Ordered, That the further consideration thereof be postponed until to-morrow. [The debate is continued on pages 562-567 of the Congressional Globe referred to.] WEDNESDAY, March 5, 1856. The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, the 27th of February, in relation to the rights of the Hon. Lyman Trumbull to a seat in the Senate; and, After debate, een the ee to agree to the resolution, it was determined in the affirmative—yeas , nays 8. On motion by Mr. Toucey, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Adams, Allen, Bell of Tennessee, Bright, Brown, Butler, Cass, Collamer, Crittenden, Dodge, Durkee, Evans, Fessenden, Fish, Foot, Foster, Geyer, Hale, Hamlin, Harlan, Houston, Hunter, James, Mallory, Saree Pearce, Reid, Rusk, Sebastian, Seward, Sumner, Toucey, Wade, Wilson, and ee. Those who voted in the negative are Messrs. Clay, Iverson, Johnson, Jones of Iowa, Pugh, Slidell, Stuart, and Weller. So it was 2 Resolved, That Lyman Trumbull is entitled to a seat in this body as a Senator elected by the legislature of the State of Illinois for the term of six years from the 4th of March, 1855. [The debate is concluded on pages 579-584 of the Congressional Globe referred to. ] (Extracts froma speech of Mr. Crittenden, of Kentucky, delivered March 8, 1856, in support of the legality of Mr. Trumbull’s election, taken from pages 547 and 548 of the Congressional Globe referred to in the head-note.] «The facts of the case are few and undisputed. Mr. Trumbull was, in point of fact, chosen by the legislature of Illinois as a Senator inthis body. It is true that some four years before that time he had been elected a judge of one of the circuit courts of that State, butit is also true that he had resigned that office about eighteen months before his election asa Senator. The first question, therefore, that presents itself is, whether upon these facts, and a proper construction of the constitution of the State of Illinois, he is entitled to his seat? No objection is made to any qualification required by the Constitution of the United States. The question is, whether there is anything in the constitution of Illinois which can invalidate his election. I will first consider the question as it arises upon the constitution of Illinois, and then as respects the Constitution of the United States. The provision of the constitution of Illinois I desire to read to the Senate. The tenth section of the fifth article of the constitution of that State reads in these words: “(The judges of the supreme court shall receive a salary of $1,200 per annum, payable quarterly, and no more. The judges of the circuit courts shall receive a salary of $1,000 per annum, payable quarterly, and no more. The judges of the supreme and circuit courts shall not be eligible to any other office or public trust, of profit in this State, or the United States, during the term for which they are elected, nor for one year there- after. All votes for either of them for any elective office (except that of judge of the supreme or circuit court) given by the general assembly, or the people, shall be void.’ ‘Mr. Trumbull was elected on the 7th of June, 1852, judge of the circuit court for the term of nine years. Having held that office less than one year, he resigned on the 19th of May, 1853, to take effect on the ensuing 4th of Juiy. He was elected to the Senate of the United States on the 8th of February, 1855, more than eighteen months after his resignation, but before the expiration of the nine years for which he had been originally elected a judge. “To these facts we are to apply the constitutional provision which I have read, which declares that no judge of the supreme court or circuit court should be eligible to any other office for the term for which he was elected, and for one year thereafter. Does this prohibition in the constitution of Illinois apply to such a case as this? I say that it does not. In order to ascertain the meaning of any instrument, we must endeavor to ascertain the intention of its framers. What was the intention of the framers of this provision? It was to preserve the independence of their judiciary, and to prevent the LYMAN TRUMBULL. 938 possibility of one of the judges of the State using the influence of that office to obtain another. That is the reason and the sole reason for this prohibition; and to accomplish this object, the constitution of Illinois provides not only for ineligibility during the term of nine years, but for one year thereafter, lest he should, by anticipated contrivances, intrigues, and influence, provide for another office by the use of the influence which his present office affords. One year after the expiration of his office was supposed to be suf- ficient for that purpose. * * * * * * * “Now, sir, suppose I am wrong; suppose that, without any reason, without any mo- tive, without any mischief to be suppressed, without any foundation for any of the ob- jections applicable to the incumbent of office, this constitution shall, by the force of its mere letter, be applied to this case, and that it does create, so far as it can act, an im- pediment, an obstacle to the election of this gentleman, is such a provision valid, or can it affect his right, when we look to the Constitution of the United States under which the Senate has been created? I think clearly not. We are to look to the Constitution of the United States for the whole frame of this Government. It has created all the powers and all the instruments of this Government. It has created the Senate. Before this creation, neither the State of Illinois as such, nor any other State in the Union, had any power to elect a Senator. There was no such office to be filled by them as Senator of the United States. Their agency was simply employed by the Federal Constitution. The agency of the legislatures of the several States was employed to elect Senators who constitute thisbody. It is an all-important branch of the Government. The designation of the power that was to elect, the designation of the persons qualified to be elected, all entered into the very essence of the subject. All this was to have its influence on this Government. All and every single circumstance of this was to have its influence in connecting the State governments and the General Government, and in connecting them in such a way as to preserve that.species of political relations between them which it was thought would operate most advantageously to all. “This was the view of the framers of the Constitution of the United States. It wasa subject: for them whether the legislature should elect Senators, whether the people should elect them, or whether the governors of the several States should appoint them. All this was within the competency of the framers of the Constitution. Neither people, nol governors, nor legislatures had previously any power to elect or appoint a Senator. There was no such officer; there was no such power. The whole was a new crea- tivn. The Constitution determines that the power to choose Senators shall be in the legislatures of the several States. The power to elect Senators was committed to the legislatures. Who shall they be, was the next question. The question was, how to designate a Senator by some prescribed qualification, so as to fix the class from which he should come. Shall he be a man who is required to possess any particular amount of fortune? Shall he be a man who must be subjected to some religious test? Of what age shall he be? ‘‘Were not all these points fairly presented to the framers of the Constitution of the United States? Were they not important questions to be acted upon and decided? They were framing the Government. The constitution of this body was an essential part of the Government. That was to depend on the parties, or the condition of the parties, out of whom they would make this great counci! of the nation. Should he be a citizen? Might they select him anywhere? Should he bean inhabitant of his State? Might he be of any age? All these subjects being considered, the Constitution of the United States decides upon the whole matter by providing that each Senator shall be of the age of thirty years, shall have been at least nine years a citizen of the United States, and shall be an inhab- itant of the State from which he is chosen. ‘‘Now, sir, does this not embrace the whole subject? Does it not regulate the whole subject? According to the plain meaning of the Federal Constitution every inhabitant of a State, thirty years of age, who has been nine years a citizen of the United States, is eligible to the office of Senator. What more can be said about it? It is now supposed by those who contend that Mr. Trumbull is not entitled to his seat, that it is competent for a State, by its constitution—and I suppose they would equally contend by any law which the legislature might from time to time pass—to superadd additional qualifica- tions. The Constitution of the United States, they say, has only in part regulated the subject, and therefore it is no interference with that Constitution to make additional tegulations. This, I think it will be plain to all, is a mere sophism, when you come to consider it. If it was a power within the regulation of, and proper to be regulated by, the Constitution of the United States, and if that Constitution has qualified it, as I have stated, prescribing the age, prescribing the residence, prescribing the citizenship, was there anything more intended? Ifso, the framers of the Constitution would have said so. The very enumeration of these qualifications excludes the idea that they intended 2934 SENATE ELECTION CASES. any other qualifications. That is the plain rule of ordinary construction; but, for a reason above all technical considerations, it is applicable here. The object of the Fed- eral Constitution was to have a body framed by a uniform rule throughout the United States, coming here to constitute this great council of the country—coming here by the agency of the same elective power, the State legislatures—coming here under the same requirements, and with the same qualifications—and standing here upon a perfect and exact equality in all respects to represent the nation justly and equally, and with a sole regard to the common welfare of the Republic.” [Extract from a speech of Mr. Pugh, of Ohio, adverse to the right of Mr. Trumbull, delivered March 8, 1856, taken from pages 549, 550 of the Congressional Globe referred to in the head-note.] ‘The Senator from Kentucky claims, in Mr. Trumbull’s behalf, that the Constitution of the United States has prescribed the qualifications requisite for a Senator, and that no State can add to or subtract from those qualifications. “‘T am not disposed to try the virtue of thisconclusion by logical tests; I deny the truth of its premises. The Constitution of the United States does not prescribe the qualifica- tious of a Senator in the sense here assumed. Its language is that of exclusion, and not of qualification: ‘**No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.’ ‘*In this instance, as in all others, the language of the Constitution was aptly selected with a view to the nature of our Federal Government. It was intended that each Sen- ator should be thirty years of age, and should have been nine years a citizen of the United States, because the duties of his office were thought to require an experienced judgment and considerable familiarity with the course of public affairs. And to secure the election of Senators from all extraneous influence, such as might have been appre- hended perhaps from the dictation of the large States or the patronage of the Federal Government, it was furthermore declared that each Senator should not merely bea citi- zen but an actual resident—‘inhabitant’—of the State for which he is chosen. “Tagree that no State can dispense with or subtract from the requisites prescribed in the Federal Constitution; but I can see no pretense for asserting that the States may not superadd any qualification: which is consistent with those requisites. A Senator is an officer of the Federal Government; he is also an officer of his own State. He is elected to represent the people of the State, in an aggregate and organized capacity, as one of the sovereign parties to our Federal compact. He is elected, to be sure, by the legislature; but the legislature is itself a body of representatives chosen by the people. His constituency is equal to that of all the members of the legislature taken together. It consists of the people at large acting through counties, districts, or other established subdivisions, and thus expressing the will of the State as a public corporation. While the Federal Constitution might prescribe certain requisites, therefore, in order to secure the interests of the Federal Government, the rights of the citizens of all the States, and the welfare of the whole Union; while it might well do this and bind each State to an observance of such requisites, no reason can be assigned why the people of a State— whose peculiar representative and officer in equal degree their Senator is—might not prescribe other qualifications, in addition, for the purpose of protecting their separate interests, rights, and welfare. I agree, of course, that such additional requisites must not only be consistent with those specified in the Constitution of the United States, but with the whole spirit and tenor of that instrument. No mischief can result to the Union or to other States from this course of decision; and it leaves to the States that degree of independence, that reservation of powers, which the tenth amendment to the Constitu- tion so plainly inculcates. “There is no conflict between the Constitution of the United States and the constitu- tion of the State of Illinois. They are perfectly consistent. Now, so far as my learning extends there is no principle more firmly established in the law of England and of America than this: that whenever two enactments can stand together—whether they be called ean a statutes, or by what name soever—they shall stand together, and both shall be obeyed. “Tt is suggested, however, that the legislatures of the States derive their power of elect- ing Senators from the Constitution of the United States and not from their respective State constitutions. But this, if admitted to its full extent, will be found immaterial. It is not a power conferred on any legislature as matter of gift or permission from the Federal Government, but asa matter of right, and because the legislature represents the people and acts only as an agent for the people. Surely, I submit, the Constitution of the United States never designed to exalt the agent above the principal, the creature above the creator, the minister above the sovereign, as this proposition assumes.” JAMES HARLAN, 285 (Thirty-fourth Congress—Third session. ] JAMES HARLAN, Senator from Ioww from March 4, 1855, to January 12, 1857, and from January 29, 1857, till May 15, 1865, when he resigned. December 13, 1854, the legislature of Iowa met in joint convention in the hall of the house of rep- resentatives for the purpose of electing a United States Senator for the term beginning March 4 1855. After several ineffectual ballots and adjournments they met January 5, 1855, and adjourned to 10 o’clock of the next day. After this adjournment of the joint convention the senate returned to its own chamber and adjourned to the same hour. When the senate met January 6, it at one adjourned till 9 o’clock, January 8, The senate, therefore, not beingin session after 10 o’clock on January 6, did not proceed to the hall of the house as a body, though certain members of the senate attended, The body thus assembled consisted of a majority of the house and a minority of the members of the senate, together constituting a majority of the members of the convention. They proceeded to ballot,and Mr. Harlan received 52 votes (52 being a majority of the members of the . joint convention), and was declared duly elected. The senate of lowasent resolutions to the United States Senate protesting against the validity of the election. Mr. Harlan was admitted to the seat December 8, 1855, the first day that Congress met in the term for which he was elected. December 15, 1856, the subject was referred to the Committee on the Judiciary. January 5, 1857, the commit- tee reported the proceedings of the Iowa legislature and the resolution “ that the seat of the afore- said gentleman be declared vacant,” which resolution passed the Senate January 12, 1857, by a vote of 28 yeas to 18 nays. The questionto be decided by the Senate, which was debated at great length, was whether the body electing Mr. Harlan was the legislature of lowa within the meaning of the first clause of the third section of Article I of the Constitution ; whether it was essential to the va- lidity of the election that the senate as abody should be present, or whether a majority of the indi- vidual members of the convention constituted the legislature even if the senate as a body was not present, nor even a majority of the members composing thesenate. Extracts from speeches, which are given below, give a full statement of the facts and points discussed by the Senate. The history of the case here given consists of an extract from a speech of Mr. Bayard, of Dela- ware, in support of the resolution reported by the committee, taken from page 249 of the Congres- sional Globe, 3d sess. 84th Cong., 1856-67; an extract from a speech of Mr. Seward, of New York, in opposition to the resolution, taken from pages 260, 261 of thesame volume; a transcript of the pro- ceedings of the Senate relating to the case from Senate Journals, 2d sess. 33d Cong., 1st and 2d sess. 34th Cong., and 3d sess. 34th Cong.; and the report of the committee from Senate Reports, 3d sess, 34th Cong., Report No. 300. The debates in the case are found in the Congressional Globe, 3d sess., 34th Cong., 1856-’57, Special references to the debates of each day are inserted below. [Extract from speech of Mr. Bayard delivered January 7, 1857.] “The substantial facts of the case I understand to be these: A resolution was passed in the house of representatives of Iowa on the 13th of December, 1854, proposing to the senate of Iowa to meet in joint convention on the 15th of December for the purpose of electing a Senator of the United States. The resolution was amended by the senate by fixing 2 o’clock or 2.30 o’clock of the same day for the joint meeting. The house concurred in the amendment, and the bodies went into joint convention on that day, a quorum of each house being present when they met. They proceeded to ballot, and having balloted ineffectually they adjourned at various times—on one occasion, I think, from the 14th of December, 1854, to the 5th of January, 1855. On the 5th of January they met, and still failed to elect a Senator. They adjourned to 10 o’clock on Saturday morning, the 6th of January. The senate (as throughout the whole of these roceedings it appears each house did) after they separated returned to their own cham- her and adjourned to the same hour on the nextday. When the senate met at 10 o’clock on the 6th of January they, without doing any business whatever, adjourned to Monday at 9 o’clock. This adjournment was carried by a vote of the majority, on the yeas and nays—16 to 15—the whole body, consisting of thirty-one members, being present. The senate of Iowa was, therefore, not in session on Saturday atter 10 o’clock. ‘The house of representatives met—at what hour I do not know; but after transact- ing appropriate business as a house of representatives they proceeded to receive, not the senate of Iowa, which was not in session, but to receive members of the senate of Iowa as members of the joint convention; and when those members were assembled there, to- gether with the members of the house, they constituted a majority of the two branches combined, that is, a majority of the whole number of persons in the convention. But there was present—I speak now of persons present in the sense of legal presence, as evi- denced by the vote—only a majority of the house and a minority of the senate, a quorum of one body and not a quorum of the other. The speaker of the house assumed that the members thus assembled were a regularly-organized convention of the legislature with the power to elect a United States Senator. No vote was taken by the convention 236 SENATE ELECTION CASES. on that point. An appeal was taken from the decision and it was contended that the house ought to decide whether it was organized. That appeal the speaker denied, and there was no vote taken by the convention on that question at all. The roll was called, and as a majority of the members of both branches (not a majority of each branch) an- swered to their names the speaker declared that the joint convention was regularly organized according to its adjournment, and they proceeded to vote for a United States Senator. After electing first a teller in lieu of the senate teller, who was absent, and also a president pro tempore of the convention, the members proceeded to vote viva voce for a Senator of the United States. A majority of the members of the house of representatives voted, but only fifteen senators voted on that occasion. “These are the real facts of the case as they appear from the journals and papers. On the vote to which I have just alluded being taken, it was declared that the honorable gentleman who now holds the seat was regularly elected to the Senate of the United States; and he came here and was admitted. The senate of Iowa met on the Monday morning next after the adjournment of Saturday, and after this alleged election had taken place, and their first act was to protest against it as done without their authority as a co-ordinate branch of the legislature of Iowa. “It will be observed also from the facts of this case that the journals show that on all occasions when the two houses met they met as houses; a message was sent from one house to the other. The record shows that the senate, preceded by its president, came to the hall of the house of representatives, and the members of the senate had seats as- signed them as a co-ordinate branch of the legislature; and after that was done, at all previous meetings, they proceeded to vote. On this occasion there was no senate in ses- sion; but the record shows that several members of the senate, without saying how many, were present. The fact is conceded, I understand, that there were but fifteen members of the senate who voted on that occasion, the whole senate consisting of thirty-one; and hence less than a quorum of the senate participated in the election. ‘On this state of facts the question which I suppose to arise is, whether ‘the legislature’ of a State, under the language of the Federal Constitution delegating to the legislature the right to elect Senators of the United States, is to be taken to mean the individual members of the legislature or the body or bodies of which the legislature is composed. I suppose the term as used in the Constitution means the bodies of which the legislature is composed. The honorable Senator from Georgia, if I appreciate his argument, insists that the power being delegated to the legislature is vested in the members of the legis- lature, and that whenever a majority of the members of the whole legislature under a law such as that existing in Iowa vote for a man he is elected, though one of the co- ordinate branches of that legislature may not vote for him, and may, as a body, refuse to go into an election. Sir, I hold it to be a principle of law which has, I think, no ex- ception that where two integral bodies are authorized to do an act it cannot be done without the consent of those two integral bodies. They must both be present and act in the matter or there can be no validity in the act done. This is a universal law. I can call to mind no case where a contrary principle prevails, whether relating to legisla- tive action or corporate action. Indeed, in reference to corporations it has been decided over and over again that where there are two integral bodies who must concur in an act they must both be present and act upon the matter as bodies, not as individuals.’’ [Extract from speech of Mr.Seward delivered January 9, 1857.] “The objections rest on these grounds: “First. That the legislature of Iowa consists of two co-ordinate branches. “Second. That it can do novalid act without the co-ordination and co-operation of both of those branches, each acting, or at least appearing in the transaction distinctly by a majority of this branch, or a quorum of it. * y “T think the objection isunsound. The legislature of Iowa sustains double relations— one a local one, as the law-making authority of Iowa; the other, Federal, an electoral college to choose Senators in Congress from Iowa. In the one relation, it acts exclu- sively under the constitution of Iowa; in the other, exclusively under the Constitution of the United States. I may concede that in the former relation it must act by inde- pendent co-operation or co-ordination of both houses in all cases, ‘‘T admit that the regulations, which are under review, do require the two houses to resolve themselves into one common body, in which the separate identity or individu- ality of those separate branches is extinguished, for the purpose of choosing a Senator in Congress. And that, when the merger has been made, and the convention constituted, it is independent of each of the two branches, and as to that transaction supersedes them both, and cannot be terminated or arrested by its own act,or by the concurrent and co-ordinate action of the two houses, being a creation of both. : “Tn this view, the appearance of the senators in their collective capacity at the conven- tion was merely formal, proper in itself, but of no essential value; and the failure of the JAMES HARLAN. 237 senators to practice the same form cannot vitiate the election, nor can the subsequent protest of the senate. “Tt is alleged that such a complete extinguishing of the two houses of the legislature is unconstitutional. “But it is too late to raise that question. Legislatures in the States are divided into two distinct houses, whose members differ generally in qualifications or in terms of serv- ice, to secure delay and deliberation and moderate collision in acts of legislation. But this very delay, deliberation, and collision practically disqualifies such bodies from acting as an electoral college. “It was found necessary in the very beginning of the Government to provide for bring- ing the two branches of the legislature to an agreement in that case. “The expedient adopted was the simple one, probably the only practicable one, of merging the two houses into one, for this purpose. The expedient has been adopted in nearly all the States, and is used either in the first instance, as in Iowa, or a last alterna- tive, in case of disagreement, as in New York, Georgia, and Virginia. It has been acqui- esced in by the Senate of the United States from the first, and is therefore settled and constitutional. “Nor is it without reason. The legislature of a State is merely a college of suffragans interposed between the Senate of the United States and the people of the States. The choice of the legislature is the indirect choice of the people of the State. “The function of choice is in nosense one of a legislative nature. It isan extra-legis- lative act, an executive transaction, an action, so to speak, ex officio. The Constitution of the United States gives supreme right to Congress to prescribe in what manner the legislature of a State shall perform that act independently of all State constitutions. “The Congress of the United States has practically waived this right, and devolved that duty on the legislature of Iowa, as it was aut orized to do by the Constitution of the United States. “‘The manner prescribed by the legislature of Iowa does not conflict with any article of the Constitution of the United States. It would not be at all affected by any conflict with the constitution of Iowa, insomuch as no control over the subject whatever resides in the people of Iowa by whom the constitution was made. “Mr. President, this transaction is a judicial one. I have approached it, I trust, free from partiality or prejudice. The question is an important one. The decision may be drawn into a precedent to affect hereafter the rights of sixty States, and the safety, wel- fare, and union of this confederate Republic hundreds of years hence, when this people shall number, not as now by tens, but by hundreds of millions. ‘J therefore confine my judgment to this case as it stands on the facts. I donot pre- judge other cases which shall present other facts, nor lay down principles for other and extreme cases. I can foresee possible abuses to come from a misapplication of the prin- ciples I have adopted. But abuses will attach themselves to all principles as barnacles will to the smoothest and strongest bottoms. : “T repose on my conclusion with the more confidence because it is one which tends to secure the Senate, and through it the Federal Government, against the efforts of faction and of ambition to disorganize the Union and subvert the republican Government here, which is the chief guarantee of civilization everywhere.” SATURDAY, March 3, 1855. The President pro tempore laid before the Senate a letter of the president of the senate of Iowa, accompanied by resolutions of the senate of that State, relative to the joint con- vention alleged to have been held by the general assembly of Iowa for the election of an associate judge and a United States Senator; which was read. Ordered, That it lie on the table. Monbay, December 3, 1855. Mr. Jones, of Iowa, presented the credentials of the Hon. James Harlan, chosen a Sen- ator by the general assembly of the State of Iowa ‘‘to represent’ the said State ‘‘in the Senate of the United States;’’ which were read. On motion by Mr. Mason, the resolutions of the senate of the State of Iowa, communi- cated March 3, 1855, were read. ds The oath prescribed by law was administered to Mr. Harlan, and he took his seat in the Senate. L ; : [These resolutions are found in the report of the committee given below. J THURSDAY, August 14, 1856. On motion by Mr. Jones, of Iowa, that the credentials of the Hon. James Harlan, of Iowa, with the resolutions of the senate of Towa relative to his election as a Senator from that State, on the files of the Senate, be referred to the Committee on the Judiciary. 238 SENATE ELECTION CASES. Ordered, That the further consideration of the motion be postponed to and made the special order of the day for to-morrow at 12 o’clock. [Remarks in regard to the reference of the subject to a committee are found on page 2098 of the Congressional Globe, part 3, 1st sess, 34th Cong., 1855-56. ] FRIDAY, August 15, 1856. On motion by Mr. Hunter that the special order of the day be postponed, and that the Senate proceed to the consideration of the bill (H. R. 201) making appropriations for certain civil expenses of the Government for the year ending the 30th.of June, 1857, it was determined in the affirmative—yeas 27, nays 19. ee ay may be found on page 593 of Senate Journal, 1st and 2d sess. 34th Cong., [A debate on the subject of postponement is found on pages 2129 and 2130 of the Con- gressional Globe, part 3, Ist sess. 34th Cong., 1855-56. ] Monpay, December 15, 1856. The Senate resumed the consideration of the motion made by Mr. Jones, of Iowa, the 14th of August last, to refer the credentials of the Hon. James Harlan to the Committee on the Judiciary. On motion by Mr. Bayard to amend the motion by striking out ‘to the Committee on the Judiciary ’’ and inserting ‘‘a select committee,’’ The question was put on referring the same to the Committee on the Judiciary, and it was determined in the affirmative—yeas 31, nays 13. ee vote is found on page 42 of the Senate Journal, 3d sess. 34th Cong., 1856-57. ] 0 it was Ordered, That the credentials of the Hon. James Harlan, of the State of Iowa, be re- ferred to the Committee on the Judiciary. [A statement of the facts of the case by Mr. Harlan, also a debate on the question whether the subject should more properly go to the Committee on the Judiciary or to a select committee, are found on pages 112-117 of the Congressional Globe, 3d sess. 34th Cong., 1856-57. ] Monpay, January 5, 1857. Mr. Butler, from the Committee on the Judiciary, to whom were referred the creden- tials of the Hon. James Harlan, a Senator from the State of Iowa, reported the following resolution: “ Resolved, That the seat of the aforesaid gentleman be declared vacant.”’ Ordered, That the report be printed. REPORT OF COMMITTEE. [The Committee on the Judiciary consisted of Messrs. Butler (chairman), Toucey, Bay- ard, Geyer, Toombs, and Pugh. In THE SENATE OF THE UNITED STATES. JANUARY 5, 1857.—Ordered to be printed. Mr. Butler made the following report: The Committee on the Judiciary, to whom were referred the credentials of the Hon. James Harlan and the protest of the senate of Iowa, have had the same under consider- ation, and submit the following statement: The following proceedings were had in the legislature of the State of Iowa in the elec- tion of a United States Senator: SATURDAY, December 9, 1854. “ Resolved (the senate concurring), That the house of representatives will meet the senate in the hall of the house on Tuesday next at 2 o’clock p. m., for the purpose of electing a Senator of the United States and judges of the supreme court. ‘*On motion, ‘The resolution was laid on the table.’? DECEMBER 12, 1854. Resolution fixing the time for the election of a United States Senator was taken up and amended so as to fix Friday, the 15th instant, as the day for an election. ‘Message from the senate, by Mr. Rankin, their secretary: “Mr, SPEAKER: I am instructed by the senate to inform the house that the senate has concurred in the house resolution to go into joint balloton Friday, the 15th instant, JAMES HARLAN. 239 for the purpose of electing a United States Senator and supreme judges, with the fol- lowing amendment, viz: To strike out the words ‘Friday, the 15th instant, at 2 o’clock,’ and insert this: ‘ Wednesday evening, at 2.30 o’clock.’ “ Agreed to. ‘* Joint convention of the two houses; the president of the senate acting as president of the convention, and the clerk of the house acting as secretary.”’ On motion, the convention proceeded to the election of a United States Senator for six years, from and after the 4th day of March next. ‘The president appointed Mr. Workman teller on the part of thesenate. Thespeaker appointed Mr. Kinert teller on the part of the house.”’ The convention proceeded to a vote, which resulted in no choice. The convention proceeded to a second ballot, which resulted in no choice. The convention adjourned until to-morrow at 10 o’clock. DECEMBER 14, 1854, By order of the president the roll of the convention was called. Same tellers as yesterday. Motion to adjourn until Thursday next at 10 o'clock. Motion prevailed. “The president announced the convention adjourned until 10 o’clock a. m. Thum day, December 21.”’ THURSDAY, December 21, 1854. Joint convention of the two houses; the president of the senate acting as president of the convention, and the clerk of the house acting as secretary. Same tellers acting. ‘ The president having announced the purposes of the convention, and directed the roll to be called— “The convention proceeded to vote for a United States Senator for the term of six years, from and after the 4th day of March next.” After several ballots without making a choice, the convention adjourned until the 5th day of January, 1855. FRIDAY, January 5, 1855. Convention met. The president announced the purposes of the convention. After several ineffectual ballots, on motion, the convention adjourned until to-mor- row morning 10 o’clock. SATURDAY, January 6, 1855, "Tt being the hour of 10 o’clock a. m., the speaker of the house announced the same, and the special order to be a joint convention of the senate and house of representatives, pursuant to adjournment, for the purposes of electing a United States Senator and judge of the supreme court. ‘¢ A committee of three was appointed to wait upon the senate, and inform that body that, the house of representatives was now ready to receive the senate in joint conven- tion,’’ &e. if “The committee appointed to wait on the senate reported that they had discharged that duty, by proceeding to the senate chamber and delivering their message, and in- forming the secretary of the senate thereof; that the secretary informed the committee that the senate had adjourned over to Monday next. ‘+ A number of the members of the senate entered the hall of the house without their president and took their seats. “The speaker announced that the joint convention of the senate and house of repre- sentatives was now in session, pursuant to adjournment, for the purposes of electing a judge of the supreme court and a United States Senator. ‘Mr. Samuels rose to a question of order, to wit: Was thé joint convention properly convened? The speaker announced that the convention had now convened. ‘¢Mr. Samuels appealed from the decision of the speaker, and asked for the yeas and nays, and insisted on his appeal being decided only by the house of representatives. ‘The roll of the joint convention was called, and the following members of the conven- tion answered to theirnames, being a majority of both branches of the general assembly. ‘Here follow the names of fifty-seven members. ] ‘Those members of the convention and members of the house of representatives, ex- cept Mr. Franklin, excused, who did not answer to their names refused to answer, or retired from the hall during the call of the roll. ‘The speaker announced that amajority of the members of the general assembly being present, that there was a quorum of the joint convention now convened, pursuant to ad- 240 SENATE ELECTION CASES. journment, and that the appeal of Mr. Samuels could not be taken to the members of the house of representatives only. ‘‘On motion of Senator Anderson, William W. Hamilton, a senator from Dubuque County, was elected president pro tempore of the convention. “The president of the senate still being absent, “The speaker of the house of representatives in his chair, and the clerk of the house of representatives acting as secretary of the joint convention, ‘The roll of the convention was called, and the following members of the convention did not answer to their names, to wit. [Here follow the names of forty-four members. ] ‘*On motion of Mr. Russell, “The sergeant-at-arms was directed to notify members of the convention who had not answered to their names that the convention was now convened, and to request their attendance. “Senators Ramsay and Thurston appeared on the floor of the convention and desired to be considered as not acting in the convention. “The sergeant-at-arms reported that he had performed his duty, as required by the convention; that a few of the members he could not find. ‘On motion of Mr. Conkey, “Further proceedings under the call were dispensed with. “Mr. Workman, teller on the part of the senate, being absent, ‘‘Mr. Needham was appointed in his stead, ‘Mr. Kinert acting as teller on the part of the house. “The convention proceeded to the election of a second associate judge of the supreme court;’’ after which ‘‘the convention proceeded to the election of a United States Sen- ator #08 Ue State of Iowa for the term of six years from and after the 4th of March next. “‘Mr. Anderson nominated James Harlan, of Henry County. “‘ The convention proceeded to vote for a United States Senator, being the ninth vote, which resulted as follows: ‘* Those voting for James Harlan were— [Here follow the names of fifty-two members. “* Messrs Clark, of Marion, and Neely voted for Bernhart Henn; Mr. McAchran voted for Wm. McKay; Mr. Witter voted for James Grant. James Harlan having received a majority of all the votes cast and a majority of the whole number of the members of the general assembly, was declared duly elected a Senator of the United States for the State of Iowa for the term of six years from and after the 4th day of March next. “The certificate of election was made out and duly attested in the presence of the convention,’ &. * * * HALL OF THE HoUSE oF REPRESENTATIVES, January 6, 1855. . This will certify that, at an election by the general assembly of the State of Iowa, in joint convention, on Saturday, the 6th day of January, A. D. 1855, James Harlan was duly elected a Senator to represent this State in the Senate of the United States for the term of six years from and after the 4th day of March next. WILLIAM W. HAMILTON, President pro tempore. REUBEN NOBLE, Speaker of the House of Representatives. JOHN R. NEEDHAM, DAVID KINERT, . Tellers. On motion of Mr. Hills, the joint convention adjourned sine die, and the members of the senate retired.—Journal of the House of Representatives of the State of Iowa. Attest: Monpay Mornina@, January 8, 1855. Mr. Coolbaugh offered the following: / ‘Whereas it is reported that the journal of the house of representatives, as read this morning in the presence of the house, alleges that a joint convention of the general assem- bly of this State was held in the hall of the house on Saturday, the 6th instant; and, ‘‘ Whereas it is alleged in said journal that said joint convention proceeded to elect one Norman W. Isbell as an associate judge of the supreme court of this Stateand one James JAMES HARLAN. 241 Harlan as a Senator of the United States for the term of six years from the 4th day of March next: Therefore, “ Resolved, That inasmuch as the senate has no knowledge of any such joint conven- tion, and did not participate in the proceedings, therefore it hereby protests against the oe of the said so-called joint convention, and declares the same to be void and of no effect. ‘‘ Resolwed, That @ copy of this preamble and resolution be signed by the president and certified to by the secretary of the senate, be presented to the governor of this State, and also a copy forwarded to the presiding officer of the Senate of the United States, with the request to lay the same before that body.”’ Upon the adoption of which, the yeas and nays, being demanded, were ordered, and were as follows—yeas 17, nays 14. " The preamble and resolutions were adopted.—Jouwrnal of the senate of the State of Iowa, 854~'55. AN ACT to provide for the election of United States Senators and other officers. SECTION 1. Be it enacted by the general assembly of the State of Iowa, That at each and every regular session of the general assembly of this State next preceding the expiration of the constitutional term of service of a United States Senator, or at any session when a vacancy shall exist, at an hour to be designated by a resolution of either branch, with the concurrence of the other branch of the general assembly, the members of both houses thereof shall meet in convention in the hall of the house of representatives, for the pur- pose of electing a Senator or Senators by joint vote, in pursuance of the Constitution of the United States, to represent this State in the Senate of the United States. So. 2. The president of the senate, or in his absence the speaker of the house of rep- resentatives, shall preside over the deliberations of the convention; and in the absence of both a president pro tempore shall be appointed by joint vote. Sxc. 3. At any time prior to meeting in convention as aforesaid, after the time for meeting has been designated as aforesaid, each branch of the general assembly shall ap- point one teller, and the two tellers thus appointed shall act as judges of the election. Src. 4. The secretary of the senate and the chief clerk of the house of representatives shall each keep a fair and correct record of the proceedings of the convention, which shall be entered upon the journals of each branch of the general assembly. The chief clerk of the house of representatives shall act as secretary to the convention. Src. 5. The names of the members of the general assembly shall be arranged by the secretary in alphabetical order, and each member shall vote in the order in which his name stands when thus arranged. Sec. 6. When the convention shall be organized as aforesaid the members present shall proceed to choose viva voce a Senator or Senators, as the case may be, to represent this State in the Senate of the United States. The name of the person voted for and of _the members voting shall be entered in writing by the tellers, who shall, after the sec- retary shall have called the names of the members a second time, and the name of the person for which each member has voted, report to the president of the convention the number of votes given for each candidate. Sxc. 7. If neither of the candidates shall receive the votes of a majority of the mem- bers present a second poll may be taken, and so from time to time until some one of the candidates shall receive a majority of the votes of the members present. Sec. 8. If the election shall not be completed at the first meeting the president shall adjourn the convention whenever and to such time as a majority of the members then present shall determine; and sofrom time to time, until some one of the candidates shall receive a majority as aforesaid. Src. 9. When any person shall have received a majority of the votes aforesaid the president of the convention shall declare him to be duly elected a Senator to represent this State in the Senate of the United States; and he shall in the presence of the mem- bers of both houses sign two certificates of election, attested by the tellers, one of which he shall transmit to the governor, and the remaining one shall be preserved among the records of the convention and entered at length on the journals of each house of the general assembly. Sec. 10. Upon the reception of said certificate the governor shall cause a credential to be made out, with the great seal of the State affixed thereto, and cause it to be delivered to such Senator-elect, which credential shall be in form following. [Here follows the form of the credential. ]|—Laws of Iowa, 1847, pp. 92, 93. The Constitution of the United States contains the following provision in reference to the election of United States Senators: ““Snc. 4. The times, places, and manner of holding elections for Senators and Represent- S. Doc. 11——16 242 SENATE ELECTION CASES. atives shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”’ ‘ And the clause under which the committee are acting as to the qualification of the gentleman is as follows: ‘“‘Sgc. 5. Each House shall be the judge of the elections, returns, and qualifications of its own members.’?> * * * : 3 STATE oF Iow4, to wit: The general assembly of this State, on the sixth day of January, one thousand eight hundred and fifty-five, having, in pursuance of the Constitution of the United States of America, chosen James Harlan a Senator to represent this State in the Senate of the United States, I, James W. Grimes, governor of the State of Iowa, do by these presents certify the same to the Senate of the United States. Given under my hand and the great seal of the State of Iowa, this twentieth day of January, one thousand eight hundred and fifty-five. : [L. s.]J JAMES W. GRIMES. By the governor: GEORGE W. McCLEARY, Secretary of State. The foregoing statement of facts and recital of clauses of laws and the Constitution present all the questions involved in the controversy growing out of the contested elec- tion under consideration. From the view which a majority of the committee have taken of these questions, they have come to the conclusion that the sitting member (Mr. Har- lan) has not been duly elected a Senator of the United States by the legislature of Iowa. Kesolved, That the seat of the aforesaid gentleman be declared vacant. A. P. BUTLER, Chairman. TUESDAY, January 6, 1857. The Senate proceeded to consider the resolution reported by the Committee on the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of Iowa; and, On motion by Mr. Bayard that the further consideration of the resolution be post- poned until half-past 22 o’clock to-morrow, it was determined in the negative. After debate, An amendment being proposed by Mr. Toombs, On motion by Mr. Weller, Ordered, That the further consideration of the resolution be postponed until to-mor-. row. [The debate is found on pages 238-247 of the Congressional Globe referred to in the head-note. ] WEDNESDAY, January 7, 1857. The Senate resumed the consideration of the resolution reported from the Committee on the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of lowa; and, After debate and the consideration of executive business, the Senate adjourned. [The debate is continued on pages 248-257 of the Congressional Globe referred to in the head-note. ] ° FRIDAY, January 9, 1857. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of Iowa; and, After debate, On motion by Mr. Mallory, the Senate adjourned. [The debate is continued on pages 260-270 of the Congressional Globe referred to in the head-note. ] MonpDay, January 12, 1857. The Senate resumed the consideration of the resolution reported by the Committee ou the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of Iowa. On motion by Mr. Toombs to amend the resolution by striking out all after the word “resolved ’' and inserting: ‘‘That James Harlan is entitled to his seat as a Senator trom Iowa,” It was determined in the negative—yeas 18, nays 27. JAMES HARLAN. 248 On motion by Mr. Butler, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Bell of New Hampshire, Bell of Ten- nessee, Brown, Collamer, Durkee, Fessenden, Fish, Foot, Foster, Hale, Houston, Pugh, Seward, Slidell, Toombs, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, Biggs, Bigler, Butler, Cass, Clay, Comegys, Crittenden, Dodge, Evans, Fitzpatrick, Geyer, Hunter, Iverson, Jones of Iowa, Mallory, Mason, Pratt, Reid, Rusk, Sebastian, Stuart, Toucey, Weller, and Wright. On motion by Mr. Butler, the resolution was amended to read: ‘* Resolved, That the seat of the Hon. James Harlan be declared vacant.”’ On the question to agree to the resolution it was determined in the affirmative—yeas 28, nays 18. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Biggs, Big- ler, Butler, Cass, Clay, Comegys, Crittenden, Dodge, Evans, Fitzpatrick, Geyer, Hunter, Iverson, Jones of Iowa, Mallory, Mason, Pearce, Pratt, Reid, Rusk, Sebastian, Stuart, Toucey, Weller, and Wright. ; Those who voted in the negative are Messrs. Bell of New Hampshire, Bell of Ten- nessee, Brown, Collamer, Durkee, Fessenden, Fish, Foot, Foster, Hale, Houston, Pugh, Seward, Slidell, Toombs, Trumbull, Wade, and Wilson. [The debate is concluded on pages 287-299 of the Congressional Globe referred to in the head-note. J : 944 SENATE ELECTION CASES. [Thirty-fourth and Thirty-fifth Congresses. ] GRAHAM N. FITCH anp JESSE D. BRIGHT, LANE sanp McCARTY vs. FITCH anp BRIGHT, of Indiana. February 4, 1857,Graham N. Fitch was elected Senator by the legislature of Indiana for the term ending March 3,1861,and Jesse D. Bright for the term ending March 3,1863. February 9, 1857, Mr. Fitch’s credentials were presented,and at the same time a protest of members of the legislature against the legality of the election. After dehate on the prima facie right of Mr. Fitch to the seat, he was admitted, and his credentials and the protest were referred to the Committee on the Judi- ciary. The ground of the protest was that these Senators were “ not elected by the legislature of Indiana, but by a convocation of a portion of the members thereof, not authorized by any law of the State, by resolution adopted by the legislature, or by any provision of the Constitution of the United States.” It appears that there was no law in Indiana providing for the time, place, or man- ner of electing Senators. There was a clause in the State constitution making it the duty of the speaker of the house of representatives to open and publish the votes for governor and lieutenant- governor in the presence of both houses of the general assembly. January 12, 1857, the two houses met for this purpose, a majority of both houses being present. At the close of this business the pre- siding officer adjourned the convention (so called) until February 2. Meantime the senate passed a resolution protesting against this proceeding and disclaiming all connection with the so-called con- vention. A minority of the senate, but a majority of the members composing the two houses, at- tended the adjourned meeting, and after a subsequent adjournment elected Messrs. Fitch and Bright as Senators. February 26 and March 13,1857,the committee reported resolutions that Mr. Fitch and the persons protesting against his election be permitted to take testimony on disputed facts. December 17, 1857,the credentials of Mr. Bright, who had taken his seat March 4, were re- ferred, together with the credentials of Mr. Fitch, to the same committee. January 21,1858, the committee again reported a resolution that the sitting members and the persons protesting be_per- mitted to take testimony. January 25 the minority of the committee reported against the adoption of the resolution on the ground that the election was ‘‘ obviously illegal.’’ The resolution passed the Senate February 16,1858. May 24,1858, the committee reported the testimony and the resolution that the sitting members were entitled to their seats. The resolution was agreed to June 12, 1858. January 24, 1859, a memorial of the State of Indiana was presented representing that it was the wish of the State that Henry S. Lane and William Monroe McCarty be admitted to seatsin the Senate as the only legally chosen Senators. February 3, 1859, the Committee on the Judiciary, to whom were referred the memorial, reported that there was no vacancy in the Senate from the State of Indiana, and that the election of Messrs, Lane and McCarty was void; that the legislature of Indiana possessed no authority to revise the decision of the Senate of the United States on the right of Messrs Fitch and Bright to the seats, a decision which was final and made by an authority having exclusive jurisdiction, and asked to be excused from the further consideration of the subject. February 3, 1859, the minority reported that the former decision of the Senate was not necessarily final ; that under the circumstances the subject should be re-examined; and thatif the Senate should find that Messrs Lane and McCarty were legally elected, they should be admitted tothe seats. Feb- ruary 14, 1859, the Senate agreed to the reportof the committee and resolved that the decision of June 12, 1858, affirming the right of Messrs Fitch and Bright to their seats, ‘‘ was a final decision of all the premises then in controversy, and conclusive, as well upon the legislature of Indiana, andall persons claiming under its authority, as upon the Senators named in the resolution.” The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journals, 3d sess. 34th Cong., Ist sess. 85th Cong., and 2d sess. 35th Cong., together with certain of the reports made in the case. Special references to the debates found in the Congressional Globe of the 3d sess. of 84th Cong. and the 35th Cong., are inserted below, and special references to all the reports are given in foot- notes. [Third sessson of the Thirty-fourth Congress. ] Monpay, February 9, 1857. Mr. Bright presented the credentials of the Hon. Graham N. Fitch, elected a Senator by the legislature of Indiana, to serve in the Congress of the United States until the 4th day of March, 1861; which were read. Mr. Bright submitted the following resolution for consideration: ‘‘ Resolved, That the President do administer the oath required by the laws to Graham N. Fitch as a Senator from the State of Indiana.’’ Mr. Trumbull presented resolutions of the senate of the State of Indiana respecting the recent election of Senators by the legislature of that State, and a protest of mem- bers of the house of representatives of the State of Indiana against the legality of the election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in the Congress of the United States; which were read; and, After debate, On motion by Mr. Trumbull that the credentials, the resolution submitted by Mr. Bright, and the resolutions of the senate of Indiana, with the protest of members of the house of representatives of the general assembly of Indiana, presented by Mr. Trumbull, be referred to the Committee on the Judiciary, it was determined in the negative— yeas 12, nays 33. FITCH AND BRIGHT. 945 On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Collamer, Crittenden, Fessenden, Foot, Foster, Hale, Harlan, Nourse, Seward, Thompson of Kentucky, Wade, and Wilson. Those who voted in the negative are Messrs. Adams, Allen, Bayard, Bell of Tennessee, Biggs, Bigler, Bright, Brown, Butler, Cass, Clay, Dodge, Evans, Fitzpatrick, Geyer, Green, Hunter, James, Johnson, Jones of Iowa, Mallory, Mason, Pratt, Pugh, Reid, Rusk, Sebastian, Slidell, Stuart, Toombs, Toucey, Weller, and Yulee. The Senate proceeded, by unanimous consent, to consider the resolution submitted by Mr. Bright, and the resolution was agreed to; and The oath prescribed by law was administered to Mr. Fitch, and he took his seat in the Senate. * * * * * * * On motion by Mr. Rusk that the credentials of the Hon. Graham N. Fitch, the reso- lutions of the senate of Indiana, and the protest of members of the house of representa- tives of Indiana respecting the recent election of Senators by the legislature of that State, be referred to the Committee on the Judiciary, On motion by Mr. Stuart, the Senate adjourned. [The debate is found on pages 193-210 of the Appendix to the Congressional Globe, 3d a 34th Cong., 1856-’57. It is largely on the prima facie right of Mr. Fitch to the seat. TUESDAY, February 10, 1857. The Senate resumed the consideration of the motion of Mr. Rusk to refer the creden- tials of the Hon. Graham N. Fitch, with the resolutions of the senate of Indiana and the protest of members of the house of representatives of that State in relation to the recent election of Senators by the legislature of Indiana, to the Committee on the Judi- ciary; and the motion was agreed to. [The debate is found on pages 210-215 of the Appendix to the Congressional Globe, 3d sess., 34th Cong., 1856-’57. It is mainly on the question whether the credentials should be referred to the Committee on the Judiciary or to a select committee. ] THURSDAY, February 12, 1857. Mr. Trumbull presented a protest, signed by members of the house of representatives of Indiana, against the legality of the election by the legislature of that State of Jesse D. Bright and Graham N. Fitch as Senators in the Congress of the United States; which was referred to the Committee on the Judiciary. Fripay, February 20, 1857. Mr. Trumbull presented copies of the proceedings of the legislature of Indiana, and other papers, in relation to the recent election of Senators to represent that State in the Congress of the United States; which were referred to the Committee on the Judiciary. THURSDAY, February 26, 1857. Mr. Trumbull presented a petition of senators and representatives of the legislature of Indiana, protesting against the election of Graham N. Fitch as a Senator to represent that State in the Congress of the United States; which was referred to the Committee on the Judiciary. : Mr. Toombs, from the Committee on the Judiciary, to whom were referrea the cre- dentials of the Hon. Graham N. Fitch as a Senator in Congress from the State of Indi- ana, the proceedings of the senate of Indiana, and the protest of members of the house of representatives of the said State against the election of the Hon. Graham N. Fitch, submitted a report (No. 427), accompanied by the following resolution: ‘Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member and all persons protesting against his election be permitted to take testimony on the allegations of the protestants and the sitting member, touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indi- anapolis.’’ * TA short debate as to whether the resolution is a privileged question or not is found on pages 907, 908 of the Congressional Globe, 3d sess. 34th Cong., 1856-57. ] * This report is found in Senate Reports, 3d sess. 84th Cong., eepon No. 427. It is not printed here, as it is qubstantially the same as the report made March 18, 1857, on the same subject, which is printed. 246 SENATE ELECTION CASES. Monpay, March 2, 1857. The Senate proceeded to consider the resolution reported by the Committee on the Judiciary on the credentials of the Hon. Graham N. Fitch, a Senator from the State of Indiana; and After debate, On motion by Mr. Weller that it lie on the table, it was determined in the affirmative— yeas 28, nays 23. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Adams, Allen, Bayard, Benjamin, Biggs, Brown, Butler, Clay, Crittenden, Douglas, Fitzpatrick, Gwin, Hunter, Iverson, James, Johnson, Mason, Pearce, Pratt, Pugh, Reid, Rusk, Sebastian, Slidell, Stuart, Toombs, Toucey, and Weller. Those who voted in the negative are Messrs. Bell of New Hampshire, Bright, Brodhead, Cass, Collamer, Dodge, Durkee, Fessenden, Fish, Foot, Foster, Hale, Harlan, Jones of lowa, Jones of Tennessee, Nourse, Seward, Sumner, Thomson of New Jersey, Trum- bull, Wade, Wilson, and Wright. So it was Ordered, That the resolution lie on the table. : [A debate on the adoption of the resolution is found on pages 1034-1040 of the Con- gressional Globe, 3d sess. 34th Cong., 1856-57. ] MBE. BRIGHT’S CREDENTIALS. Mr. Cass presented the credentials of the Hon. Jesse D. Bright, elected a Senator by the legislature of the State of Indiana, to serve as such until the 4th day of March, A. D. 1863; which were read. (Special session of Senate, March, 1857. ] WEDNESDAY, March 4, 1857. The credentials of Mr. Bright having been heretofore presented to the Senate, the oath prescribed by law was administered to him by the President pro tempore, and he took his seat in the Senate. Monpbay, March 9, 1857. On motion by Mr. Trumbull, Ordered, That the papers on file relating to the election of the Hon. Graham N. Fitch by the legislature of Indiana be referred to the Comniittee on the Judiciary. [A brief debate took place, which is found on pages 385, 386 of the Appendix to the Congressional Globe, 3d sess. 34th Cong., 1856-’57. | FRIDAY, March 13, 1857. Mr. Toombs, from the Committee on the Judiciary, to whom were referred the papers relating to the election of the Hon. Graham N. Fitch, by the legislature of the State of Indiana, as a Senator in the Congress of the United States, submitted a report (No. 2), accompanied by the following resolution: “* Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member and all persons protesting against his election, or any of them, by themselves or their agents or attorneys, be permitted to take testimony on the allegations of the pro- testants and the sitting member touching all matters of tact therein contained, before any judge of the district court of the United States, or any judge of the supreme or cir- cuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indianapolis.”’ The Senate proceeded, by unanimous consent, to reconsider the said resolution; and, A motion having been made by Mr. Trumbull to amend the resolution, After debate, On motion by Mr. Mason, Ordered, That it lie on the table On motion by Mr. Toombs, Ordered, That the repurt and all the accompanying papers be printed. [The debate which took place this day on the adoption of the resolution is found on pages 392-396 of the Appendix to the Congressional Globe, 3d sess. , 34th Cong., 1856-’57. ] FITCH AND BRIGHT. 247 REPORT OF COMMITTEE. * _ [The committee consisted of Messrs. Butler (chairman), Bayard, Toombs, Pugh, Ben- jamin, Collamer, and Trumbull. ] The committee have had the same under consideration, and find that important mat- ters of fact alleged by the protestants in connection with the manner in which the election of the sitting member was had are denied by him, and that it becomes necessary, in the opinion of the committee, to take the testimony of persons residing in the State of Indi- ana, for the better ascertainment of these disputed facts. For instance, it is, among other things, alleged by a portion of the protestants that ‘‘ there was no joint convention of the two houses of said general assembly on said day’’ on which the election in dispute took place, and that a minority only of the legally sitting senators of Indiana participated in said election, which statements are denied by the sitting member; and he affirms, on the contrary, that ‘‘he was elected to said office by a majority of all the members com- posing the legislature of the State, they being then and for that purpose assembled in joint convention,’’ and that he was elected whilst in such joint convention by a majority of the legally qualified members of the senate of the State and of the legally qualified members of the house of representatives, respectively. For the proper ascertainment of these contested facts, and the better elucidation of the matters in dispute contained in the several protests herewith submitted, and the reply of the Hon. Graham N. Fitch, your committee recommend that leave be given to take testimony in the city of” Indianapolis and State of Indiana, and recommend the adoption of the following reso- lution: Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member, and all persons protesting against his election, or any of them, by themselves, or their agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting member touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or cir- cuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indianapolis. . To the Senate of the United States: The undersigned, duly elected and qualjfied members of the house of representatives of the general assembly of the State of Indiana, hereby protest against the pretended election of Jesse D. Bright and Graham N. Fitch, on the 4th day of February, A. D. 1857, as Senators of the State of Indiana in the Congress of the United States, the former for the six years from the 4th day of March next, and the latter for the six years from the 4th day of March, 1855, by a portion of the senators and representatives of said general assembly, for the following reasons: First. There was no agreement of the two houses of the general assembly, by resolu- tions or otherwise, to proceed to the appointment or election of Senators in Congress on said day, or any other day of the present session of the general assembly. Second. There was no joint convention of the two houses of the said general assembly on said day; nor was there any law of the State authorizing a joint convention on that or any other day for the appointment or election of United States Senators; nor was there any resolution, or joint resolution, approved or adopted by the two houses of the said general assembly, or either of them, authorizing such joint convention. Third. Said pretended joint convention was a mere assembly of a portion of the senators and representatives of the said general assembly, not in a legislative capacity, but as individuals, without any authority of law, without precedent in the history of legis- lature of the State, and having no legislative sanction; and said senators and represent- atives, when so convened, had no more constitutional right to appoint or elect Senators than any equal number of private citizens of the State. Fourth. There was not a constitutional quorum of either house of the general assembly present in said pretended joint convention, there being only twenty-three senators and sixty-one representatives, when, by the eleventh section of the fourth article of the con- stitution of this State, it requires two-thirds of each house to constitute a quorum to do business, and when, by the law of the State, the number of senators is fixed at fifty, and the number of representatives at one hundred, in said general assembly. Fifth. Because the undersigned, as legally elected and qualified representatives in said general assembly, have been deprived of their constitutional right to assist in the legal election of the Senators in the Congress of the United States by said illegal, revolution- ary, and unauthorized election. *This report, which was the second one made on the credentials of Mr. Fitch, is found in Senate Reports, 3d sess. 34th Cong., Report No.2. Pages5-39 of the reportare here omitted. They contain certain proceedings of the legislature and additional protests of members thereof. 248 SENATE ELECTION CASES. Sixth. Because the legislature of Indiana, as such legislature, either by separate action of the two houses, or otherwise, as such legislature, had no part or voice in such pretended elections, and the same were in direct violation of the third section of the first gntiele of the Constitution of the United States and the fourth section of the said article. Seventh. Because said pretended elections are wholly void. Eighth. Because if said elections are held valid, such decision will destroy the legal existence of the general assembly of this State, and install in its place any mob which may see proper to take forcible possession of the house as a joint convention of the gen- eral assembly, without the concurrence of either body, the sanction of the Constitution, or authority of law. For these and other reasons which might be named, the undersigned protest against the validity of said pretended elections, and ask that the Senate of the United States may declare them null and void. Given under our hands this 4th day of February, at Indianapolis, A. D. 1857. S. P. Williams. Wn. C. Jefferis. D. C. Branham. Geo. Crawford. 8. B. Ward. J. W. Hutchings. James M. Austin. J. D. Conner. Robert Boyd. J. N. Gordon. Wm. Grose. John M. La Rue, Tippecanoe C. M. Stone. A. B. Price. County. H. W. Sherman. Jobn Davis. Marcus C. Smith. G. D. Wagner. N. H. Ballinger. Elijah Vansandt. Thomas J. Neal. Geo. C. Merrifield. Smith Vawter. G. K. Steele. Silas Colgrove. Wm. M. Clapp. D. Batterton. Geo. Moon. R. N. Todd. Alex. H. Conner. William Hawkins. Milton Mercer. M. P. Evans. John Whitcomb. The undersigned, a Senator of the United States from the State of Indiana, and now acting as a duly qualified Senator of the United States, submits to the honorable the Judiciary Committee of the body to whom the validity of his election has been referred, the following, as points upon which he believes and is advised that his own rights and the rights of his State require that evidence be taken and be before the committee in order to enable them to decide understandingly and justly in the premises: First. That he was elected to said office by a majority of all the members composing the legislature of the State, they being then and for that purpose assembled in joint convention. Second. That he was elected, whilst in such joint convention, by a majority of the legally qualified members of the senate of the State and of the legally qualified mem- bers of the house of representatives, respectively. Third. That in order to ascertain the facts stated in the preceding point, he will be able, by evidence, to show that three of the persons who are contesting his election were not then, and are not now, legally members of the said State senate, and had no right whatever, under the laws and constitution of the State, to be considered, or, in any par- ticular, to act as members of that body; and that this was at the time, and still is, well known to the other contestants. Fourth. That in the organization of the State senate, according to the constitu- tion, laws, and usage of the State, the lieutenant-governor presides and superintends the admission of the members, and the taking the required oaths of office. That upon this occasion, in violation of such constitution, laws, and usage, the said three members, who were without the expressly required credentials of election, the certificate of the proper and only returning officer, and whose seats were also known to be contested, and on grounds of fraud, also known to be true, were, by a presiding officer, chosen for the pur- pose by the members of the senate, designated as Republicans, contrary to all law, and by naked wrong, directed, notwithstanding, to be sworn in, and for the clear purpose, illegal and fraudulent in fact, of defeating an election of Senators of the United States. Fifth. That the said convention by whom, as hereinbefore alleged, the undersigned was elected a Senator of the United States, was assembled in accordance with an express provision of the constitution of the State, and that, in accordance with the long and uni- form usage of the State in that particular, the same was adjourned from day to day by the proper presiding officer thereof, and vested with the authority so to adjourn, and that each adjournment was made without objection by a majority of the senate, even considering the three persons aforesaid to have been members of that body being resent. F Sixth. That there is not now, in said State, as the undersigned is advised, any Jaw for ‘ FITCH AND BRIGHT. 249 the regulation of the election of Senators of the United States, or in any way providing for the same; and that according to the best professional and judicial opinions in the State, the election is to be made by the convention of the legislature assembled under the constitution of the State, to count the votes and decide upon the election of gov- ernor and lientenant-governor, as a power necessarily existing in the legislature, and from the obligations of the State to elect Senators. Seventh. That before the adoption of the present State constitution there was a law regulating such election, and that although the same was no longer in force, the said convention did, as far as it was possible, conduct the present election according to the provisions thereof. The undersigned, in conclusion, submits what, indeed, must be obvious to the com- mittee, that as the witnesses and proofs to the matters above stated are only to be had in the State of Indiana, and can only properly be obtained by careful examination, and under the superintendence of himself, that it cannot be in his power to procure it at this or the approaching extra session of the United States Senate, even were he to abandon his duty as a Senator, which he has no right to do, and proceed at once to the place where the testimony is to be had. He further submits, therefore, that the com- mittee will so dispose of the matter now as will enable him and the contestants ata future period to present the entire case fairly and fully before them. GRAHAM N. FITCH. FEBRUARY 25, 1857. True copy. Attest: THOS. P. MORGAN, Clerk to the Committee. SATURDAY, March 14, 1857. [A short debate in reference to correcting a mistake in the Senate Journal took place. The Journal showed that on Monday, March 9, 1857, Mr. Bright’s credentials were referred to the Committee on the Judiciary. This was an error, and the Journal was corrected so that it read for that day as given above. The debate is found on pages 396, 397 of the Appendix to the Congressional Globe, 3d sess. 34th Cong., 1856-’57.] [First session of the Thirty-fifth Congress. ] THURSDAY, December 17, 1857. Mr. Trumbull submitted the following resolution; which was considered by unani- mous consent, and agreed to: “ Resolved, That the credentials of the sitting members of this body from the State of Indiana, together with all the papers on file protesting against their rights to seats, or relating to their election as Senators in Congress by the legislature of Indiana, be referred to the Committee on the Judiciary.” , THURSDAY, January 21, 1858. Mr. Bayard, from the Committee on the Judiciary, to whom were referred, by a reso- lution of the Senate of the 17th of December, the credentials of the sitting members of this body from the State of Indiana, with all the papers on file protesting against their rights to seats, or relating to their election as Senators in Congress by the legislature of Indiana, submitted a report (No. 19), accompanied by the following resolution. [Reso- lution found at end of report. ] 7 REPORT OF COMMITTEE.* [The committee consisted of Messrs. Bayard (chairman), Green, Toombs, Pugh, Ben- jamin, Collamer, and Trumbull.] The Committee on the Judiciary, to whom was referred the protest against the elec- tion of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright as Senators in Congress from the State of Indiana, report: The committee find that the protests against the election of the Hon. Graham N. Fitch as a Senator in Congress from the State of Indiana were referred to the Committee on the Judiciary on the 10th of February, 1857, and on the 26th of the same month a resolution was reported by the committee authorizing testimony to be taken both by * This report, taken from Senate Reports, Ist sess. 35th Cong., Report No.19, is the third report made by the Committee on the Judie: on the credentials of Mr. Fitch and the first one on the eredentials of Mr. Bright. 250 SENATE ELECTION CASES. the protestants and the sitting member. The resolution not being acted upon by the Senate at that session, from the pressure of other business, the protests were again re- ferred to the committee on the 9th of March last, at the special session of the Senate, and the same resolution, with a slight amendment, reported by the committee on the 13th of the same month, which being taken up on the day it was reported, a debate en- sued upon an amendment offered by the Hon. Mr. Trumbull, of Illinois, and the Senate having on the previous day resolved to adjourn sine die on the 14th of March, at 1 o’clock, the resolution reported by the committee was ordered to lie on the table. The protests against the election of the Hon. Jesse D. Bright, as well as against the election of the Hon. Graham N. Fitch, having been referred at the present session, and the objections of the protestants and allegations of the sitting members being identical in both cases, the committee have adopted and recommend the passage of the resolution reported to the Senate by the committee at the special session on the 13th day of March last, with such variation as is requisite to make it apply to the cases of both the sitting members, as follows: “‘Resolwed, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the State of Indiana, the sitting members, and all persons protesting against their election, or any of them, by themselves, or their agents or attorneys, be permitted to take testi- mony on the allegations of the protestants and the sitting members touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indianapolis.”’ Monpay, January 25, 1858. Mr. Trumbull submitted the views of the minority of the Committee on the Judiciary, to whom were referred the credentials of the Senators from Indiana, and other papers on file relating to their election as Senators in Congress; which were ordered to be printed. VIEWS OF THE MINORITY.* The Committee onthe Judiciary, to whom were referred the protests against the right of Graham N. Fitch and Jesse D. Bright to seats as Senators from the State of Indiana, report: The legislature of Indiana called the general assembly, is composed of a senate of fifty members and a house of representatives of one hundred members, and two-thirds ot each house is, by the constitution, required to constitute a quorum thereof. Each house is declared to be judge of the election and qualification of its members, and re- quired to keep a journal of its proceedings. No regulation exists by law in Indiana as to the manner in which members of the State senate are to be inducted into office. No law or regulation is there existing providing the time, place, or manner of electing United States Senators. It appears by the journal of the senate of Indiana that on the opening of the senate at the meeting of the legislature, January 8, 1857, forty-nine of the senators were present, and that all the newly elected members were duly sworn, took their seats, and continued thereafter to act with the other senators till the close of the session. The only absentee senator took his seat January 13, 1857. Protests were filed contesting the seats of three of the newly elected members, which were afterwards examined and - considered by the senate, and they were each found and declared to be entitled to seats, respectively, by majorities more or less numerous, all which is entered upon and appears by the journal of said senate. 3 The State constitution makes it the duty of the speaker of the house of representa- tives to open and publish the votes for governor and lieutenant-governor in the presence of both houses of the general assembly. No provision exists by the constitution making such meeting or presence of the two houses a convention, or providing any officers there for, or authorizing or empowering the same to transact any business whatever, except by joint vote forthwith to proceed to elect a governor or lieutenant-governor in case of a tie vote. Both houses being in session, the speaker notified them that he should proceed to open and publish the votes for governor and lieutenant-governor on Monday the 12th day of January, at 2.30 o’clock p. m., in the hall of the house. Shortly before the hour arrived the president of the senate announced that he would proceed immediately to the hall of the house of representatives; and thereupon, together with such senators as chose to go, being a minority of the whole number thereof, he repaired to the hall of the house of * From Senate Reports, Ist sess. 35th Cong , vol. 1, Report No, 19, part 2. FITCH AND BRIGHT. 251 representatives, and there, in their presence, and in the presence of the mempers of the house, the votes for governor and lieutenant-governor were duly counted and published by the speaker, and A. P. Willard, the then president of the senate, was declared duly elected governor and A. A. Hammon lieutenant-governor of said State. At the close of this business, a senator present, without any vote for that purpose, declared the meeting (by him then called a convention) adjourned to the 2d day of Feb- ruary, 1857, at 2 o’clock. The senate hearing of this proceeding, on the 29th day of January, 1857 as appears by its journal, passed a resolution protesting against the proceedings of said so-called convention, disclaiming all connection therewith or recognizance thereof, and protesting against any election of United States Senators or any other officer thereby. On the 2d of February, 1857, the president of the senate, with a minority of its members, again attended in the hall of the house, and without proceeding to any business, and without any vote, declared the meeting (by him called a convention) adjourned until the 4th day of February, 1857, at which time the president of the senate, with twenty-four of its members, went to the hall of the house of representatives, and there they, together with sixty-two members of the house, proceeded to elect two Senators of the United States, to wit, Graham N. Fitch, and Jesse D. Bright, they each receiving eighty-three votes, and no more, at their respective elections, twenty-three of which votes were by mem- bers of the senate. : Against these elections so made protests by twenty-seven members of the senate of Indiana and thirty-five members of the house of representatives of said State have been duly presented, alleging that, in the absence of any law, joint resolution, or regulation of any kind by the two houses composing the legislature of Indiana providing for hold- ing a joint convention, it is not competent for a minority of the members of the senate and a majority. but less than a quorum, of the members of the house of representatives of said State to assemble together and make an election of United States Senators. Of the facts as herein stated there is no dispute, as we understand. It is now alleged by the sitting Senators, respectively, as we understand the substance of their allegations, in contradiction of the senate journal, that the three State senators whose seats were contested were not legally elected and qualified; that they were with- -out the expressly required credentials, the certificate of the proper and only returning officer, and that they were, notwithstanding, directed to be sworn in by a presiding officer chosen for the purpose by the members of the senate designated as Republicans, for the clear purpose, illegal and fraudulent in fact, of defeating an election of Senators of the United States. Under these circumstances we object to the adoption of the resolution for the taking of testimony to sustain these allegations, because the said election of United States Sen- ators, so conducted, is obviously illegal and insufficient, and cannot be cured by any proof of these allegations; and we insist that the Senate should now proceed to a defini- tive decision of the question. . WEDNESDAY, February 3, 1858. [A short debate took place on the propriety of considering the report at that time. It is found on pages 543-545 of the Congressional Globe, part 1, Ist sess. 35th Cong. ] THURSDAY, February 4, 1858. The Senate proceeded to consider the resolution reported by the Committee on the Judiciary, to whom was referred the protest against the election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in Congress from the State of Indi- ana; and ‘An amendment being proposed by Mr. Trumbull, After debate, On motion by Mr. Bayard that the resolution lie on the table, it was determined in the affirmative—yeas 29, nays 18. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Biggs, Big- Jer, Broderick, Brown, Cameron, Clay, Davis, Douglas, Evans, Green, Gwin, Houston, Hunter, Iverson, Johnson of Tennessee, Jones, Kennedy, Mason, Polk, Pugh, Sebastian, Slidell, Stuart, Toombs, Wright, and Yulee. Those who voted in the negative are Messrs. Chandler, Collamer, Crittenden, Dixon, Doolittle, Durkee, Fessenden, Foot, Foster, Hale, Hamlin, Harlan, King, Seward, Sim- mons, Trumbull, Wade, and Wilson. So it was Ordered, That the resolution lie on the table. [A debate on the adoption of the resolution is found on pages 567-570 of the Congres- sional Globe, part 1, 1st sess. 35th Cong. ] ' 252 SENATE ELECTION CASES. Monpay, February 15, 1858. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, to whom were referred the credentials of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright, and the protest against their election as Senators in Congress from the State of Indiana; and The amendment proposed by Mr. Trumbull being under consideration, After debate, On motion by Mr. Hunter, Ordered, That the further consideration of the resolution be postponed until to-morrow at 1 o'clock. ‘ [The subject is debated on pages 698-710 of the Congressional Globe, part 1, 1st sess, 35th Cong. } TUESDAY, February 16, 1858. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary in the case of the contested election of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright; and On the question to agree to the following amendment, proposed by Mr. Trumbull: Strike out all after the word ‘‘resolved’’ and insert: ‘That the Senate will now proceed to a final determination of the right to seats in this body of Graham N. Fitch and Jesse D. Bright, claiming to have been elected Senators by the legislature of Indiana,’’ It was determined in the negative—yeas 16, nays 28. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, . Those who voted in the affirmative are Messrs. Chandler, Clark, Collamer, Dixon, Doolittle, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, Simmons, Sumner, Trumbull, and Wade. Those who voted in the negative are Messrs. Allen, Biggs, Bigler, Broderick, Brown, Cameron, Clay, Evans, Green, Gwin, Hammond, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, Stuart, Thompson of Kentucky, Thomson of New Jersey, Toombs, Wright, and Yulee. On motion by Mr. Seward to amend the resolution by adding thereto the following: “* Provided, That the proofs to be taken shall be limited to the swearing in of the members of the legislature of Indiana, the organization of the said legislature, and the proceedings thereof connected with the election of the sitting members for said State in the Senate of the United States, and shall be returned to the Senate of the United States within sixty days from the passage of this resolution,’’ A division was called for by Mr. Hale; and, the question being taken on the first clause, relating to the proofs to be taken, it was determined in the negative—yeas 19, nays 25. On motion by Mr. Mallory, the yeas and nays being desired by one-fifth of the Senators resent, e Those who voted in the affirmative are Messrs. Broderick, Cameron, Chandler, Clark, Collamer, Dixon, Doolittle, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, Simmons, Stuart, Sumner, Trumbull, and Wade. Those who voted in the negative are Messrs. Allen, Biggs, Bigler, Brown, Clay, Evans, Green, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, Thompson of Kentucky, Toombs, and Yulee. : On the question to agree to the second clause, as follows: ‘‘And shall be returned to the Senate of the United States within sixty days from the passage of this resolution,’’ A motion was made by Mr. Pugh to amend the same by striking out the word “‘sixty”’ and inserting ‘‘ninety;’’ and it was determined in the affirmative—yeas 27, nays 18. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators resent, r Those who voted in the affirmative are Messrs. Allen, Biggs, Bigler, Broderick, Brown, Clay, Evans, Green, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, Thomson of New Jersey, Toombs, Wright, and Yulee. Those who voted in the negative are Messrs. Chandler, Clark, Collamer, Dixon, Doo- little, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, Simmons, Stuart, Sumner, Thompson of Kentucky, Trumbull, and Wade. On motion by Mr. Toombs to amend the amendment by adding thereto— ‘And provided, That no testimony shall be taken under this resolution in relation to the qualification, election, or return of any member of the Indiana legislature,’’ It was determined in the affirmative. ' FITCH AND BRIGHT. 253 The amendment as amended was then agreed to. On motion by Mr. Wilson further to amend the resolution by striking out the words “any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana’ and inserting: & “The Hon. Oliver H. Smith, the Hon. John Pettit, and the Hon. John D. Defrees, who are hereby appointed commissioners for that purpose,”’ It was determined in the negative. On motion by Mr. Fessenden to amend the resolution by striking out the words ‘‘the supreme or circuit courts’? and inserting ‘‘any court of record,” it was determined in the negative. The resolution as amended was then agreed to, as follows: ‘* Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the State of Indiana, the sitting members, and all persons protesting against their election, or any of them, by themselves or their agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting members touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indi- anapolis: Provided, That the proofs to be taken shall be returned to the Senate of the United States within ninety days from the passage of this resolution: And provided, That no testimony shall be taken under this resolution in relation to the qualification, election, or return of any member of the Indiana legislature.”’ cont debate is found on pages 720-724 of the Congressional Globe, part 1, 1st sess. 35th ng. Monpay, April 19, 1858. Mr. Trumbull submitted the following motion; which was considered by unanimous consent, and agreed to: Ordered, That the Secretary of the Senate furnish, on application by any individual desiring to possess the same, an authenticated copy of the resolution agreed to on the 16th ef February, 1858, authorizing testimony to be taken in reference to the election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators from the State of Indiana. [Brief remarks on the resolution are found on pages 1658, 1659 of the Congressional Globe, part 2, Ist sess. 35th Cong. ] SATURDAY, May 15, 1858. The Vice-President laid before the Senate testimony in the case of the contested elec- tion of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators of the United States from the State of Indiana, which was referred to the Committee on the Judiciary. TUESDAY, May 18, 1858. ” Mr. Bright presented affidavits of C. K. Drew, R. D. Slater, and W. J. Cullen, evidence in the case of the contested election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators from the State of Indiana, which were referred to the Committee on the Judiciary. Monpay, May 24, 1858. Mr. Pugh, from the Committee on the Judiciary, to whom were referred the creden- tials of Graham N. Fitch and Jesse D. Bright, Senators from the State of Indiana, to- gether with the documents and testimony relative to that subject, submitted a report (No. 275), accompanied by the following resolution. [For resolution see report. ] REPORT OF COMMITTEE.* [The committee consisted of Messrs. Bayard (chairman), Sebastian, Pugh, Benjamin, Green, Collamer, and Trumbull. ] . The Committee on the Judiciary, to whom were referred the credentials of Graham N. Fitch and Jesse D. Bright, Senators from the State of Indiana, together with the doc- uments and testimony relative to that subject, have had the same under consideration, and report, by resolution, as follows: : Resolved, That Graham N. Fitch and Jesse D. Bright, Senators returned and admitted * dm accompanying this report may be found in Senate Reports, Ist sess. 35th Cong. Soh er Hepock No’: 275. This re the fourth report made by the Committee on the Judiolary on t! 3 credential of Mr. Fitch, and the second one to include the credentials of Mr. Bright. 254 SENATE ELECTION CASES. from the State of Indiana, are entitled to the seats which they now hold in the Senate as such Senators aforesaid, the former until the 4th of March, 1861, and the latter until the 4th of March, 1863, according to the tenor of their respective credentials. - [Some remarks by members of the committee, asking for an opportunity to examine the report before it is printed, are found on pages 2353, 2354 of the Congressional Globe, part 3, Ist sess. 35th Cong. ] Monpay, June 7, 1858. Mr. Pugh presented an affidavit of John W. Blake, relative to the election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in Congress from the State of Indiana. Ordered, That it lie on the table. THURSDAY, June 10, 1858. On motion by Mr. Bright, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. Graham N. Fitch, Senators from the State of Indiana, entitled to their seats in the Sen- ate; and, On motion by Mr. Bright, Ordered, That the further consideration thereof be postponed to, and made the special order of the day for, to-morrow at 12 o’clock. [A brief debate on the postponement of the consideration of the resolution is found on page 2876 of the Congressional Globe, part 3, 1st sess. 35th Cong. ] FRIDAY, June 11, 1858. The Senate resumed the consideration of the resolution reported from the Committee on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. Graham N. Fitch, ee in Congress from the State of Indiana, entitled to their seats in the Senate; and, i An amendment being proposed by Mr. Hamlin, On motion by Mr. Trumbull to amend the proposed amendment, After debate, Ordered, That the further consideration thereof be postponed to, and made the special order of the day for, to-morrow at 12 o’clock. [An extended debate on the adoption of the resolution is found on pages 2923-2949 of the Congressional Globe, part 3, 1st sess. 35th Cong. ] SATURDAY, June 12, 1858. The Senate resumed the consideration of the resolution reported from the Committee on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. Graham N. Fitch, Senators in Congress from the State of Indiana, entitled to their seats in the Senate. A motion was made by Mr. Hamlin to amend the resolution by striking out all after the word ‘‘resolved,’’ and inserting: “That the case of Jesse D. Bright and Graham N. Fitch be recommitted to the Com- mittee on the Judiciary, with instructions to report specially the grounds on which the resolution is based declaring said Bright and Fitch elected.” On motion by Mr. Trumbull to amend the proposed amendment by striking out all after the word ‘‘that’’ and inserting ‘‘in the opinion of the Senate, no election of a mem- ber of this body made by the legislature of a State consisting of two branches is valid, when made in a meeting of individual members of both, unless such meeting for that purpose was prescribed by law, or had been previously agreed to by each house acting separately in its organized capacity, or is participated in by a majority of the members of each house, or is subsequently ratified in some form by each house in its organized capacity,’’ it was determined in the negative—yeas 17, nays 26. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Broderick, Chandler, Clark, Dixon, Doolittle, Durkee, Fessenden, Foot, Foster, Hamlin, Harlan, King, Seward, Simmons, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Brown, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Hayne, Iverson, Jones, Mal- lory, Mason, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Thomson of New Jersey, Toombs, Wright, and Yulee. On the question to agree to the amendment proposed by Mr. Hamlin, it was deter- mined in the negative—yeas 16, nays 34. On motion by Mr. Fessenden, the yeas and nays being desired by one-fifth of the Sen- ators present, LANE AND MCCARTY VS. FITCH AND BRIGHT. 255 Those who voted in the affirmative are Messrs. Chandler, Clark, Dixon, Doolittle, Durkee, Fessenden, Foot, Foster, Hamlin, Harlan, King, Seward, Simmons, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Broderick, Brown, Clay, Clingman, Collamer, Fitzpatrick, Green, Gwin, Hammond, Hayne, Hous- ton, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Mason, Pearce, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Thompson of Ken- tucky, Thomson of New Jersey, Toombs, Wright, and Yulee. So the amendment was not agreed to. On motion by Mr. Trumbull to amend the resolution by inserting after the word ‘*are’? and before the word ‘‘entitled’’ the word ‘‘not,’’ it was determined in the neg- ative—yeas 23, nays 30. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Broderick, Chandler, Clark, Collamer, Dixon, Doolittle, Donglas, Durkee, Fessenden, Foot, Foster, Hale, Hamlin, Harlan, Houston, King, Mason, Pearce, Seward, Simmons, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Brown, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Hayne, Hunter, Iverson, John- son of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Polk, Pugh, Reid, Rice, Sebastian, Sildell, Thompson of Kentucky, Thomson of New Jersey, Toombs, Wright, and Yulee. No further amendment being proposed, the resolution reported by the Committee on the Judiciary was then agreed to, as follows: ‘* Resolved, That Graham N. ¥itch and Jesse D. Bright, Senators returned and admitted from the State of Indiana, are entitled to the seats which they now hold in the Senate as such Senators aforesaid, the former until the 4th of March, 1861, and the latter until the 4th of March, 1863, according to the tenor of their respective credentials.’’ [No debate took place this day. ] [Second session of the Thirty-fifth Congress. ] Credentials of Henry S. Lane and William Monroe McCarty. MonDAy, January 24, 1859. The Vice-President presented a memorial of the State of Indiana, by its senators and representatives in general convention assembled, representing that it is the wish and de- sire of the State that the Hon. Henry S. Lane and the Hon. William Monroe McCarty be admitted to seats in the Senate of the United States as the only legally elected and constitutionally chosen Senators of the State of Indiana; which was read. On motion by Mr. Trumbull, Ordered, That it be referred to the Committee on the Judiciary and be printed. [The memorial is printed on pages 534, 535 of the Congressional Globe, part 1, 2d sess. 35th Cong. } * aa * * * * * Mr. Seward submitted the following resolution for consideration: “Resolved, That the Hon. Henry 8. Lane and the Hon. William M. McCarty, who claim to have been elected Senators from the State of Indiana, be entitled to the privi- leges of admission on the floor of the Senate until their claims shall have been decided.” WEDNESDAY, January 26, 1859. On motion by Mr. Seward, the Senate proceeded to consider the resolution, submitted by him the 24th instant, to admit the Hon. Henry 8. Lane and the Hon. W. M. McCarty, claiming to have been elected Senators by the legislature of Indiana, on the floor of the Senate; and After debate, . . : : On motion by Mr. Iverson that the resolution lie on the table, it was determined in the affirmative—yeas 31, nays 22. ; On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators resent . E Those who voted in the affirmative are Messrs. Allen, Bates, Bayard, Benjamin, Big- ler, Brown, Chesnut, Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Tennessee, Kennedy, Mailory, Mason, Polk, Pugh, Reid, Rice, Sebastian, Shields, Slidell, Stuart, Thomson of New Jersey, Toombs, and Ward. Those who voted in the negative are Messrs. Bell, Broderick, Cameron, Chandler, Clark, Collamer, Crittenden, Dixon, Doolittle, Durkee, Fessenden, Foot, Foster, Hale, Hamlin, Harlan, King, Seward, Simmons, Trumbull Wade, and Wilson. So it was ; Ordered, That the resolution lie on the table. 256 SENATE EELCTION CASES. _ [A debate on the adoption of the resolution is found on pages 599-602 of the Congres. sional Globe, part 1, 2d sess, 35th Cong. ] FRIDAY, January 28, 1858. Mr. Douglas presented a certified copy of that portion of the journal of the senate of the State of Indiana of the 22d of December, 1858, also a certified copy of that portion of the journal of the house of representatives of the State of Indiana of the 22d of De- cember, 1858, relating to the election of United States Senators; which were referred to the Committee on the Judiciary. THURSDAY, February 3, 1859. Mr. Bayard, from the Committee on the Judiciary, to whom was referred a memorial of the State of Indiana, by her senators and representatives in general convention assem- bled, requesting that the Hon. Henry §. Lane and the Hon. William Monroe McCarty be admitted to seats in the Senate of the United States as the only legally elected and constitutionally chosen Senators of that State; also certified copies of the proceedings of the senate and house of representatives of the State of Indiana of the 22d of December, 1858, relative to the election of United States Senators, submitted a report, asking that the committee be discharged from the further consideration of the memorial of the legis- lature of Indiana. On motion by Mr. Bayard, Ordered, That the report lie on the table and be printed. Mr. Collamer submitted the views of the minority of the Committee on the Judiciary on the subject; which were ordered to be printed. * * * * * * *. Mr. Seward submitted the following resolution for consideration: “‘Resolwed, That Henry S. Lane and William M. McCarty have leave to occupy seats on the floor of the Senate pending the discussion of the report of the Committee on the Judiciary on the memorial of the legislature of Indiana declaring them her duly elected Senators, and that they have leave to speak to the merits of their right to seats and the report of the committee.’’ REPORT OF COMMITTEE.* [The committee consisted of Messrs. Bayard (chairman), Pugh, Benjamin, Green, Clingman, Collamer, and Trumbull. ] Mr. Bayard submitted the following report: The Committee on the Judiciary, to whom was referred the memorial of the State of Indiana, by her representatives and senators in general convention assembled, repre- senting that it is her wish and desire that the Hon. Henry S. Lane and the Hon. Will- iam Monroe McCarty be admitted to seats in the Senate of the United States as the only legally elected and constitutionally chosen Senators of that State, submit the fol- lowing report: That the Hon. Graham N. Fitch, on the 9th day of February, 1857, was admitted by the Senate on the customary prima facie evidence of his election as a Senator from the State of Indiana, to serve as such until the 4th day of March, A. D. 1861; was qualified and took his seat as a Senator. On the same day resolutions of the senate of Indiana adverse to the legality of his election and a protest of certain members of the house of representatives of the same State against the validity of the election were presented to the Senate; and the credentials of Mr. Fitch, the resolutions of the senate of Indiana, and the protest of the members of the house of representatives against the validity of the election were referred to the Committee on the Judiciary. The committee on the 26th of February reported a resolution authorizing testimony to be taken both by the sitting members and the protestants in relation to all matters of fact contained in their respective allegations. This report was ordered to lie upon the table on the 2d of March, 1857, and no turther action was had upon the subject during that session. At the called session of the Senate the papers on file relating to the election of Mr. Fitch, were on the 9th of March 1857, on motion of Mr. Trumbull referred to the Committee on the Judiciary, and on the 14th of March the committee reported a resolution authorizing testimony to be taken—slightly variant from the reso- lution reported at the preceding session. The resolution was on the same day ordered to lie on the table. The credentials of the Hon. Jesse D. Bright, elected a Senator from the State of Indiana, to serve as such until the 4th day of March, 1863, were presented to the Senate and read on the 2d day of March, 1857; and at the called session of the Senate, on the 4th day of March. A. D. 1857, Mr. Bright was qualified and took his * Annexed to the report, which is taken from Senate Pepe as sess. 35th Cong., Report No. 368, are the reports made January 21 and 25, 1858, which are printed above, LANE AND M°CARTY VS. FITCH AND BRIGHT. 257 seat. At the first session of the present Congress, on the 17th of December, 1858, on motion of Mr. Trumbull, the credentials of the sitting members from Indiana, together with all papers on file protesting against their right to seats, or relating to their election as Senators in Congress by the legislature of Indiana, were referred by the Senate to the Committee on the Judiciary. On the 21st of January, 1858, the committee made a re- port, concluding with a resolution similar to the resolution which had previously been reported in relation to the case of Mr. Fitch, authorizing testimony to be taken; and on the 25th of the same month Mr. Trumbull submitted the views of the minority of the committee. Both the report of the committee and the views of the minority were printed and are appended as part of this report, with a view to the illustration of the questions pre- sented to the Senate, upon which its decision was subsequently made. On the 16th of February, 1858, the consideration of the resolution reported by the committee was resumed, and, after the rejection of some proposed amendments and the adoption of others, the following resolution was passed by the Senate: “Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the State of Indiana, the sitting members and all persons protesting against their election, or any of them, by themselves or their agents or attorneys, be permitted to take testi- mony on the allegations of the protestants and the sitting members touching all mat- ters of fact therein contained before any judge of the district court of the United States or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ notice of the time and place of such proceeding in some public gazette printed at Indianapolis: Provided, That the proofs to be taken shall be returned to the Senate of the United States within ninety days from the passage of this resolution: And provided, That no testimony shall be taken under this resolution in relation to the qualification, election, or return of any member of the Indiana legislature.’’. Testimony was subsequently taken by the protestants, which was, together with cer- tain affidavits presented on behalf of the sitting members and documentary evidence referred to the Committee on the Judiciary, and on the 24th day of May, 1858, Mr. Pugh from that committee reported the following resolution: “Resolved, That Graham N. Fitch and Jesse D. Bright, Senators returned and ad- mitted from the State of Indiana, are entitled to the seats which they now hold in the Senate as such Senators aforesaid, the former until the 4th of March, 1861, and the latter until the 4th of March, 1863, according to the tenor of their respective credentials.’’ J pereclaen and the accompanying documents were on the same day ordered to be printed. The resolution was under consideration in the Senate, and fully debated at several subsequent times, and was finally, after the rejection of several proposed amendments, passed by the Senate without amendment or alteration. In the opinion of the com- mittee, this resolution (no motion having been made to reconsider it) finally disposed of all questions presented to the Senate involving the respective rights of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright to their seats in the Senate, as Senators from the State of Indiana for the terms stated in the resolution. It appears by the memorial that the legislature of Indiana, at its recent session in December last, assumed the power of revising the final decision thus made by the Senate of the United States under its unquestioned and undoubted constitutional authority to ‘‘be the judge of the qualifica- tions of its own members.’’ Under this assumption, it also appears by the journals of the senate and house of representatives of the State of Indiana, the legislature of Indiana, treating the seats of the Senators from that State as vacant, proceeded, subsequently, by a concurrent vote of the senate and house of representatives of the State, to elect the Hon. Henry 8. Lane as a Senator of the United States for the State-of Indiana, to serve as such until the 4th of March, 1863, and the Hon. William Monroe McCarty as a Sena- tor for the same State, to serve as such until the 4th of March, A. D. 1861. Under this action of the legislature of Indiana those gentlemen now claim their seats in the Senate of the United States. It may be conceded that the election would have been valid, and the claimants enti- tled to their seats, had the legislature of Indiana possessed the authority to revise the decision of the Senate of the United States that Messrs. Fitch and Bright had been duly elected Senators from Indiana, the former until the 4th of March, 1861, and the latter until the 4th of March, 1863. In the opinion of the committee, however, no such authority existed in the legislature of Indiana. There was no vacancy in the representation of that State in the Senate; and the decision of the Senate, made on the 12th of June, 1858, established finally and (in the absence of a motion to reconsider) irreversibly the right of the Hon. Graham N. Fitch as a Senator of the State of Indiana until the 4th of March, 1861, and the right of the Hon. Jesse D. Bright as a Senator from the same State until the 4th of March, A. D. 1863 S. Doc. 11——17 258 SENATE ELECTION CASES. The decision.was made by an authority having exclusive jurisdiction of the subject; was judicial in its nature; and, being made on a contest in which all the facts and «ues- tions of law involving the validity of the election of Messrs. Fitch and Bright, and their respective rights to their seats, were as fully known and presented to the Senate as they are now in the memorial of the legislature of Indiana, the judgment of the Senate then rendered is final, and precludes further inquiry into the subject to which it relates. There being, by the decision of the Senate, no vacancy from the State of Indiana in the Senate of the United States, the election held by the legislature of that State at its recent session is, in the opinion of the committee, a nullity, and merely void, and con- fers no rights upon the persons it assumed to elect as Senators of the United States. The committee ask to be discharged from the further consideration of the memorial of the legislature of Indiana. VIEWS OF THE MINORITY.* Mr. Collamer submitted the following views of the minority: The power of the Senate to judge of the election and qualification of its own members is unlimited and abiding. It is not exhausted in any particular case by once adjudi- cating the same, as the power of re-examination and the correction of error or mistake incident to all judicial tribunals and proceedings remains with the Senate in this respect, as well to do justice to itself as to the States represented or to the persons claiming or holding seats. Such an abiding power must exist, to purge the body from intruders, otherwise any one might retain his seat who had once wrongly procured a decision of the Senate in his favor by fraud or falsehood, or even by papers forged or fabricated. In what cases and at whose application a rehearing will at all times be granted is not now necessary to inquire; but when new parties, with apparently legal claim, apply, and especially when a sovereign State, by its legislature, makes respectful application to be represented by persons in the Senate legally elected, and insists that the sitting mnem- bers from that State were never legally chosen, we consider that the subject should be fully re-examined, and that neither the State, the legislature, or the persons now claim- ing seats can legally or justly be estopped, or even prejudiced, by any former proceed- ings of the Senate to which they were not parties. At the first session of the legislature of Indiana after the present sitting members were declared by the Senate as entitled to their seats, and at the earliest time it could take action, it declared their pretended election as inoperative and void, and that the State was infact unrepresented; and they proceeded to elect H. 8. Lane and William M. McCarty as Senators of the United States for said State, according to the Constitution of the United States; and they send here their memorial, alleging that the present sitting members were never legally elected; and they show facts, in addition to what was here- tofore presented to the Senate, tending, as they consider, to sustain this allegation. The said Lane and McCarty present their certificates and claim their seats. We consider the matters stated in said memorial as true. The said Lane and McCarty have presented their brief sustaining their claim to seats, which is in the words following: Brief of W. M. McCarty and Henry S. Lane, submitted to the Judiciary Committee of the Senate. The State is entitled to the office. The legislature is her supreme instrument and donee of the power to elect Senators. Itis the creature of the constitution, which is the chart of its power, vested only in two co-ordinate branches; a quorum of two-thirds of the members is requisite to give either a legal entity; each is equivalent in power, with an absolute veto on the power of the other. The legislature is a corporation aggregate, with only such power as its creator has seen fit to endow it with, to be exercised in conformity to the laws of its birth. To the joint wisdom and counsel of these colleges is the legislative power intrusted. It is not parceled out to its component elements in integrals, neither is it vested in an amalgamated body of the two. The one is erected as a barrier to the other. The ordeal of both must be passed. This guaranty against abuse cannot be broken down without destroying one of the safeguards of our Government. The sovereign voice is an unit. The power that utters it is an entirety—an invisible, intangible, artificial person. The power is in the organism called ‘‘the general assembly,’’ and not in the individual members. It is not the rights or powers of the members, but the delegated trust powers of the State that are wielded in senatorial elections or other exercises of legislative powers. Without a quorum of either house it did not exist—without either, the legis- lature did not exist, and without a legislature no election would be had. Now, the facts are that a quorum of neither house was present at the pretended elec- * Taken from Senate Reports, 2d sess. 35th Cong., keport No. 368, part 2, LANE AND MCCARTY VS. FITCH AND BRIGHT. 959 tion of Messrs. Bright and Fitch, nor even a majority of the senate, nor did either house prescribe the time, place, or manner of electing. It is of the essence of legislative power that its exercise shall ‘be free from all restraint; each body free to deliberate and act in its duties; each entitled to its full powers. The facts are that the senate, upon eight occasions, refused to go into joint convention with the house, and at no time consented. She could not be compelled to merge her individuality, or surrender her veto power, or adopt the joint-vote mode of electing Senators; or, in other words, dilute or annihilate her power, upon the mandate of the house, as that would degrade her from an equal to an inferior. On the contrary she had the right to determine the time, place, and manner, and did do it by resolution, to elect by separate vote, at a proper time, in which the house never concurred. Where diverse duties are imposed, she must determine which are most imperative and shall have priority. The constitution of Indiana only provides for a joint convention upon the contingency of a tie vote for governor and lieutenant-governor. That contingency did not exist; therefore the convention did not. To say that a duty to form a joint convention creates it is as absurd as to say that the subpoena of a witness works his presence, or the com- mands of the decalogue their observance. Failing to get the senate into a joint convention, a false record of that pretended fact was made, to be used as evidence, and which has been used as veritable and true, and the absolute verity and the unimpeachable quality of a record claimed for the fabrication. The resolves of the senate are those of the whole body. The mutinous senators who usurped the name and power of the senate in said pretended convention were subject to arrest by order of that body for absence, and the attempt to nullify the wil of the ma- jority by attempting a business at a time, place, and in a manner vetoed by that body by a resolve, then unvacated and unrescinded. Said convention, if it existed, expired with the duty that called it into life. The president of the senate, when inaugurated governor, his office as president of the senate expired, and with it that of his deputy president. The president not only usurped the power to appoint a clerk—an office not known to the law and void—who only authenticated this pretended election by inter- polating it into the journal of the house. This president, whose power expired with that of his creator, arrogated that of adjourning it to a fixed day; in other words, com- manding it to obey his arbitrary rescript; and, at a subsequent one, the more imperious mandate commanded them to elect Senators, no agreement whatever having been had by the house therefor as to time, place, and manner. We aver that not only did no usage exist in Indiana, but that in no solitary instance was an election had without the consent of both houses, fixing time, place, &c., by law or resolution. While said pretended convention was in existence, but adjourned to a fixed day, numerous attempts were made in both houses to create one by the members who voted for Messrs. Bright and Fitch; thus offering evidence that they did not con- sider that one had been formed and was in existence. No forced convention could be had. Mutual consent was necessary, and it was never had by a vote, which is the only mode of altering the will of a legislative body. The history of joint conventions in Indiana will also show that no other business was ever transacted than that for which it was specially convened. And we insist that the validity of the acts of a joint convention is due to the separate action of the two houses as the general assembly. It is also necessary to the validity of all elections by corporate bodies that notice be given of the time, &c., and the journals of neither house show any such notice or any conventional agreement for the same. Upon the facts and law above no legal election could have been had. To sustain the title of Messrs. Bright and Fitch, the constitution of Indiana, deposit- ing her legislative power in two co-ordinate houses, must be broken down—that which requires two-thirds of the members to exercise any of her attributes of sovereignty, and that one house cannot coerce the other. Not only is this election in defiance of these injunctions, but in the face of a positive dissent by one branch, armed by the people- with an absolute veto. But a presiding officer, who is no part of the legislature, usurped the powers and prerogatives of the legislature; all the forms and guarantees with which the people hedged in their legislative servant were disregarded, and it is claimed that the act is as valid as if they had been observed. To sustain Messrs. Bright and Fitch the constitution of Indiana is made a dead letter. Will the Senate, the peculiar guardians of State rights, reared up for that especial pur- , exclude Indiana from her weight and voice in it by instruments empowered by her? Will she be allowed to interpret her own constitution and acts, or will the Sen- ate, under any pretense, blot her out of the confederacy, and realize all those fears por- trayed by some of the framers of the Constitution by an absorbtion of and encroachment upon State rights? : . : ferred nk ; The legislative power enshrines and protects all rights subject to its jurisdiction. Prior to the confederation the several States owed this duty to their citizens. They did not 260 SENATE ELECTION CASES. surrender it, but intrusted it to the Federal for their better protection with the right guaranteed them of a voice in the Senate, as a means of enforcing this duty through the Federal instrument. We deny that under a constitutional grant of power, with prescribed modes of its exhibition, that you can discriminate between elections and laws. The selection ot a general, upon whose skill the fate of an army or the country may depend, or of a judge upon whose legal attainments and integrity the lives, liberties, and property of the citi- zen may depend, is of less moment than some petty law. The same power is as requisite to the creation of the one as the other. But it may be said that this question is res adjudicata. We deny that our rights or title are barred by a decision had before they were created. We deny that the judicial power of the Senate is capable of self-exhaustion. We deny that the political right of the State is capable of annihilation without annihilating the Constitution which creates the right. We insist that the right to judge of the election and qualification of members must continue while the term continues. The qualifications are continuing conditions of title. We deny that courts are ever estopped by their own action. We deny that sovereigns are estopped. We deny that Indiana was, prior to this time, a party to the proceedings of the Sen- ate, or had opportunity to allege or elicit the true facts. . We deny the power of the Senate, under the power to judge, to create Senators for In- diana. ‘We claim for her a superior knowledge of her own acts and grants. We insist that the simple admission of a Senator to his seat upon credentials is a de- cision, and that it was never pretended this precluded his ouster if his title were not good. If the Senate have not power to exclude foreign elements at all times, it is not equal to the duties intrusted to its guardianship. And we will not believe that the Senate is the only tribunal on earth whose wrongs, once done, are eternal and irrevocable. W. M. McCARTY. H. §. LANE. In the case of the State of Mississippi, in the House of Representatives in the Twenty- fifth Congress, the power to re-examine a decision made on an election of members was fully considered and decided. Gohlston and Claiborne were, at a special election held on the proclamation of the governor, chosen representatives from that State to a special ses- sion of Congress, called by the President. At that session exception was taken to them, but after some objection they were admitted to their seats. Their case and papers were referred to the Committee on Elections, who made report, and thereupon, on fall and elaborate discussion, it was resolved that they were duly elected members of the Twen- ty-fifth Congress, and entitled to their seats. This was in September. In November following an election was holden in said State, and Prentiss and Ward were elected members of the Twenty-fifth Congress, who, in December following, presented their cre- dentials and claimed their seats. It was then insisted in that case, as it now is in this, that the decision so before made was conclusive of the right of Claiborne and Gohlston to their seats as members of the Twenty-fifth Congress, and the whole matter was ‘‘res adjudicata.’’ But on full examination and after full discussion, the former resolution declaring said Caliborne and Gohlston as duly elected members of the Twenty-fifth Congress was rescinded. We are therefore of opinion that the memorial of the legislature of Indiana should be duly entertained and considered, and the said Lane and McCarty fully heard; and that if on full examination and hearing the Senate find that the present sitting members were not duly elected, the resolution declaring them elected should be reconsidered. And if the Senate find that the said Lane and McCarty were legally elected they should be admitted to their seats. J. COLLAMER. L. TRUMBULL. THURSDAY, February 10, 1859. On motion by Mr. Bayard, the Senate proceeded to consider the report of the Com- mittee on the Judiciary on the memorial of the legislature of Indiana asking that the Hon. Henry S. Lane and the Hon. William M. McCarty be admitted to seats in the Senate of the United States, as Senators duly elected by that legislature; and, On motion by Mr. Bayard, Ordered, That the further consideration thereof be postponed until to-morrow. On motion by Mr. Seward, the Senate proceeded to consider the resolution, submitted LANE AND M°CARTY VS. FITCH AND BRIGHT. 961 by him the 3d instant, to admit the Hon. Henry S. Lane and the Hon. William M. Mc- Carty to seats on the floor of the Senate during the discussion of the report of the Com- mittee on the Judiciary in relation to their election, and to permit them to speak on the merits of their rights to seats in the Senate; and, On motion by Mr. Seward, Ordered, That the further consideration thereof be postponed until to-morrow. [A short debate is found on pages 922, 923 of the Congressional Globe, part 1, 2d sess. 35th Cong. ] & * * * * * * On motion by Mr. Seward to postpone all prior orders to consider the report of the Committee on the Judiciary on the memorial of the State of Indiana in relation to the representation of that State in the Senate of the United States, it was determined in the negative—yeas 19, nays 20. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators “ present, : Those who voted in the affirmative are Messrs. Bell, Broderick, Cameron, Chandler, Clark, Collamer, Crittenden, Doolittle, Durkee, Foot, Harlan, Johnson of Tennessee, King, Seward, Simmons, Thompson of Kentucky, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Allen, Bates, Benjamin, Bigler, Brown, Clingman, Davis, Fitzpatrick, Gwin, Houston, Hunter, Jones, Mallory, Mason, Pugh, Reid, Sebastian, Shields, Slidell, and Ward. So the motion was not agreed to. [A short debate on the order of business is found on pages 933, 934 of the Congres- sional Globe, part 1, 2d sess. 35th Cong. ] FRIDAY, February 11, 1859. On motion by Mr. Seward, the Senate resumed the consideration of the report of the Committee on the Judiciary on the memorial of the State of Indiana, relating to the Senators of that State, viz, that the committee he discharged from the further consid- eration of the memorial. _ An amendment being submitted by Mr. Seward, and an amendment to that amend- ment being proposed by Mr. Pugh, While Mr. Seward was engaged in debate a question was raised, at 1 o’clock, by Mr. Iverson, whether the special order of the day (S. 497), being the unfinished business of yesterday, was not entitled to precedence. The Vice-President decided that Mr. Seward was still entitled to the floor, on a priv- ileged question. On motion by Mr. Pugh that the report of the committee, with the pending amend- ments, lie on the table, it was determined in the affirmative—yeas 31, nays 20. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Bigler, Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Mason, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Stuart, Thompson of Kentucky, Toombs, and Ward. Those who voted in the negative are Messrs. Bates, Bell, Broderick, Cameron, Chand- ler, Clark, Collamer, Doolittle, Douglas, Durkee, Fessenden, Foot, Hale, Harlan, King, Seward, Simmons, Trumbull, Wade, and Wilson. [A short debate is found on pages 957-959 of the Congressional Globe, part 1, 2d sess. 35th Cong. J Monpay, February 14, 1859. On motion by Mr. Collamer, the Senate proceeded to consider the report of the Com- mittee on the Judiciary on the memorial of the State of Indiana in relation to the Sena- tors from Indiana, with the reported resolution, that the Committee on the Judiciary be discharged from the further consideration of the memorial of the legislature of Indiana. An amendment having been proposed by Mr. Seward, to amend the resolution to dis- charge the Committee on the Judiciary by striking out all after ‘‘resolved’’ and insert- in R That Henry S. Lane and William M. McCarty have leave to occupy seats on the floor of the Senate pending the discussion of the report of the Committee on the Judiciary on the memorial of the legislature of Indiana declaring them her duly elected Senators, and that they have leave to speak to the merits of their rights to seats and on the report of the committee,”’ ’ On motion by Mr. Pugh to amend the amendment proposed by Mr. Seward, by strik- ing out all after ‘‘that’”’ and inserting “the resolution of the Senate, adopted June 12, 262 SENATE ELECTION CASES. 1858, affirming the right of Graham N. Fitch‘and Jesse D. Bright as Senaturs elected from the State of Indiana, the former until the 4th day of March, 1861, and the lat- ter until the 4th day of March, 1863, was a final decision of all the premises then in controversy, and conclusive as well upon the legislature of Indiana, and all persons claiming under its authority, as upon the Senators named in the resolution.”’ On motion by Mr. Harlan ‘‘That all the papers in this case be recommitted to the Committee on the Judiciary with instructions to inquire whether Graham N. Fitch and Jesse D. Bright or Henry 8S. Lane and W. M. McCarty, or any one of them, has been elected to the office of Senator of the United States from the State of Indiana as provided by the Constitution of the United States, and in accordance with the laws and usages of the State of Indiana, and report the facts connected with and bearing on the supposed election of each to the Senate, and that the contestants be allowed to appear at the bar of the Senate when such report shall be made and argue their right to seats,’’ After. debate, A division of the motion made by Mr. Harlan was called for by Mr. Stuart; and the question being taken on the first division, viz, ‘‘That all the papers in this case be re- committed to the Committee on the Judiciary,’’ it was determined in the negative— yeas 14, nays 32. On motion by Mr. Pugh, the yeas and nays being desired by one-fifth of the Senators present, : Those who voted in the affirmative are Messrs. Cameron, Chandler, Clark, Collamer, pele Dovglas, Fessenden, Foot, Hamlin, Harlan, King, Seward, Trumbull, and on. Those who voted in the negative are Messrs. Bayard, Benjamin, Bigler, Broderick, Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Lane, Mallory, Mason, Poik, Pugh, Reid, Rice, Shields, Slidell, Smith, Stuart, Toombs, and Ward. So the motion to recommit with instructions was disagreed to. The question recurring on agreeing to the amendment proposed by Mr. Pugh to the oo proposed by Mr. Seward, it was determined in the affirmative—yeas 30, nays 16. On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bayard, Benjamin, Bigler, Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson of Arkansas, Jones, Kennedy, Lane, Mallory, Mason, Polk, Pugh, Reid, Rice,. Shields, Slidell, Smith, Stuart, Toombs, and Ward. Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, Johnson of Tennessee, King, Seward, Trumbull, and Wilson. On the question to agree to the amendment of Mr. Seward, as amended, it was de- termined in the affirmative—yeas 29, nays 16. On motion by Mr. King, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Benjamin, Bigler, Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson of Arkansas, Jones, Kennedy, Lane, Mallory, Mason, Polk, Pugh, Reid, Rice, Shields, Slidell, Smith, Stuart, Toombs, and Ward. : Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, Johnson of Tennessee, King, Seward, Trumbull, and Wilson. On the question to agree to the resolution from the Committee on the Judiciary, amended, as follows: ‘* Resolved, That the committee be discharged from the further consideration of the memorial of the State of Indiana, and that the resolution of the Senate adopted June 12, 1858, affirming the right of Graham N. Fitch and Jesse D. Bright as Senators elected from the State of Indiana, the former until the 4th day of March, 1861, and the latter until the 4th day of March, 1863, was a final decision of all the premises then in con- troversy, and conclusive, as well upon the legislature of Indiana, and all persons claim- ing under its authority, as upon the Senators named in the resolution,’’ It was determined in the affirmative—yeas 30, nays 15. On motion by Mr. Johnson, of Tennessee, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Benjamin, Bigler, Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Lane, Mallory, Mason, Polk, Pugh, Reid, Rice, Shields, Slidell, Smith, Stuart, Toombs, and Ward. LANE AND MCCARTY VS. FITCH AND BRIGHT. 263 Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, King, Seward, Trum- bull, and Wilson. So the reported resolution, as amended, was agreed to. [The debates are found on pages 1014-1019 of the Congressional Globe, part 1, 2d sess. 35th Cong., and on pages 128-148 of the Appendix to the Congressional Globe, part 2, 2d sess. 35th Cong. ] 264 SENATE ELECTION CASES. [Special session of Senate, March, 1857.) SIMON CAMERON, Senator from Pennsylvania from March 17, 1845, till March 3, 1849 ; from March 4, 1857, till he resigned in March, 1861; and from March 4, 1867, till he resigned in March, 1877. Soon after Mr. Cameron had taken his seat in the Senate for the term beginning March 4, 1857, a protest against the legality of his election by certain members of the legislature of Pennsylvania was presented to the Senate. The subject was referred to the Committee on the Judiciary. The committee reported that the grounds of the protest were (1) that there was nota concurrent major- ity of each house in favor of Mr. Cameron; @) that the State senate did not comply in certain par- ticulars with an act of the State regulating the election of Senators; and (3) that the election was procured “by corrupt and unlawful means.” The committee reported in regard to the first ground of the protest that it was ‘‘ untenable under the statute of Pennsylvania and the uniform practical construction of the Federal Constitution for the last half century ;” in regard to the second ground of the protest they reported that the provisions of law alleged to have been disregarded werepurely directory, and that a failure to comply with them would not vitiate an election; and in regard to the third ground of the protest, reported that the ‘‘allegation was entirely too vague and indefinite” to justify the recommendation of an investigation by the United States Senate. The report ended with the resolution that the committee be discharged from the further consideration of the subject. The minority of the committee concurred with the majority in reference to the two first points, but submitted a report dissenting from the conclusion of the majority in regard to the third point, on the ground that when a protest of this nature comes from a responsible source the Senate should investigate the charges and allow the persons protesting an opportunity of submitting the proof a ss the charges rest. After a brief debate the resolution reported by the committee was adopted. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from the Senate Journal, 3d sess, 34th Cong., 1856-’57, and the report of the committee in the case from Senate Reports, 3d sess. 34th Cong., Report No. 1 of the special session. The debates in the case are found within pages 387-391 of the Appendix to the Congressional Globe, 3d sess. 34th Cong., 1856-57. Special references to the debate of each day are inserted below. FRIDAY, January 16, 1857. The President pro tempore presented the credentials of the Hon. Simon Cameron, elected a Senator by the legislature of Pennsylvania for the term of six years commencing on the 4th day of March next; which were read. WEDNESDAY, March 4, 1857. The oath prescribed by law was administered to Simon Cameron, and he took his seat in the Senate. Fripay, March 6, 1857. Mr. Bigler presented a protest of fifty-four members of the house of representatives, and a protest of fifteen members of the senate of the State of Pennsylvania against the proceedings under which the Hon. Simon Cameron claims to represent the State in the Senate of the United States from the 4th of March, 1857. Ordered, That they lie on the table. MonpDaAyY, March 9, 1857. On motion by Mr. Cameron, Ordered, Thatthe protest of certain members of the house of representatives of the State of Pennsylvania, and the protest of members of the senate of the said State, presented the 6th of March, be referred to the Committee on the Judiciary. WEDNESDAY, March 11, 1857. Mr. Benjamin, from the Committee on the Judiciary, to whom were referred a protest of members of the senate, and a protest of members of the house of representatives of the State of Pennsylvania against the election of the Hon. Simon Cameron as a Senator in Congress, submitted a report (No. 1), accompanied by the following resolution: “Resolved, That the Committee on the Judiciary be discharged from the further consid- eration of the subject.”’ Ordered, That the report be printed. Mr. Pugh submitted the views of the minority of the Committee on the Judiciary on the same subject; which were ordered to be printed with the report of the committee. Mr. Foot submitted the following resolution for consideration: ‘Resolved, That Simon Cameron is entitled to aseat upon this floor as a legally chosen Senator from the State of Pennsylvania. ”’ [The debate is found on pages 388, 389 of the Appendix to the Congressional Globe referred to in the head-note. ] ; SIMON CAMERON, 265 REPORT OF COMMITTEE. [The committee consisted of Messrs. Butler (chairman), Bayard, Toombs, Pugh, Ben- jamin, Collamer, and Trumbull. ] Report of the Committee on the Judiciary, on the protests of certain members of the legislature of Pennsylvania against the election of the Hon. Simon Cameron as a Senator in Congress. MAkcu 11, 1857.—Submitted, and ordered to be printed with the views of the minority of the committee. The Committee on the Judiciary, to whom was referred the protest of certain members of the senate and house of representatives of the State of Pennsylvania, alleging cer- tain irregularities and illegalities in the election of the Hon. Simon Cameron, a Senator from said State, report: That the grounds of protest are stated as follows, viz: First. That there was not a concurrent majority of each house in favor of the candidate declared to be elected. Second. That the senate did not comply with the requirements of the act of 2d July, 1839, by appointing a teller and making a nomination of persons to fill said office, and giving notice of said appointment and nomination at least one day previous to the meet- ing of said convention. In addition to the two grounds aforesaid, the protest presented by the members of the house of representatives charges, Third. ‘‘ That the election of the said Simon Cameron was procured, as they are in- formed and believe, by corrupt and unlawful means, influencing the action and votes of certain members of the house of representatives of this State, and they request that an investigation be ordered by your honorable body, not only into the regularity of the said election, but into the charges herein presented, in order that an opportunity may be afforded of submitting the proof upon which they rest.’’ In relation to the first two grounds of protest, the committee are unanimously of opin- ion that no facts are presented tending in the slightest degree to impair the validity of the election of Mr. Cameron. It is true that the law of Pennsylvania on the subject of the election of Senators re- quires that each branch of the legislature shall appoint one teller and nominate at least one person to fill such office, and communicate to the other house the names of the per- sons so appointed and nominated at least one day previous to the joint meeting; but the same law also provides that at the hour of twelve, on the second Tuesday in January next preceding the expiration of the constitutional term of a Senator, the members of both houses shall meet in convention in the chamber of the house of representatives and choose a Senator viva voce from the persons so nominated as aforesaid; and also expressly provides that the person who shall receive the votes of a majority of the members pres- ent shall be declared duly elected. From the extracts furnished by the protesting parties, taken from the journals of the two houses, it appears that the two houses did meet in joint convention on the day and at the place appointed by law, and in accordance with resolutions passed in each house separately, and that one hundred and thirty-three members, composing the entire legis- lature of Pennsylvania, were present and voted, and that Simon Cameron received 67 votes, and 66 votes were given for all the other candidates; and that Simon Cameron, having thus obtained a majority of the votes of all the members present, was declared duly elected Senator. ; It appears from the journal of the senate that the appointment of a teller and the nomination of candidates, and the communication to the other house of the appointment and nomination so made, all took place on the day of the election, instead of one day previous to the election, as required by the law of the State; but your committee regard this provision of law as purely directory in its nature, and are of opinion that a failure to comply with this formality would under no circumstances suffice to vitiate an elec- tion otherwise legal and valid; but where, as in the present case, both houses proceeded without objection from any source to perform their constitutional duty of electing a Sen- ator, the necessity of complying with any particular forms required by law may fairly be considered as waived by common consent, and it is entirely too late, after the result of the voting has been ascertained, to raise a question as to the mode of proceeding. The objection that there was not a concurrent majority of each house in favor of the candidate declared to be elected is equally untenable under the statute of Pennsylvania, and the uniform practical construction of the Federal Constitution for the last half entury. . The third ground of protest is signed by members of the house of representatives of Pennsylvania, but not by the members of the senate of that State. It is a general allegation ‘‘ that the election of the said Simon Cameron was procured, as they are informed and believe, by corruptand unlawful means, influencing the action 266 SENATE ELECTION CASES. and votes of certain members of the house of representatives,’’ and the Senate of the United States is asked to investigate the charge. The committee cannot recommend that this prayer be granted. The allegation is en- tirely too vague and indefinite to justify such a recommendation. Not a single fact or circumstance is detailed as a basis for the general charge. Neither the nature of the means alleged to be corrupt and unlawful, nor thetime, place, or manner of using them, is set forth, nor is it even alleged that the sitting member participated in the use of such corrupt means or, indeed, had any knowledge of their existence. Under no state ot facts could your committee deem it consistent with propriety, or with the dignity of this body, to send out a roving commission in search of proofs of fraud in order to de- prive one of its members of a seat to which he is, prima facie, entitled; still less can they recommend such a course when the parties alleging the fraud and corruption are them- selves armed with ample powers for investigation. Ifit be, indeed, true that members of the house of representatives of Pennsylvania have been influenced by corrupt consid- erations or unlawful appliances, the meansof investigation and redress are in the power of the very parties who seek the aid of the Senate of the United States. Let their com- plaint be made to the house of which they are members, and which is the tribunal pe- culiarly appropriate for conducting the desired investigation. That their complaint will meet the respectful consideration of that house your committee are not permitted to doubt. If upon such investigation the facts charged are proven, and if they in any manner involve the character of the recently elected member of this body from the State of Pennsylvania, the Constitution of the United States has not left the Senate without ample means for protecting itself against the presence of unworthy members in its midst. In the mean time your committee see no reason for initiating any proceeding on the subject, and submit the following resolution: . Resolved, That the Committee on the Judiciary be discharged from the further con- sideration of the subject. VIEWS OF THE MINORITY. The undersigned, a member of the Committee on the Judiciary, dissents from the vonuclusion at which his colleagues have arrived in reference to the contested election of u Senator for the State of Pennsylvania. In the protest submitted by forty-four members of the house of representatives in that State will be found an allegation in these words: “ One member of the committee did not concur in this conclusion. May 7a resolution was submitted that Mr.Stark, who had been found disloyal by a committee of the Senate, be expelled, which resolution was determined in the negative, June 6, by a vote of 16 yeas to 21 nays. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journal, 2d sess. 37th Cong. ; the report (majority and minority) of the Com- mittee on the Judiciary (excepting the evidence), from Senate Reports, 2d sess. 37th Cong., No. 11; and the report of the select committee from Senate Reports, Ib. No. 38. Special references to the debates of each day are inserted below. MonpDaAy, January 6, 1862. Mr. Nesmith presented the credentials of the Hon. Benjamin Stark, appointed a Sen- ator in Congress: by the governor of the State of Oregon ‘to fill the vacancy occasioned by the death of the Hon. Edward D. Baker; which were read. Mr. Fessenden moved that the oath prescribed by law be not administered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary. After debate, On motion by Mr. Bayard, Ordered, That the motion of Mr. Fessenden lie on the table. [The debate is found on pages 183-185 of the Congressional Globe, part 1, 2d sess. 37th Cong. ] THURSDAY, January 9, 1862. On motion by Mr. Bayard that the Senate proceed to the consideration of the motion submitted by Mr. Fessenden the 6th instant, that the oath prescribed by law be not ad- ministered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary, it was determined in the negative. FRIDAY, January 10, 1862. The Senate resumed the consideration of the motion submitted by Mr. Fessenden the 6th instant, ‘‘ that the oath prescribed by law be not administered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary.”’ : On motion by Mr. Bayard +o amend the motion of Mr. Fessenden by striking out the word ‘‘not,’’ After debate, it was determined in the negative—yeas 9, nays 29. On niotion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Bayard, Bright, Latham, Nesmith, Pearce, Powell, Rice, Saulsbury, and Thomson. Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sim- mons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, and Wilsdn. BENJAMIN STARK. 985 On the question to agree to the motion of Mr. Fessenden, it was determined in the affirmative—yeas 28, nays 11. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Browning, Chandler, Colla- mer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, and Wilson. Those who voted in the negative are Messrs. Bayard, Bright, Carlile, Kennedy, La- tham, Nesmith, Pearce, Powell, Rice, Saulsbury, and Thomson. [The debate is found on pages 265-269 of the Congressional Globe, part 1, 2d sess. 37th Cong. ] : ; FRIDAY, February 7, 1862. Mr. Harris, from the Committee on the Judiciary, to whom were referred the creden- tials of the Hon. Benjamin Stark, with certain papers presented by Mr. Fessenden in reference thereto, submitted a report (No. 11), accompanied by the following resolution (resolution given below in report). . Mr. Trumbull asked and obtained leave to submit the views of the minority of the Committee on the Judiciary on the subject. On motion by Mr. Sumner, 3 Ordered, That the report of the Committee on the Judiciary, with the views of the minority of the committee, and the accompanying papers, be printed. [The debate is found on pages 696, 697 of the Congressional Globe, part 1, 2d sess. 37th Cong. ] REPORT OF COMMITTEE.* [The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan Harris, Bayard, and Powell. ] In THE SENATE OF THE UNITED STATES. FEBRUARY 7, 1862.—Read, and ordered to be printed. Mr. Harris submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Benjamin Stark. as a Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, and, without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case, they report the follow- ing resolution: Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the Constitutional oath of office. VIEWS OF THE MINORITY Of the Committee on the Judiciary (Mr. Trumbull) on the credentials of Benjamin Stark as a Senator from Oregon, and the papers presented on the subject. FEBRUARY 7, 1862.—Ordered to be printed. Unable to agree with the majority of the committee, to whom were referred the cre- dentials of Benjamin Stark, with the accompanying papers, the undersigned submits the following views: A preliminary question was raised in the Senate when this case was referred to the comniittee, whether it was competent for the Senate for any cause to refuse to allow a person to be sworn as a member of the Senate whose credentials were in proper form, and who possessed all the qualifications as to age, citizenship, and inhabitancy prescribed by the Constitution, and whether the only remedy which the Senate had to protect itself against the presence of an infamous person, a convicted felon, or an avowed and open traitor, was not by expulsion by a two-thirds vote after he should have been sworn into office. The Senate decided, after debate, to refer the credentials of Mr. Stark, with the accompanying papers, consisting of written statements and affidavits impeaching his loyalty, to the committee without allowing him to besworn. A majority of the com- mittee now report the case back, with a resolution that Mr. Stark is entitled to take the Constitutional oath, expressly stating that they do so ‘‘ without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case.’’ This reservation of opinion on the evidence could only have become necessary on the sup- *The accompanying documents are annexed to the report (pages 5-15), a reference to which is given in the head-note. 286 SENATE ELECTION CASES. position that some subsequent proceedings might be taken in the case, referring doultless to a motion to expel the Senator after he should have been admitted a member, fur the reasons assigned in the accompanying papers, in effect establishing the principle that evidence of disloyalty; which might be sufficient to expel a member when admitted, was not sufficient to prevent his qualifying as a member. To this principle the undersigned. cannot agree. He believes it was the duty of the committee to examine and pass upon the evidence before it, and if found insufficient to prevent Mr. Stark from taking the Constitutional oath, that it would also be insufficient to warrant his expulsion after he was admitted. It is admitted that neither the Senate, Congress, nor a State can superadd other quali- fications for a Senator to those prescribed by the Constitution, and yet either may pre- vent a person possessing all those qualifications, and duly elected, from taking his seat in the Senate. Does any one question the right of a State to arrest for crime a person duly qualified for and appointed a Senator, hold him in confinement, and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after his appointment, and before qualifying, to commit the crime of murder, would any one question the right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for the offense was imprisonment, would any one question the right to hold the Senator in prison, and thereby prevent his appearing in the Senate? Could the Senate in such a case expel him before he had been admitted to a seat? Or must he [be] brought from the felon’s cell, be introduced into the Senate, and sworn as a member before his seat could be declared vacant? If not, must the State go unrepre- sented till the time for which he was appointed has expired? Or would it be competent for the Senate in such a case, by a majority vote, to declare the convict incompetent. to hold a seat in the body, and thereby open the way for the appointment of a successor? It is manifest that the prescribing of the qualifications for a Senator in the Constitution was not intended to prevent his being held amenable for his crimes. The fact that the Constitution declares that Senators and Representatives ‘‘shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same,”’ is conclusive that for those offenses they may be arrested. As a punishment for crime, then, it is clear that a Senator-elect, possessing all the Constitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath of office. Congress has repeatedly acted upon the presumption that it was entirely competent for it to pre- scribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit, or trust under the United States. By a statute passed in 1790, any person giving a reward to a United States judge as a bribe to procure from him any opinion or judgment, and the judge receiving such bribe, are both declared to be forever disqualified to hold any office of honor, trust, or profit under the United States. By an act passed in 1853, any member of Congress after his election, and whether before or after he is qualified, who shall accept any reward given for the purpose of influencing his vote on any question which may come before him in his official capacity is declared incapable forever of holding any office of honor, trust, or profit under the United States. Similar laws, it is believed, exist in most of the States, prescribing as part of the punishment for particular offenses, such as dueling, bribery, and some others, a disqualification for holding any office under the State, and this notwithstanding the State constitutions may have prescribed the qualifications for members of their legislatures, of which the disqualification arising from the convic- tion for crime was not one. The power of Congress to prescribe the punishment for treason is expressly given by the Constitution, except that it cannot be made to work corruption of blood or forfeiture beyond the life of the person attainted. Does any one doubt the power of Congress under this clause of the Constitution to declare that a per- son convicted of treason should forever be incapable of holding any office under the United States? If this were done, would it be pretended that a convicted traitor was entitled to be sworn as a Senator? The clause of the Constitution prescribing the qual- ifications of Senators and Representatives could never have been intended to limit the power to make disqualification to hold those or any other offices a penalty for the com- mission of crime, especially treason. Its design, doubtless, was to produce uniformity of qualification in all the States, and to prevent any particular class of persons, such as ministers of the gospel, or others, from being excluded from these positions. If it be competent for Congress to make disqualification to hold office a punishment for an of- fense against the United States, then it is clearly competent for the Senate, which, by the Constitution, is made ‘‘the judge of the elections, returns, and qualifications of its own members,’’ to do the same thing, so far as the right to take a seat in that body is concerned. Doubtless a law of Congress declaring that # person convicted of a partic- ular offense should not hold office under tha United States, and the decision of the BENJAMIN STARK. 287 courts sustaining such a law, would not preclude the Senate from admitting such a per- son to a seat, should it think proper, because the Senate is the exclusive judge. of the elections, returns, and qualifications of its own members; yet it is hardly conceivable that the Senate ever would admit such a person « be sworn; nor does the fact that Con- gress has not adopted such a punishment for disloyalty or treason prevent the Senate from refusing to allow to be sworn as a member a person believed by the body to be guilty of those offenses or other infamous crimes. That one avowed traitor, a convicted felon, or a person known to be disloyal to the Government, has a constitutional right to be admitted into the body, would imply that the Senate had no power of protecting itself—a power which, from the nature of things, rust be inherent in every legislative body. Suppose a member sent to the Senate, be- fore being sworn, were to disturb the body and by violence interrupt its proceedings, would the Senate be compelled to allow such a person to be sworn as a member of the body before it could cast him out? Surely not, unless the Senate is unable to protect itself and preserve its own order. The Constitution declares that ‘‘each house may de- termine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member.’’ The connection of the sentence in which the power of expulsion is given would indicate that it was intended to be exer- cised for some act done as a member, and not for some cause existing before the member was elected or took his seat. For any crime or infamous act done before that time the appropriate remedy would seem to be to refuse to allow him to qualify, which, in the judgment of the undersigned, the Senate may properly do; not by way of adding to the qualifications imposed by the Constitution, but as a punishment due to his crimes or the infamy of his character. Hence, the undersigned, conceiving that it was the duty of the committee to have expressed its opinion on the evidence of disloyalty before it, and to have reported in favor of or against the swearing in of the Senator, as the evi- dence should warrant, and not allow him to be first sworn, and leave the question ot his loyalty to be subsequently determined on a motion to expel, the undersigned for- bears to review the evidence of disloyalty before the committee, or to express any opinion upon it, till the pending question of jurisdiction to consider it is determined. LYMAN TRUMBULL. TUESDAY, February 18, 1862. On motion by Mr. Harris, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary, declaring Benjamin Stark, appointed a Senator by the gov- ernor of the State of Oregon, entitled to take the constitutional oath of office; and On motion by Mr. Hale that the report of the Committee on the Judiciary in the case of Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, be recommitted to the committee, and that said committee be instructed to report on the facts proved or admitted, whether, in their judgment, the evidence before them so far impeaches his loyalty as to disqualify him from holding a seat in the Senate of the United States, After debate, On motion by Mr. Doolittle, the Senate adjourned. [The debate is found on pages 861-873 of the Congressional Globe, part 1, 2d sess. 37th Cong. ] : THURSDAY, February 20, 1862. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring that Benjamin Stark, appointed a Senator by the governor of the State of Oregon, is entitled to take the constitutional oath of office; and On motion by Mr. Wilkinson, Ordered, That the further consideration thereof be postponed to to-morrow at 1 o’clock. Monpay, February 24, 1862. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring Benjamin Stark, appointed a Senator by the governor of the State of Oregon, entitled to take the constitutional oath of office; and, After debate and the consideration of executive business, the Senate adjourned. [The debate is found on pages 925-929 of the Congressional Globe, part 1, 2d sess. 37th Cong. ] WEDNESDAY, February 26, 1862. On motion by Mr. Harris, the Senate resumed the consideration of the resolution re- ported by the Committee on the Judiciary, affirming the right of Benjamin Stark, ap- 288 SENATE ELECTION CASES. pointed a Senator by the governor of the State of Oregon, to take the constitutional oath of office; and Mr. Hale having withdrawn the motion made by him to recommit the report to the Committee on the Judiciary, with certain instructions, On motion by Mr. Sumner to amend the resolution by striking out the words ‘‘is en- titled to take the constitutional oath of office,’’ and in lieu therof inserting ‘‘ and now charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter addressed to the Secretary of State, and signed jointly by many citizens of Oregon, some of whom hold public trusts under the United States, is not entitled to take the constitu- tional oath of office without a previous investigation into the truth of the charge,”’ After debate, On motion by Mr. Fessenden that the Senate adjourn, it was determined in the affirm- ative—yeas 21, nays 20. [The debate is found on pages 963-975 of the Congressional Globe, part 2, 2d sess. 37th Cong. | THURSDAY, February 27, 1862. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, affirming the right of Benjamin Stark, appointed a Senator by the gov- ernor of the State of Oregon, to take the constitutional oath of office; and On the question to agree to the amendment proposed by Mr. Sumner to the resolu- tion, viz: Strike out the words ‘‘is entitled to take the constitutional oath of office’ and in lieu thereof insert ‘‘and now charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter addressed to the Secretary of State, and signed jointly by many citizens of Oregon, some of whom hold public trusts under the United States, is not entitled to take the constitutional oath of office without'a previous investigation into the truth of the charge,’’ After debate, it was determined in the negative—yeas 18, nays 26. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Chandler, Clark, Dixon, Doolittle, Grimes, Hale, Harlan, Howard, King, Lane of Indiana, MorrilJ, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts. Those who voted in the negative are Messrs. Anthony, Browning, Carlile, Collamer, Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, Thomson, Willey, and Wilson of Missouri. On motion by Mr. Doolittle to amend the resolution by inserting at the end thereof the words ‘‘ without prejudice to any subsequent proceedings in the case,’’ it was deter- mined in the affirmative. On the question to agree to the resolution as amended, as follows: “Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the constitutional oath of office without prejudice to any subsequent proceedings in the case,”’ It was determined in the affirmative—yeas 26, nays 19. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Anthony, Browning, Carlile, Collamer, Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, Thomson, Willey, and Wilson of Missouri. Those who voted in the negative are Messrs. Chandler, Clark, Dixon, Doolittle, Foot, Grimes, Hale, Harlan, Howard, King, Lane of Indiana, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts. So the resolution as amended was agreed to; and The Vice-President administered to Mr. Stark the oath prescribed by law, and he took his seat in the Senate. [The debate is found on pages 988-994 of the Congressional Globe, part 2, 2d sess. 37th Cong. ] FRIDAY, February 28, 1862. Mr. Stark submitted the following resolution for consideration: “Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator trom Oregon, be withdrawn from the files of the Senate and referred to the Committee on the Judiciary, with instructions to investigate the charges preferred against said Stark on all evidence which has been or may be presented, and with power to send for persons and papers.” BENJAMIN STARK. 289 The Senate proceeded, by unanimous consent, to consider the said resolution; and After debate, _ On motion by Mr. McDougall that the resolution lie on the table, it was determined in the negative—yeas 7, nays 32. On mean by Mr. King, the yeas and nays being desired by one-fifth of the Senators present, ; Those who voted in the affirmative are Messrs. Carlile, Hale, McDougall, Nesmith, Pearce, Powell, and Saulsbury. < Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Henderson, Howard, Howe, Johnson, King, Lane of Indiana, Latham, Morrill, Pom- eroy, Rice, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, and Wilson of Massachusetts. Pending further debate upon the resolution, The Vice-President announced that the hour of 1 o’clock had arrived, and that it was the duty of the Chair to call up the special order of the day for that hour, which was the bill (S. 151) to confiscate the property and free the slaves of rebels, being the unfinished business of the Senate at its last adjournment; and the Senate resumed the consideration of the said bill. [The debate is found on pages 1011-1014 of the Congressional Globe, part 2, 2d sess. 37th Cong. ] TUESDAY, March 18, 1862. On motion by Mr. Howe, the Senate resumed the consideration of the resolution sub- mitted by Mr. Stark the 28th of February, in relation to an investigation into certain charges of disloyalty preferred against him; and After debate, On motion by Mr. Wilkinson that the resolution lie on the table, it was determined in the negative—yeas 3, nays 35. On motion by Mr. Howe, the yeas and pays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Hale, Saulsbury, and Wilkinson. Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Clark, Col- lamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris, Hen- derson, Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, Nesmith, Pomeroy, Powell, Sherman, Simmons, Sumner, Ten Eyck, Thomson, Trumbull, Wade, Wilmot, and Wilson of Massachusetts. After further debate, On motion by Mr. Trumbull to amend the resolution by striking out the words ‘‘the Committee on the Judiciary’’ and inserting ‘‘a select committee to consist of five mem- bers,’’ it was determined in the affirmative. On the question to agree to the resolution, as amended, as follows: ‘Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon, be withdrawn from the files of the Senate and referred to a select committee to consist of five members, with instructions to investigate the charges preferred against said Stark on all evidence which has been or may be presented, and with power to send for persons and papers,”’ It was determined in the affirmative—yeas 37, nays 3. On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Browning, Clark, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris, Henderson, Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, Nesmith, Pomeroy, Powell, Rice, Sherman, Simmons, Sumner, Ten Eyck, Thomson, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright. Those who voted in the negative are Messrs. Bayard, Hale, and Saulsbury. So the resolution as amended was agreed to. On motion by Mr. Collamer, Ordered, That the select committee authorized by the said resolution be appointed by the Vice-President. The Vice-President appointed Mr. Clark, Mr. Howard, Mr. Wright, Mr. Willey, and Mr. Howe. [The debate is found on pages 1261-1266 of the Congressional Globe, part 2, 2d sess. 37th Cong. J TUESDAY, April 2, 1862. Mr. Clark, from the select committee appointed to investigate the truth of certain charges against the Hon. Benjamin Stark, a Senator from the State of Oregon, submitted a report (No. 38), which was ordered to be printed. S. Doe. 11——19 290 SENATE ELECTION CASES. REPORT OF SELECT COMMITTEE. [The committee consisted of Messrs. Clark, Howard, Wright, Willey, and Sherman.*] In THE SENATE OF THE UNITED STATES. APRIL 22, 1862.—Ordered to be printed. Mr. Clark submitted the following report: The select committee to whom were referred ‘‘the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon,’’ report: By the resolution under which the committee were appointed they were instructed ‘*to investigate the charges preferred against said Stark on all the evidence which has been or may be presented, and with power to send for persons and papers.”’ The first question which presented itself for the consideration of the committee was, whether they would proceed to take further testimony than that already taken and referred to them by the resolution. In determining this question the committee were influenced by the facts that the Senator whose loyalty is questioned comes from the distant State of Oregon; that the witnesses who could be supposed to know most in regard to his loyalty resided in that State, and that their testimony could not be had until the next session of Congress; that the Senator was appointed by the governor of Oregon to fill the vacancy occasioned by the death of the lamented Baker, and that his term would expire upon the meeting of the legislature of Oregon in September next, and before the testimony could be received and used. The committee therefore came to the conclusion that it was not practicable to take further testimony, unless the Senator from Oregon, Mr. Stark, might desire to take tes- timony to rebut that already before the committee. To ascertain Mr. Stark’s desire on this point, they caused to be addressed to him a letter, of which the following is a copy: UNITED STATES SENATHR, Committee Room on Claims, March 20, 1862. Sim: At a meeting of the select committee authorized by the resolution of the Senate of the 18th instant “‘ to investigate the charges preferred against Mr. Stark, on all evi- dence which has been or may be presented, with power to send for persons and papers,’’ the following resolution was adopted: On motion by Mr. Howard, ‘‘ Resolved, That the Hon. Mr. Stark be notified of the next meeting of the committee, and be invited to attend and submit to the committee any suggestions or matters he may be pleased to present in relation to the subject with which the committee is charged.’’ In conformity with the foregoing resolution you are respectfully notified that the next meeting of the committee will be held at the room of the Senate Committee on Claims on Monday next, the 24th instant, at 11 o’clock a. m., which you are invited. to attend. By order of the committee. N. C. TOWLE, Clerk Select Committee, é&c. Hon. BENJAMIN STARK, Senator from Oregon. The committee met on the 24th of March, and the Senator from Oregon attended the meeting in compliance with the invitation of the committee, and desired that the com- mittee should examine the papers before them, and if they should come to the conclusion that grounds were furnished for the charge of disloyalty by the papers and testimony, that the committee should draw up specific charges, to which he would file his answer. This the committee declined to do, for the reason that they did not wish to become his prosecutors, and were charged by the Senate with investigation and not accusation. Mr. Stark was informed that the committee did not propose to take any further testi- mony unless he desired it, but would investigate the charges as presented by the papers then before them. To which the committee understood Mr. Stark to reply that he did not wish to take any further testimony as the matter stood. It was then suggested by the committee to the Senator from Oregon that he should sumbit to the committee his answer in writing to the allegations and evidence then’ before the committee, with any farther evidence he might wish to present, and that the committee would adjourn tu afford him the necessary time for that purpose. With this proposal the Senator expressed his compliance and satisfaction, and the committee adjourned to meet again at his convenience. * Mr. Sherman was appointed in place of Mr. Howe, excused BENJAMIN STARK. 291 At a subsequent meeting of the committee on the 14th April the following statement was presented from Mr. Stark and considered: Wasunineton, D. C., April 10, 1862. Sip: I have the honor to acknowledge the reception of a note from your committee, inviting me to make any suggestions I may think proper upon the statements and ex parte affidavits in relation to my loyalty, which were referred to the committee under the resolution adopted by the Senate on the —— ultimo. Deeply sensible of the courtesy of the committee thus extended to me, I regret that unavoidable absence from the city and the pressure of other engagements have prevented me from making an earlier response. I presume that in extending to me this invitation before entering upon the investiga- tion necessary to a discharge of the delicate duty devolved upon them by the Senate the committee designed simply to afford me an opportunity, if I should deem it proper to do so, to present my personal views of the matter now pending before them. Under the resolution of reference, the committee are clothed with the fullest powers for the purpose of confirming or dissipating any doubts which may have been engen- dered by these statements and affidavits as to my loyalty. In offering that resolution I have shown, I think conclusively, that there was no disposition on my part to shun the most searching investigation. If the committee propose to confine their investigation exclusively to those statements and ex parte affidavits now before them, in connection with what I may submit for their consideration, it may not be inappropriate for me to express my opinions in regard to them, and I shall do so in the same spirit by which the committee appear to have been actuated in making the request. As it could not be fairly supposed that I would permit myself to occupy the attitude of self-prosecutor, or that I would assume the task of defending myself when no charge on prima facie evidence had been preferred against me, I trust that I may do so without derogating from the true position which my honor and self-respect demand that I should occupy. With all due deference, therefore, I submit that as a Senator of the United States for the State of Oregon I am entitled to, and I claim, every presumption of honor, integrity, loyalty, and patriotism that can be claimed by any other Senator until such presump- tion is overborne by competent testimony. It certainly would be very extraordinary to put an honorable Senator upon trial for expulsion without charges and specifications made with reasonable (if not technical) precision, and supported by testimony subjected to all the tests which human wisdom and human experience have found to be essential for the ascertainment of truth. Should such a case ever arise it is reasonable to suppose that it would not be permitted long to interrupt the order or disturb the decorum of the Amer- ican Senate. Unless the proceedings of your committee are to be regarded as a prelim- inary inquiry whether or not charges for expulsion ought to be preferred against me, in what essential particular does this case differ from the one suggested ? The papers referred to you I have again examined with that earnest attention which a deep personal interest in the result of an inquiry must ever stimulate, and with the light reflected upon them by the communication which I had the honor to address to the Com- mittee on the Judiciary, under date of January 17th ultimo, I am unable to discover any- thing upon which a sufficient charge for expulsion can be predicated, or anything in the nature of evidence which an impartial tribunal could receive as sufficient to justify expul- sion from the Senate. Accepting all the statements contained in the letters, affidavits, &c., to be true, and there is merely attributed to me opinions which in the field of poli- tics might be regarded as heresies, and expressions charged upon me which might be characterized as idle, mischievous, and unwise. This suggestion, I need notremind the committee, is not made as palliative wpon an admission by me of the truth of any part of these statements, but purely as argumentative and as properly within the scope of my purpose in addressing to them this communication. Guided by this purpose I have in these reflections excluded any denial or admission of anything contained in the papers before the committee, my chief design being accomplished if I shall have succeeded in showing the utter impossibility of making, or even entering upon, a defense of any spe- cific charge or of proffering to rebut evidence when none is presented. _ I cannot conclude this brief statement without asserting, as in substance I did in my communication to the Judiciary Committee, that the declarations of my assailants are utterly false in many particulars which might be deemed important, especially the state- ments of Hull and Law; that the expressions attributed to me in others of the affidavits have been wickedly and maliciously perverted, and that in every respect their declara- tions are unjust to my real sentiments and at variance with the whole tenor of my life. Should the committee, however, deem that the public safety and welfare require a formal inquest upon my loyalty and fidelity to the Constitution and Government of my country, I submit with profound respect that justice demands that the general allega- 292 SENATE ELECTION CASES. tions of my assailants should be digested and presented in the form of charges and speci- fiations so that I may have the ordinary and common rights accorded to the humblest citizen when arraigned for trial for the a trivial offense. I in, si bedient servan are are ee : BENJAMIN STARK. Hon. D. CLARK, Chairman. After considering this statement, desirous to know if the Senator had any further communication for the committee or wished to lay before them any further testimony, the committee caused a note to be addressed to him, of which the following is a copy: UnitTED STATES SENATE, Committee Room on Claims, April 14, 1862. Siz: At a meeting of the select committee, of which Hon. Mr. Clark is chairman, held at their room this day, your communication of the 10th instant addressed to the com- mittee through its chairman was read and considered, after which it was ordered thata communication be addressed to Mr. Stark requesting him to inform the committee at his earliest convenience whether he desires to submit any further testimony or to make any further statement to the committee in regard to the matters under investigation. The committee adjourned to Wednesday nextat 11 a.m., by which time, if convenient to Mr. Stark, an answer is desired. By direction of the committee. N. C. TOWLE, Clerk. Hon. BENJAMIN STARE, Senator from Oregon. The committee met again on the 16th of April, when the following note was received from the Senator from Oregon: SENATE CHAMBER, April 15, 1862. Sr: In answer to the note of your committee, dated yesterday, I have to state that in the absence of information from them as to the course which they deem it to be their duty to pursue I have nothing to add to what I have already communicated to them, nor do I propose in the present situation of the subject before them to present any testi- mony. With great respect, I am your obedient servant, : BENJAMIN STARK. The committee then proceeded to consider the allegations and charges tontained in the papers which had been submitted to them by the Senate, in connection with his answer and statement, and upon mature deliberation do find the following conclusions from the facts proved, viz: 1st. That for many months prior to the 21st November,1861, and up to that time, the said Stark was an ardent advocate of the cause of the rebellious States. 2d. That after the formation of the constitution of the Confederate States he openly declared his admiration for it, and advocated the absorption of the loyal States of the Union into the Southern Confederacy under that constitution as the only means of peace, warmly avowing his sympathies with the South. ’ 3d. That the Senator from Oregon is disloyal to the Government of the United tates. In coming to the foregoing conclusion, the committee cheerfully agree to the statement of the Senator in his answer, that, ‘‘as a Senator of the United States for the State of Oregon, Iam entitled to, and I claim, every -presumption of honor, integrity, loyalty, and patriotism that can be claimed by any other Senator, until such presumption is overborne by competent testimony;’’ and they cheerfully accord to him all the force and benefit of such a presumption; at the same time they are forced, with pain and reluctance, to find such presumption overborne by the array of witnesses which testify in regard to his conduct and declarations. Thirteen witnesses, who are not only unim- peachable, but are among the most respectable people of the city of Portland, where Mr. Stark resides, testify to the truth of the first of the foregoing propositions. They are William H. Rector, William C. Johnson, C. B. Conelon, A. B. Clough, Levi Ander- son, Colburn Barrell, Henry Failing, John §. White, W. H. Bamhart, 8. P. Reed, H. W. Corbet, Simeon Francis, and Samuel E. Barr. They say ‘‘ Mr. Stark, who is a resi- dent here, and personally known to us all, has been, for the past twelve months, an ardent advocate of the cause of the rebellious States.’’ It may be objected that these witnesses do not make this statement under oath, and such is the fact; but they nevertheless, in the opinion of the committee, are entitled to belief. Their character for tespectability, BENJAMIN STARK. 293 and the positions of some of them, entitle them to it. They gave their testimony months ago, on the 21st November, 1861. It seems to be fair and unprejudiced. hey declare that a sense of duty induces them to make their statement. It has been a long time before the Senate; and, although in his communication to the Committee on the Judiciary, dated the 17th January, 1862, the Senator from Oregon declared ‘‘that in a forum, competent to try and determine the issue, he should be able to prove the allega- tions against his loyalty to be utterly unfounded; and that, in many important par- ticulars, the declarations of his assailants were false,’’ yet when an opportunity has’ been given to the Senator, upon his own motion, to send for persons and papers to disprove these allegations before a committee legally, if not otherwise, competent, the Senator does not desire these witnesses to be put under oath, nor to be re-examined, nor cross-examined; nor does he offer any rebutting testimony, or express a wish that any should be taken; nor does he, in his statement, filed before the committee, so far as the committee remember, attempt to deny or impeach it—for while he says that the statements of Hull and Law are especially false, he makes no such allegation against these thirteen witnesses, or any one of them. He objects to no one of these witnesses because his statement was not made under oath. These witnesses, however, do not stand alone, nor does the finding of the committee on this proposition rest solely upon testimony given without the sanctity of an oath. Wesley C. Hull, upon oath, on the 18th November, 1861, says that, in the month of February previous, he heard Mr. Stark make use of the following language: ‘‘If there is to be any war between the North and the South, all my property is for sale at fifty cents on the dollar, and I will go and help the South fight. The Palmetto flag is my flag; the Southern Confederacy is the only legal government in existence; that the United States Government is broken up; that Jeff. Davis is fighting in a good cause, and it will be im- possible to defeat him;’’ that afterwards upon another occasion he heard the said Stark use the following language: ‘‘ The United States forces may fight the South from one end of their government to the other, but it will amount to nothing; they will close ap behind them, and they cannot be conquered. The South is fighting in a good cause, for government and order, and they cannot be conquered.”’ Henry Law, also on oath, says that he is acquainted with Mr. Stark; that as early as December, 1860, he heard Mr. Stark say ‘‘that he did not go one cent on the Stars and Stripes; that the Palmetto flag was his flag, and if there was any issue between the North and South, he would sell all his property and go South.’’ A. M. Starr, also under oath, on the 20th November, 1861, declared that within the then last two weeks past he had heard Mr. Stark say that there was no United States Government; and also he heard Mr. Stark say, when the President first called for voi- unteers, ‘‘that the United States Government could not support an army of 30,000 in the field for six months; that the people of the loyal States would not back up the Administra- tion in trying to put down this rebellion.” Thirty other witnesses, likewise under oath, say, on the 15th November, 1861, ‘‘ that Mr. Stark is well known and generally reputed to be an open and avowed friend to the Southern Confederacy as against the Union.” Samuel E. Barr, the magistrate before whom the last-named thirty witnesses made oath, says he is acquainted with each and every one of them, and that they are all men of truth and veracity, and further, that he subscribes to the facts which they stated. Here are forty-six witnesses, all testifying, materially and directly, to the same sub- stantive fact, to wit, that Mr. Stark has been the advocate of the Southern Confederacy; uncontradicted and unimpeached, except so far as the statement of Mr. Stark may go to that purpose; and the committee are unable to see how a larger number of witnesses could establish the truth of the proposition more firmly. They do not forget, however, that Mr. Stark says that the testimony of two of those witnesses, especially Hull and Law, is false, and he is entitled to any deduction that may be made from their credibil- ity on that account, and to the fact that one of them is evidently mistaken in fixing the time of a particular conversation. They stand, however, with the other witnesses testi- fying to similar facts, and are uncontradicted by any other person; and the committee can come to no other conclusion than that the facts thus stated by these witnesses are substantially and fully proved, even if the testimony of these two witnesses should be excluded. The second finding of the committee is proved partly by the declaration of most of these same witnesses, and partly by the distinct and unqualified declaration of the Sen- ator himself to the committee. The same thirteen witnesses above named, in their let- ter of the 2ist November, 1861, say: ‘‘He (the Senator from Oregon) has openly avowed his sympathies for the South, declaring the Government disrupted, and openly express- ing his admiration for the constitution of the Confederate States, and advocating the absorption of the loyal States of the Union into the Southern Confederacy under that constitution as the only means of restoring i This, these witnesses say, he has done openly. The witnesses live in the same city 294 SENATE ELECTION CASES. with him, and there can be no question that they had the means of knowing the con- duct, opinions, and declarations of Mr. Stark on these matters. Mr. Hull testifies, on the 18th November, 1861, that some time after the month of February, 1861, the precise time he does not mention, he heard Mr. Stark say: ‘‘ The United States forces may fight the South from one end of their government to the other, but it will amount to nothing; they will close up behind them, and they cannot be conquered. The South is fighting in a good cause, for government and order, and they cannot be conquered.’’ Henry Law, on the 20th November, 1861, says he has heard the said Stark say that he was a secessionist, and all his sympathies were for the South. John M. Breck, on the 21st of November, 1861, deposes that he and Mr. Stark live in the same place, and that he is personally acquainted with him; that just after the news of the reverses of the national armies at Bull Run, the affiant being at the time stand- ing at the entrance of the Bank Exchange in the city of Portland, did then and there distinctly hear and see the said Benjamin Stark drink a toast in company with a well- known secessionist, to the following effect, viz: ‘‘Beauregard,’’ or ‘‘ Beau-Regard;’’ that he cannot certainly say that the said Stark alluded to the notorious rebel of that name, is such was his understanding, never having previously heard said Stark use the latter phrase. It is due to the Senator from Oregon to state that on referring to this testimony before the committee he declared that it was not true. He did not, however, say that the witness was not a truthful man, and worthy of belief under oath, but that he was mis- taken, or misunderstood what was said. That he might have drank the toast with some one, and have said, ‘‘ My regards to you, sir,’’ and that expression been taken for what the witness testifies. But the committee deem it proper to remark, in justice to the witness and to truth, that the witness says ‘‘he did then and there distinctly hear and see the said Stark, in company with a well-known secessionist, drink the toast,’’ &c. And here is presented a touchstone for ascertaining the truth of the witness’s statement. The witness says he drank this toast with a well-known secessionist—and with such a person, the committee submit, he would be likely to drink it if he drank it at all—and this person would know whether or not Mr. Breck is correct in his statement. Mr. Stark had it in his power, and at his option, without expense to him, to have summoned Breck before the committee, and inquired of him who the person was with whom he, Mr. Stark, drank the toast. He then could have summoned that person before the committee and ascertained the truth or falsity of Mr. Breck’s statement. Yet this he entirely failed or neglected to do, not because he was unaware of the importance of the testimony, for his attention was attracted to it, and he had taken pains himself to deny it. This testimony, therefore, is entitled to credibility, for the Senator had the means placed at his power of overthrowing it if incorrect, and failed to doso. If, then, this statement of Mr. Breck’s be true, how completely and to what extent does it show the sympathies of the Senator were with the rebels! How full of disloyalty must have been the heart of the Senator to the Union cause, thus, in company with a well-known secessionist, exultantly to drink a toast to the man who had planted the batteries against and breached the fortifications of his own Government—and such a Government! and who led a host which slaughtered his fellow-citizens, mutilated their dead bodies, and struck with traitorous swords at the heart of the country? Thirty-one other witnesses, whose names the committee have, say that Mr. Stark is well known and reputed to be an open and avowed friend of the Southern Confederacy as against the Union. Peter Smith, on the 21st of November, 1861, deposes that Mr. Stark maintained be- fore him that any State had a right to secede from the rest of the Union, * * * and there was no constitutional right to coerce them into submission. On the 29th of January, 1862, Joseph Lane appeared before the Judiciary Committee of the Senate and testified that in a conversation with Bishop Scott he heard Mr. Stark say that his sympathies were with the South, and that they were right. He does not undertake to give the precise words of the conversation, which occurred in June, 1861. This witness Mr. Stark had the opportunity of cross-examining, and here again he had the opportunity, if Mr. Lane had been mistaken, to have corrected him. He might have called Bishop Scott before the committee and inquired if he had any such conversation with Mr. Stark or heard him make any such declarations, but he neglected entirely the opportunity of ascertaining the truth or of contradicting the testimony against him. The committee, however, did not rely entirely upon the testimony of witnesses for this finding. Mr. Stark in the presence of the committee, at one of their meetings, distinctly admitted and said that now he would be willing that the loyal States should be absorbed under the confederated constitution for the sake of peace. The committee were equally pained and surprised at such an expression, but could not fail to perceive how pungent a force it gave to much of the testimony against him; nor could they fail to come to the conclusion, however disagreeable. BENJAMIN STARK. 295 ‘< Thirdly. That the Senator from Oregon is disloyal to the Government of the United tates. If the first two findings of the committee be correct and the testimony of the wit- nesses be received and credited, this third finding results almost as a matter of necessity. The Southern Confederacy is the work of rebellion; those who formed it are in arms against the Government of the United States. Its constitution is the product of trea- son. It is antagonistic, inconsistent, and hostile to the Government of the Union. If rebellion be successful and the Southern Confederacy be established, the Government of the United States must be overthrown and destroyed in nearly one-half its legitimate jurisdiction. Those, therefore, who advocate and support the course of the Southern Confederacy must be deemed opposed to the Government of the United States and dis- loyal thereto. The truly loyal citizen cannot desire and will not permit a rebellion in any of the States to succeed. Success to the one is the disruption, overthrow, and de- feat of the other; especially when the two sections are in arms will the true citizen give all his sympathies, his efforts, and his prayers to the maintenance of a Government which has diffused its blessings so bounteously and so widely as ourown. There may be some excuse or palliation for those who, living in rebellious States, are swept away or absorbed by the terrible events there occurring; but there certainly can be none for one who, like the Senator from Oregon, remote from the scene of strife, voluntarily, among a people disposed to be loyal, thus sympathizes with and advocates the cause o rebellion. , By disloyalty the committee mean the want of fidelity to his allegiance to the coun- try, and a disregard of the duty he owes her in this her hour of need and peril. Now, if it be loyal to advocate the cause of the seceded States, then the Senator from Oregon may be loyal. If it be loyal to sympathize with the rebels, to declare that they are right, and cannot be coerced; to desire for them peace, that they may perfect and carry out their schemes, then may the Senator from Oregon be loyal. If it be loyal not only to express an admiration for the constitution which the rebels have adopted to combine their strength, and make it effectual for the permanent disruption of the American Union and the permanent establishment of their own confederacy, but also to desire the absorption of the other States under it, thus, so to speak, nationalizing treason and making the Government succumb to treason, rather than treason to the Government, then may the Senator from Oregon be loyal. If it be loyal, when the President called for volunteers to save the capital from seizure and suppress rebellion, discouragingly to assert that the United States could not support an army of thirty thousand men, nor would the people sustain the Administration in trying to put down the rebellion; if it be loyal, when the fortifications of the country are battered down by the cannon of domestic foes, and our soldiers are defeated, put to rout and slain, and their dead bodies mutilated and buried, ‘‘to drink the health” of the traitor who led the host that perpetrated these enormities, then may the Senator from Oregon be loyal. But if, as the committee think, such conduct and declarations, at the time when the Government was accepting war as a dire necessity, and struggling for its very existence, could only proceed from a heart sadly and wickedly inclined to sympathize with trea- son, and show itself false to every duty and deaf to every call of patriotism, then is the finding of the committee fully warranted by the evidence. ‘*No man can serve two masters.’? Sympathy with rebellion must shut out patriot- ism from the heart. It can only exist where the other is not. No man can be true to his country who would do or say aught to aid a conspiracy so wicked, so malignant, so remorseless, and so traitorous as the present rebellion. The Senator from Oregon cannot be ignorant of the aim and design of the seceding States. They confederated together to break up the Federal Government. They openly proclaimed their determination; and if the Senator aided them by word or deed, he did it with a full knowledge that it was a blow at his country’s existence. The committee do not forget that it is asserted by the Senator that many of the papers referred to the committee are from his bitterest political enemies; and did the findings of the committee rest upon such papers alone, much consideration should be given this statement. But, turning from these papers of his political enemies to the Senator’s own letter to the Democratic mass convention held in Linn County, Oregon, June 5, 1861, the com- mittee find sad evidence of the same spirit animating the contents and dictating the expressions. ‘‘ Civil war cannot avert disunion;” ‘‘Subjugation cannot prolong the Union;’’ ‘‘To subjugate the South, were that even possible, would be the establishment of a military despotism,’’ are exnressions found in this letter,and so marvelously like many of those attributed by the witnesses to the Senator that there is no difficulty in believing that they all belong to the same family and have a common parent. And they all are calculated to encourage the rebellion, and discourage the efforts to suppress it. Who- ever may read this letter, mutilated as it is, keeping in mind that it was written about 296 SENATE ELECTION CASES. the time he is said to have uttered the expressions attributed to him by the witnesses, willthe more readily believe that the statement of the witnesses closely accords with the evidence furnished by the Senator himself. Indeed, this letter of June, 1861, and the statement of the Senator to the committee have added much to the weight of the other proof. The first tallies in sentiment and spirit with the witnesses; the other, though made when the Senator was under an accu- sation of disloyalty in papers referred to the committee upon his own motion, and though the committee. by inviting that statement intended to give the Senator an opportunity to express his sympathy with his suffering country and menaced Govern- ment, and to remove so far as he could in that way any impiachment of his loyalty, is as barren of all such expressions asa billof indictment. Theit is not in it a paragraph, nor a sentence, nor a line such as must spontaneously have burst out from a loyal heart under such an accusation. True, he speaks of being entitled to the presumptions of loy- alty, but there is no manly declaration of any determination to stand by the country in weal or woe or to give life or fortune or any assistance whatever to her requirements. In Oregon he was frequent and open in his expressions of sympathy for the rebels. He was, say the witnesses, the advocate of their cause. But here he isas silentas the grave. Though accused of disloyalty, though the country ‘‘bleeds at every pore,’’ though she imploringly raises her hands to him in his high place for aid and succor—he has never a word in his statement, nor an expression, sentence, or line from which a drop of sym- pathy can be wrung, unless it be in his assertion that ‘‘ in every respect their declarations are unjust to my real sentiments and at variance with the whole tenor of my life.”’ What those sentiments are he does not tell us, nor have the committtee any means of knowing by any evidence before them. If he had declared them to the committee, asserting his loyalty to the Government, the committee would have given him the full benefit of them; and perhaps they might have gone far to have removed the unfavorable conclusions to which the committee have come. But in the absence of any such decla- rations the committee could only pass on the evidence that was before them, giving him the full benefit of every presumption that can arise in his favor, and of every de- duction that should be made for a conflict of testimony. ‘*He that is not for us is against us’’ are the words of inspiration, and never more applicable than on occasions like the present. Itis quite true the Senator was under no obligation to use any such expressions in his statement, but the committee cannot but believe that had the feelings existed which would have prompted them they could not have been confined in a patriotic heart—they would have found expression. Upon taking his seat in the Senate, the Senator took the oath to support the Consti- tution of the United States; and it may be objected he would not have done so if not loyal to the Government. What were the reservations, what the limitations or inter- pretations, with which the Senator took that oath the committee do not inquire; for the Senator does not assert that his feelings and views have changed since the witnesses testified. He does not pretend that he is more loyal now than when he declared his sympathies were with the South, that they were right and could not be coerced. And the committee remember and know that in their presencg, since the taking of that oath, and since the institution of this inquiry, the Senator bottily and without condition de- clared he would be willing the loyal States should be absorbed under the constitution of the Confederacy for the sake of peace—that is, that the Constitution of our fathers, which he had just sworn to support, should be cast out of its rightful inheritance by this bastard sprout of a gigantic rebellion, which should ‘‘ reign in its s of Could the traitors desire more, to wit, peace and the adoption of their government? It is the aim of their efforts; their avowed intent and purpose. No man can yield it, unless compelled by dire necessity, and not be liable to an impeachment of his loyalty. All true lovers of the country desire peace, but he who would seek it through its destruction and overthrow must be either a craven or disloyal citizen. The committee are, therefore, compelled to dismiss this consideration, and adopt the foregoing findings; adding that the appearance of the Senator before the committee, his singular declarations, statements, and conduct, have done much to strengthen the last conclusion of the committee. Itwould have been far pleasanter to them not to have done so, and they hoped, upon entering upon this investigation, the Senator would have made such proofs and state- ments as would have removed from him all suspicion of disloyalty. But he has failed to do so, and the duty was left to the committee to judge only upon what was before them. From that duty there could be no shrinking in a time like this; and the com- mittee have endeavored to discharge it thoroughly and fearlessly, and now submit their conclusions to the Senate. DAN’L CLARK. J. M. HOWARD. JOSEPH A. WRIGHT. JOHN SHERMAN. BENJAMIN STARK. 297 Concurring in the first two conclusions of the majority of the committee, I am yet con- strained, not without hesitation, to differ with them in their third and last conclusion. Distrusting all ex parte testimony, especially in regard to expressions uttered in the heat of high political excitement, seeing that the sentiments and opinions thus attributed to Mr. Stark are virtually denied and repudiated by him in his written statement before the committee; remembering that since it is alleged those conversations took place, and those expressions were uttered, Mr. Stark, in taking his seat as a Senator, has purged himself of these sinister allegations by taking the oath to support the Constitution of the United States, and especially fearing the danger of making mere difference of opinion, however wide and fundamental, a test of fidelity to the Government, I am not prepared to say that Mr. Stark is now disloyal. W. J. WILLEY. : WEDNESDAY, Vay 7, 1862. Mr. Sumner submitted the following resolution for consideration: “* Resolved, That Benjamin Stark, a Senator from Oregon, who has been found by a committee of this body to be disloyal to the Government of the United States, be, and the same is hereby, expelled from the Senate.”’ é Ser debate is found on page 1983 of the Congressional Globe, part 3, 2d sess. 37th ong. FRIDAY, June 6, 1862. On motion by Mr. Sumner that the Senate proceed to the consideration of the reso- lution submitted by him for the expulsion of the Hon. Benjamin Stark from the Senate, it was determined in the negative— yeas 16, nays 21. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Chandler, Clark, Foot, Grimes, Har- lan, Howe, Lane of Kansas, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright. Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Carlile, Cowan, Davis, Dixon, Fessenden, Foster, Hale, Harris, Kennedy, Latham, McDougall, Nesmith, Powell, Rice, Saulsbury, Simmons, Ten Eyck, and Willey. 298 SENATE ELECTION CASES. [Thirty-eighth Congress and first session Thirty-ninth Congress. ] WILLIAM M. FISHBACK, ELISHA BAXTER, anp WILLIAM D. SNOW, of Arkansas. May 21, 1864, the credentials of Mr. Fishback, elected to fill the unexpired term, ending March 3, 1865, of William K. Sebastian, expelled, were presented; and May 31 the credentials of Mr. Baxter, elected to fill the unexpired term, ending March 3, 1867, of Charles B. Mitchell, expelled, were pre- sented. June 13, the oath of office not having been administered, their credentials were referred to the Committee on the Judiciary. At the same time a joint resolution for the recognition of the free State government of the State of Arkansas, which had been presented to the Senate June 10, was referred to the committee. June 27, the committee reported in regard to the election of the Senators substantially as follows: August 16, 1861, the President had declared the inhabitants of Arkansas, except those of such parts thereof as should maintain a loyal adhesion to the Union, or might be from time to time occupied and controlled by United States forces, to be in a state of in- surrection. At the date of the proclamation no part of the State was occupied and controlled by forces of the United States, nor did the inhabitants of any part of the State publicly maintain a loyal adhesion to the Union. Hence at that time a state of civil war existed between the inhabit- ants of Arkansas and the United States, and there was not then any organized authority competent to elect Senators of the United States. Itis claimed, however, that since that period the greater portion of the State has been thus occupied, and that the inhabitants, loyal to the Union, have reorganized their State government, and have a right through their legislature to choose Senators. The question to be determined by the Senate is, Was the body electing Messrs. Fishback and Baxter the legislature of Arkansas? Less than one-fourth of the number of persons who voted for President in 1860 took part in the reorganization of the State government. This, however, would not be fatal to the reorganization if the State was free from military control, which is not the case. At the time the claimants were elected, and at this time, the State is occupied by hostile armies. While this state of things continues, and the right to exercise armed authority is claimed and ex- erted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union. When the rebellion shall have been so far suppressed in the State that the loyal inhabitants thereof shall maintain a State government by the aid of and not in subordination to the military, they shall then and not before be entitled to representation in Congress. The committee recommend the adoption of the follow- ing resolution: ‘‘ Resolved, That William M. Fishback and Elisha Baxter are not,entitled to seats as Senators from the State of Arkansas.” This resolution passed the Senate June 29, 1864, by a vote of 27 yeas to 6 nays. The joint resolution above referred to was reported adversely at the same time that the report on the credentials was presented. In the next session of Congress a similar joint resolution was sub- mitted and referred to the same committee, but was not reported. The proceedings of the Senate relating to these joint resolutions are not included in the extracts given below. March 7, 1865, the credentials of Mr. Snow, elected for the term succeeding that for which Mr. Fishback had been elected, were presented and referred to the Committee on the Judiciary. The committee recommended that the question be postponed to the next session, and until Congress should take action in regard to the recognition of the alleged eve State government in Ark- ansas. No action was taken. February 26, 1866, the credentials of Messrs. Baxter and Snow having been taken from the files of the Senate, a motion was made that they be referred again to Hie coe It was ordered that they lie on the table. No further action was taken on the credentials. The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, 38th Cong. and Ist sess. 39th Cong.; the report of the committee on on the credentials of Messrs. Fishback and Baxter from Senate Reports, Ist sess. 38th Cong. (No. 34); the report on the credentials of Mr. Snow from Senate Reports, 2d sess. 38th Cong. (No. 1, special session); also the proceedings of the Senate from the Journals relating to the payment of mileage to the claimants, Special references to the debates of each day are inserted below. [First session of the Thirty-eighth Congress. ] CREDENTIALS OF MESSRS. FISHBACK AND BAXTER. SATURDAY, May 21, 1864. Mr. Lane, of Kansas, presented the credentials of the Hon. William M. Fishback, elected a Senator of the United States by the legislature of the State of Arkansas to fill the unexpired term of the Hon. William K. Sebastian, who was expelled by a resolution of the Senate of July 11, 1861; which were read. On motion by Mr. Conness that the credentials be referred to the Committee on the Judiciary. Ordered, That the further consideration thereof be postponed to to-morrow. FISHBACK, BAXTER, AND SNOW. 299 WEDNESDAY, May 25, 1864. The Senate resumed the consideration of the motion submitted by Mr. Conness, the 21st instant, to refer the credentials of the Hon. William M. Fishback to the Committee on the Judiciary; and - _On motion by Mr. Fessenden, Ordered, That the further consideration thereof be postponed to to-morrow. sa a is found on pages 2458, 2459 of the Congressional Globe, part 3, 1st sess. ‘ong. TuESDAY, May 31, 1864. Mr. Foot presented the credentials of the Hon. Elisha Baxter, elected a Senator of the United States by the legislature of the State of Arkansas to fill the unexpired term of the Hon. Charles B. Mitchell, who was expelled by a resolution of the Senate July 11, 1861. The credentials were read. Ordered, That they lie on the table. Monpay, June 13, 1864. On motion by Mr. Lane, of Kansas, that the joint resolution, together with the cre- dentials of the Hon. William M. Fishback and the Hon. Elisha Baxter, Senators-elect from the State of Arkansas, be referred to the Committee on the Judiciary. * * * * * * * On the question to agree to the motion of Mr. Lane, of Kansas, After debate, On motion by Mr. Wade that the joint resolution and the credentials lay on the table, it was determined in the negative—yeas 5, nays 32. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the Senators present, « Those who voted in the affirmative are Messrs. Chandler, Howard, Richardson, Sum- ner, and Wade. Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Clark, Con- ness, Davis, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Hendricks, Howe, Johnson, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Morrill, Pomeroy, Powell, Ramsey, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Wilkinson, Willey, and Wilson. i On the question to agree to the motion of Mr. Lane, of Kansas, it was determined in the affirmative. So it was Ordered, That the joint resolution, with the credentials of the Hon. William M. Fish- back and the Hon. Elisha Baxter, be referred to the Committee on the Judiciary. * * * * * * * Mr. Lane, of Kansas, presented a proclamation of Major-General Steele, commanding the Department of Arkansas, declaring that peace has been so far restored in Arkansas as to enable the people to institute proceedings for the restoration of the civil government, and issuing regulations for an election to be held for the adoption or rejection of the State constitution adopted by the convention of citizens of that State; which was referred to the Committee an the Judiciary, and ordered to be printed.* [The debate is found on pages 2895-2907 of the Congressional Globe, part 3, 1st sess. 38th Cong. | TUESDAY, Jume 21, 1864. Mr. Lane, of Kansas, presented a lettert of William M. Fishback, addressed to him, giving a detailed account of his conduct during the present rebellion, and defending himself against charges of disloyalty; which were referred to the Committee on the Ju- diciary, and ordered to be printed. . Monpay, June 27, 1864. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. William M. Fishback and the Hon. Elisha Baxter, elected Senators of the United States by the legislature of the State of Arkansas, submitted a report (No. 94), accompanied by the following resolution: ‘ Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas.”’ On motion by Mr. Trumbull, Ordered, That the report be printed. *This proclamation is found in Senate Miscellaneous, Ist sess. 88th Cong., No. 124. + This letter is found in Senate Miscellaneous, Ist sess, 88th Cong., No. 129. 300 SENATE ELECTION CASES. REPORT OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Harris, Howard, Bayard, and Powell.] IN THE SENATE OF THE UNITED STATES. JUNE 27, 1864.—Ordered to be printed. Mr. Trumbull submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of William M. Fishback and Elisha Baxter, claiming seats from the State of Arkansas, report: That the credentials presented are in due form, purporting to be under the seal of the State of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right to seats were to be determined by an inspection of the credentials Messrs. Fishback and Baxter would be entitled to be sworn as membersof this body. It is, however, admitted by the persons claiming seats, and known to the country, that in the spring of 1861 the State of Arkansas, through its constituted authorities, undertook to secede from the Union, set up a government in hostility to the United States, and maintain the same by force of arms. Congress, in view of the condition of affairs in Arkansas and some other States similarly situated, passed an act July 13, 1861, authorizing the President, in case of an insurrection in any State against the laws of the United States, and when the insurgents claimed to act under the authority of the State, and such claim was. not re- pudiated, nor the insurrection suppressed by the persons exercising the functions of government in such State, to declare the inhabitants of such State, or part thereof where such insurrection existed, to be in a state of insurrection against the United States; and that thereupon all commercial intercourse by and between the same and the citizens of the United States, except under license and upon certain conditions, shonld cease and be unlawiul so long as such condition of hostility should continue. In pursuance of this act the President, August16, 1861, issued his proclamation declaring the inhabitants of the State of Arkansas, except the inhabitants of such parts thereof as should maintain a loyal adhesion to the Union and the Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents, to be in a state of insurrection against the United States, and that all commercial intercourse between them and citizens of other States was and would be un- lawful, except when carried on under special license, until such insurrection should cease. At the date of this proclamation no part of the State of Arkansas was occupied and controlled by the forces of the United States, nor did the inhabitants of any part of the State at that time publicly maintain a loyal adhesion to the Union and the Consti- tution. Hence, upon the issuing of said proclamation, a state of hostility or civil war existed between the inhabitants of the State of Arkansas and the United States, and there was not at that time any organized authority in Arkansas, loyal to the Constitu- tion, competent to choose or appoint Senators of the United States. It is claimed, how- ever, that since that period the State, or the greater portion of it, has been occupied and controlled by the forces of the United States engaged in the dispersion of the in- surgents, and that the inhabitants of said State, loyal to the Union and the Constitution, have reorganized their State government, and have the right, through the legislature they have instituted, to choose two Senators for said State. The Constitution declares that ‘‘the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years,’’ and makes each House ‘‘ the judge of the election, returns, and qualifications of its own members.’’ In the investigation of the claimants’ right to seats the first question to be determined is, Was the body by whom they were elected clothed with authority to elect Senators; in other words, was it, in a constitutional sense, ‘‘the legislature of Arkan- sas? A question similar to this arose some years since between Robbins and Potter, each claiming to have been elected Senator by the legislature of Rhode Island, though by different bodies. In that case the Senate was called upon to decide, and did decide, which of the two bodies, each claiming to be legitimate, was the legislature contem- plated by the Constitution. The Supreme Court of the United States, in the case of Luther vs. Borden, growing out of the political difficulties in Rhode Island in 1841 and 1842, held that ‘‘when the Senators and Representatives of a State are admitted into the councils of the Union the authority of the government under which they are ap- pointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government,” The claimants laid before the committee a statement of the circumstances attending FISHBACK, BAXTER, AND SNOW. 301 the assembling of the body by which they were elected, in which, after detailing the condition of the State while under rebel control, and prior to September, 1863, they say: “Upon the advent of the Union army the rebels in the State, guerrillas and all, forthe most part left with their armies, leaving about two-thirds of the State comparatively free from guerrilla depredation. ‘“The Union men came flocking from the mountains, where they had lain for two years, to the Federal standard, and nearly every man whom the medical examiners would re- ceive joined the Federal army. ‘Those who were rejected (and their number was enormous, their constitutions hav- ing been broken by exposure and their hardships), and those whom circumstances pre- vented from joining the army, found themselves, so far as law was concerned, in a state of chaos. Many of them, living remote from military posts, had not even the protection of military law. : ‘* Immediately they began to agitate the question of a reorganization of their State government. They first moved in primary meetings, and on the 30th of October, 1863, they held a mass meeting in the city of Fort Smith, in which some twenty counties are said to have been represented, and at which they called upon all the counties in the State to elect delegates (after having elected commissioners of election) to a State convention, to be held in the city of Little Rock on the 8th day of January, 1864, for the purpose of so amending the constitution as to abolish slavery. Simultaneously with this meeting meetings were held in a number of other counties. In every single one (in ignorance of the action of others in many instances) they declared for a convention and for the aboli- tion of slavery. ; ‘‘Commissioners of election were first elected, and they held the elections for the delegates. ‘¢ All this was prior to the President’s amnesty proclamation. ‘When the convention met forty-five delegates were present, represénting about one-half of the State. (Several of the delegates failed to attend.) They repudiated the rebel debt, State and Confederate, abolished slavery, and submitted the constitution tothe people for their ratification. They also provided for taking the vote for State and county officers and members of the legislature at the same time with the vote for the ratification of the constitution. “The result of those elections was 12,177 for the constitution and 226 against it, an election of State and county officers, an election of delegates to the lower house of Con- gress, and a representation in the State legislature from forty-six of the fifty-four coun- ties of the State.’’ The number of persons in Arkansas who voted for President in 1860 was 54,043, less than one-fourth of whom, as appears from the statement of the claimants, took part in the reorganization of the State government. This, however, would not be fatal to the reorganization, if all who were loyal to the Union had an opportunity to participate, and the State was free from military control. Such, however, is understood not to have been the case. The President had not then, nor has he up to this time, recalled his proclamation, which declared the inhabitants of Arkansas in a state of insurrection against the United States, nor was there any evidence before the committee that said insurrection had ceased or been suppressed. At the time when the body which chose the claimants was elected, when it assembled, and at this time, the State of Arkansas is occupied by hostile armies, which exercise supreme authority within the districts subject to their control. While a portion of Arkansas is at this very time, as the com- mittee are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of things continues, and the right to exercise armed authority over a large part of the State is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union. When the rebellion in Arkansas shall have been so far suppressed that the loyal in- habitants thereof shall be free to re-establish their State government upon a republican foundation, or to recognize the one already set up, and by the aid and not in subordi- nation to the military to maintain the same, they will then, and not before, in the opin- ion of your committee, be entitled to a representation in Congress, and to participate in the administration of the Federal Government. Believing that such a state of things did not at the time the claimants were elected, and does not now, exist in the State of Arkansas, the committee recommend for adoption the following resolution: Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas. 302 SENATE ELECTION CASES. WEDNESDAY, June 29, 1864. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary, declaring that William M. Fishback and Elisha Baxter are not entitled to seats as Senators.elect from the State of Arkansas. On motion by Mr. Wade to postpone the further consideration of the resolution to to-morrow, and that the Senate proceed to the consideration of the bill (H. R. 244) to guarantee to certain States whose governments have been usurped or overthrown a republican form of government, it was determined in the negative—yeas 5, nays 28. On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators present, y Those who voted in the affirmative are Messrs. Clark, Harlan, Lane of Kansas, Sher- man, and Wade. Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Carlile, Chandler, Conness, Cowan, Davis, Fessenden, Foot, Foster, Grimes, Harris, Hendricks, Hicks, Howe, Johnson, McDougall, Morgan, Powell, Ramsey, Riddle, Sumner, Ten Eyck, Trumbull, Van Winkle, Willey, and Wilson. After debate, On the question to agree to the resolution, it was determined in the affirmative— yeas 27, nays 6. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Carlile, Chandler, Clark, Cowan, Davis, Fessenden, Foot, Foster, Hale, Harlan, Harris, Mc- Dougall, Morgan, Morrill, Powell, Ramsey, Riddle, Saulsbury, Sherman, Sumner, Ten Eyck, Trumbull, Wade, and Wilkinson. Those who voted in the negative are Messrs. Doolittle, Hicks, Howe, Lane of Kansas, Nesmith, and Pomeroy. So it was Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas. [The debate is found on pages 3360-3368 of the Congressional Globe, part 4, Ist sess. 38th Cong. ] [Special session of Senate, March, 1865.] CREDENTIALS OF MB. SNOW. TUESDAY, March 7, 1865. Mr. Lane, of Kansas, presented the credentials of the Hon. William D. Snow, elected a Senator by the legislature of the State of Arkansas for the term of six years commencing on the 4th day of March, A. D. 1865. Objection to the reception of the credentials being made by Mr. Howard, The President pro tempore submitted the question to the decision of the Senate; and, on the question, Shall the credentials be received? After debate, and the consideration of executive business, the Senate adjourned. [The debate is found on pages 1427-1429 of the Congressional Globe, part 2, 2d sess. 38th Cong. ] WEDNESDAY, March 8, 1865. The Senate resumed the consideration of the credentials of the Hon. William D. Snow, yesterday presented by Mr. Lane, of Kansas, the reception of which was objected to by Mr. Howard; and After debate, Mr. Howard having withdrawn his objection to their reception, On motion by Mr. Lane, of Kansas, Ordered, That the credentials be referred to the Committee on the Judiciary. ee See is found on pages 1429-1432 of the Congressional Globe, part 2, 2d sess. 38th Cong. THURSDAY, March 9, 1865. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of William D. Snow, claiming to have been elected a Senator, commencing on the 4th day of March, 1865, submitted a report (No. 1), recommending that the further consideration of the subject be postponed to the next session of Congress. Ordered, That the report be printed. FISHBACK, BAXTER, AND SNOW. 303 REPORT OF COMMITTEE. [ The committee consisted of Messrs. Trumbull (chairman), Harris, Collamer, Sherman, Johnson, Williams, and Hendricks. | IN THE SENATE OF THE UNITED STATES. MAgkcH 9, 1865.—Ordered to be printed. Mr. Trumbull submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of William D. Snow, claiming to have been elected a Senator from the State of Arkansas for six years from the 4th of March instant, report: That, in the year 1861, the constituted authorities of the State of Arkansas undertook to withdraw that State from the Union, and so far succeeded in the attempt as by force of arms to expel from the State for a time the authority of the United States, and set up a government in hostility thereto, and, in pursuance of an act of Congress, the inhabit- ants of said State have since been declared to be in a state of insurrection against the United States. The committee therefore recommend that the question of the admission of Mr. Snow to a seat be postponed to the next session of Congress, and until Congress shall take action in regard to the recognition of the alleged existing State government in Arkansas. [First session of the Thirty-ninth Congress. ] CREDENTIALS OF MESSRS. BAXTER AND SNOW. Monpay, February 26, 1866. A motion was made by Mr. Lane, of Kansas, that the credentials of Elisha Baxter and William D. Snow, as Senators-elect from the State of Arkansas, be taken from the files of the Senate, and that they be referred to the Committee on the Judiciary. A division of the question was called for by Mr. Clark; and, On the question to agree to the first branch of the motion, to wit, that the credentials of Elisha Baxter and William D. Snow as Senators-elect from the State of Arkansas be taken from the files of the Senate, it was determined in the affirmative; and, On the question to agree to the second branch of the motion, to wit, and that they be referred to the Committee on the Judiciary, On motion by Mr. Clark that the credentials lie on the table, it was determined in the affirmative—yeas 29, nays 17. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of ‘Indiana, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. ’Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, Johnson, Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- bury, Stewart, Stockton, and Van Winkle. So it was Ordered, That the credentials lie on the table. * * * * * * * A motion was made by Mr. Lane, of Kansas, to admit the Senators-elect from the State of Arkansas to seats on the floor of the Senate. On motion by Mr. Wade that the motion of Mr. Lane, of Kansas, lie on the table, it was determined in the affirmative—yeas 27, nays 18. On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Poland, Ramsey, Sherman, Sumner, Trumbull, Wade, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Hendricks, Johnson, Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- bury, Stewart, Stockton, Van Winkle, and Willey. So it was Ordered, That the motion lie on the table. [The debate is found on pages 1025~1027 of the Congressional Globe, part 2, 1st seas. 39th Cong. ] : 304 SENATE ELECTION CASES. LITLEAGE TO CLAIMANTS. [First session of the Thirty-eighth Congress. | WEDNESDAY, June 29, 1864. Mr. Trumbull asked, and by unanimous consent obtained, leave to submit the follow ing resolution: ‘ Resolved That the Secretary be instructed to pay, out of the contingent fund of the Senate, the usual mileage of Senators to Elisha Baxter and William M. Fishback, respect- ively, as claimants for seats in the Senate from Arkansas, at the first session of this Congress. ’’ The said resolution was read the ‘first and second times, by unanimous e~esent, and considered as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read the third time by unanimous consent. Resolved, That it pass [Serond session of the Thirty-eighth Congress. ] FRIDAY, March 3, 1839. Mr. Lane, of Kansas, submitted the following resolution for consideration: “ Resolved, That the Secretary be instructed to pay out of the contingent fand of the Senate the usual mileage to Elisha Baxter and William M. Fishback, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the second session of this Congress.” [Special session of Senate, March, 1865. ] Monpay, March 6, 1865. Mr. Lane, of Kansas, submitted the following resolution for consideration (the same that was submitted March 3). WEDNESDAY, March 8, 1865. On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution submitted by him on the 6th instant, to pay mileage to certain claimants to seats in the Senate from the States of Arkansas and Louisiana; and ‘ The resolution having been modified, on the motion of Mr. Lane, of Kansas, to read as follows: ‘Resolved, That the Secretary be instructed to pay out of the contingent fund of the Senate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the second session of the last Congress,’’ Ordered, That the resolution be referred to the Committee to Audit and Control the Contingent Expenses of the Senate. THURSDAY, March 9, 1865. Mr. Morrill, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred a resolution to pay to certain persons claiming seats in the Senate as Senators from Arkansas and Louisiana the mileage of Senators from those States, reported the resolution without amendment, and submitted a report thereon, ask- ing that the committee be discharged from its further consideration. BEPORT OF COMMITTEE.* [The committee consisted of Messrs. Morrill, Ramsey, and Henderson. ] The Committee on the Contingent Expenses of the Senate, to whom was referred a resolution that the Secretary be instructed to pay out of the contingent fund of the Sen- ate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the second session of the last Congress, having attentively considered the same, report that the committee conceive their authority to be limited by Jaw to the auditing of accounts * Taken from the Congressional] Globe, part 2, 2d sess. 88th Cong., page 1435. FISHBACK, BAXTER, AND SNOW. 305 for the ordinary contingent expenses of the Senate, and that mileage is payable only to Senators as members of Congress, and not as claimants for seats in the Senate, without an express order of the Senate. The terms of the resolution exclude the inference that the mileage therein contemplated is either ordinary contingent expenses of the Senate or mileage of Senators—-members of Congress. Not regarding the resolution in the nature of an order of the Senate to the committee to audit the mileage of the claimants, and failing to perceive any authority of law for allowing it, they report the resolution back to the Scnate, and respectfully ask to be discharged from its further consideration. FRIDAY, March 10, 1865. On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution to pay out of the contingent fund of the Senate to certain persons claiming to be Senators duly elected from the States of Arkansas and Louisiana the mileage of Senators from those States; and, After debate, On motion by Mr. Wilson that the Senate proceed to the consideration of executive business, it was determined in the affirmative—yeas 24, nays 12. On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Chandler, Conness, Cragin, Creswell, Davis, Foot, Grimes, Guthrie, Howard, Johnson, Lane of ee Morgan, Norton, Nye, Riddle, Sprague, Stewart, Sumner, Wade, Wilson, and right. Those who voted in the negative are Messrs. Collamer, Dixon, Doolittle, Foster, Har- ris, Lane of Kansas, Pomeroy, Trumbull, Van Winkle, Willey, Williams, and Yates. So the motion was agreed to. [rhe a is found on pages 1436-1440 of the Congressional Globe, part 2, 2d sesa. 38th Cong. S. Doc. 11——20 306 SENATE ELECTION CASES. [Thirty-eighth Congress—Second session. ] R. KING CUTLER anp CHARLES SMITH, anp MICHAEL HAHN, of Louisiana. December 7, 1864, the credentials of Mr. Cutler, elected to succeed Mr. Slidell, whose term had ex- pired March8, 1861, and thecredentials of Mr. Smith, elected to fill the unexpired term, ending March 3, 1865, of Mr. Benjamin, retired, were presented. Atthe sametime there was presented a memorial of citizens of Louisiana remonstrating against their admission toseatsin the Senate. Thecredentials and memorial were referred to the Committee on the Judiciary. Janugry 11, 1865, the committee reported that the claimants were duly elected, and that, but for the fact that, in pursuance of an act of Congress passed July 13, 1861, the inhabitants of the State had been declared in a state of insur-. rection, which condition of things had not ceased at the time of the reorganization of the State gov- ernment and the election of the claimants, they would recommend their immediate admission to their seats; that the inhabitants of the State having been declared in a state of insurrection in pur- suance of a law passed by the two Houses of Congress, the committee deemed it improper for the Senate to admit to seats Senators from Louisiana till by some joint action of both Houses there should be some recognition of an existing State government; that they-recommend the adopt on of an accompanying joint resolution that the United States recognize the State government referred to as the legitimate government of the State. This resolution was debated, but no action was taken on it,and the claimants were not admitted to seats. The proceedings of the Senate relating to the joint resolution are not included in the extracts given below. March 2, 1865, the credentials of Mr Hahn, elected for the term succeeding that for which Mr. Smith had been elected, were presented. A motion was made that they be laid on the table. Ob- jection being made to their reception, the Senate voted to lay this motion on the table. March 9, the credentials were tuken from the files and presented to the Senate, and it was ordered that the further consideration of them be postponed to the next session. No further action was taken on the credentials. : The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to the credentials of the claimants from Senate Journal, 2d sess. 38th Cong.,and the report of the committee, with the exception of certain accompanying documents, from Senate Reports, 2d sess. 38th Cong., No. 117. There were no debates in regard to the credentials of the claimants. The debates on the adop- tion of the joint resolution reported by the committee are found on pages 1011, 1061-1070, 1091-1099, 1101-1111 of the Congressional Globe, part 2, 38th Cong., 2d sess. Documents relating to the casé are found in Senate Miscellaneous, 2d sess. 38th Cong., Nos. 1,2, and 9. Mileage was not allowed to the claimants. For the proceedings of the Senate on a resolution to pay them mileage see latter part of preceding case of Fishback, Baxter, and Snow, page 246. CREDENTIALS OF MESSRS. CUTLER AND SMITH. ‘WEDNESDAY, December 7, 1864. The President pro tempore laid before the Senate a letter of the Hon. Michael Hahn, governor of the State of Louisiana, communicating the credentials of the Hon. Charles Smith and the Hon. R. King Cutler, Senators-elect from that State to the Congress of the United States, with copies of the proceedings of the general assembly of Louisiana in reference to their election; which was read. Ordered, That they lie on the table, and be printed. Mr. Morggn presented the credentials of the Hon. Charles Smith and the Hon. R. King Cutler, Senators-elect from the State of Louisiana to the Congress of the United States, with copies of the proceedings of the general assembly of Louisiana in reference to their election. Ordered, That they lie on the table. Mr. Wade presented a memorial of citizens of Louisiana remonstrating against the admission of Senators or Representatives from the pretended State of Louisiana into the Congress of the United States and the reception of any electoral vote of that State in counting the votes for President and Vice-President of the United States, and praying the passage of an act guaranteeing republican government in the insurrectionary States. Ordered, That it lie on the table and be printed. THURSDAY, December 8, 1864. On motion by Mr. Morgan, Ordered, That the credetitials of the Hon. Charles Smith and the Hon. R. King Cut- ler, Senators-elect from the State of Louisiana, and the proceedings of the legislature of that State in reference to their election, yesterday presented to the Senate, be referred to the Committee on the Judiciary. On motion by Mr. Wade, Ordered, That the memorial of citizens of Louisiana remonstrating against the ad- CUTLER AND SMITH, AND HAHN. 307 mission of Senators or Representatives from the State of Louisiana to seats in the Senate or House of Representatives, yesterday presented by him, be referred to the Committee on the Judiciary. : WEDNESDAY, January 11, 1865. Mr. Trumbull, from the Committee on the Judiciary, reported the following resolu- tion; which was considered by unanimous consent, and agreed to: “Resolved, That there be printed for the use of the Committee on the Judiciary cer- tain evidence before them relating to the right to seats of Messrs. Cutler and Smith as Senators from the State of Louisiana.’’ SATURDAY, February 18, 1865. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. Charles Smith and the Hon. R. King Cutler, elected Senators by the legislature of Louisiana, and a memorial of citizens of Louisiana remonstrating against the admission of Senators or Representatives from the State of Louisiana into the Congress of the United States, submitted a report (No. 127), accompanied by a joint resolution (S. 117) recognizing the government of the State of Louisiana. The resolution was read, and passed to a second reading. Ordered, That the report be printed. REPORT OF COMMITTEE.* [The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Harris, Foot, Powell, and Johnson. ] In THE SENATE OF THE UNITED STATES. FEBRUARY 18, 1865.—Ordered to be printed. Mr. Trumbull made the following report (to accompany joint resolution S. No. 117): The Committee on the Judiciary, to whom were referred the credentials of R. King Cutler and Charles Smith, claiming seats from the State of Louisiana, report: That in the early part of 1861 the constituted authorities of the State of Louisiana undertook to withdraw that State from the Union, and so far succeeded in the attempt as by force of arms to expel from the State for a time the authority of the United States, and set up a government in hostility thereto. Since that time the United States, as a necessity to the maintaining of its legitimate authority in Louisiana as one of the States of the Union, has been compelled to take possession thereof by its military forces, and, in the absence of any local organizations or civil magistrates loyal to the Union, temporarily to govern the same by military power. While a large portion of the State, embracing more than two-thirds of its population, was thus under the control of the military power, steps were taken with its sanction, and to some extent under its direction, for the reorganization of a State government loyal to the Government of the United States. The first action had looking to such re- organization was a registration of the loyal persons within the limits of military control entitled to vote under the constitution and laws of Louisiana at the beginning of the re- bellion. The lists thus made up contain the names of between fifteen and eighteen thousand voters, which is represented to be more than half the number of voters in the same parishes previous to the rebellion, and more than two-thirds of the voting popula- tion within the same localities at the time the registry was taken. The next step taken in the reorganization of the State government was the election of State officers on the 22d of February, 1864, under the auspices of the military authority acting in conjunction with prominent and influential citizens. At this election 11,414 votes were polled, 808 of which were cast by soldiers and sailors, citizens of Louisiana, who would not have been entitled to vote under the constitution of Louisiana as it existed prior to the re- bellion, for the sole reason that they were in the military service, but who possessed in other respects all the qualifications of voters required by that instrument. The balance, 10,606, were legal voters under the constitution of the State prior to the rebellion. The third step in the reorganization of the State government was to call a convention for the amendment of the constitution of the State. Delegates to this convention were elected March 28, 1864, under the joint and harmonious direction of the military authorities, and the State officers who had been elected on the 22d February previous. In a paper submitted to the committtee by Major-General Banks he states that delegates were ap- portioned to every election district in the State, both within and beyond the lines, so * A reference to certain documents accompanying the report and not here printed is given in the head-note. 308 SENATE ELECTION CASES. that if beyond the lines of the army the people of the State had chosen to participate in that election, the delegates might have been received if they had shown themselves loyal to the Government. ‘They were about 150in number. AlJ elections subsequent to that for delegates have been ordered and controlled by the representatives of the people. In the organization of the convention it was provided that a majority of the whole number apportioned to the State, if every district within and beyond the lines had been represented, should constitute a quorum for the transaction of business. Every vote in the convention, from a question of order to the ratification of the constitution, was con- ducted under this rule, and was approved by a majority of all the delegates apportioned to the State if every district had been represented. The delegates met in convention, in the city of New Orleans, on the 6th day of April, 1864, remained in session till July 23, 1864, and adopted a constitution, republican in form and in entire harmony with the Constitution of the United States and the great principles of human liberty. This constitution was submitted, by the convention which adopted it, to the people for ratification on the first Monday of September, 1864, and adopted by a vote of 6,836 for to 1,566 against it. At the same time the vote was taken on the adoption of the constitution a legislature was elected, representing all those parishes of the State reclaimed from insurgent control, and embracing about two-thirds of its population. This legislature assembled at New Orleans on the 3d day of October, 1864, and proceeded to put in operation a State gov- ernment by providing for levying and collecting taxes, the establishment of tribunals for the administration of justice, the adoption of a system of education, and such other measures aS were necessary to the re-establishment of a State government in harmony with the Constitution and laws of the United States. The State government thus inaugu- rated has been in succcessful operation since the period of its establishment, and your committee are assured that if no exterior hostile force is permitted to enter the State, the local State government is fully equal to the maintaining of peace and tranquillity through- out the State in subordination to the Constitution and laws of the United States. The manner in which the new State government was inaugurated is not wholly free from objection. The local State authorities having rebelled against the Government, and there being no State or local officers in existence loyal to its authority, in taking the initiatory steps for a reorganization some irregularities were unavoidable, and the num- ber of voters participating in this reorganization is less than would have been desirable. Yet, when we take into consideration the large number of voters who had left the State in consequence of the rebellion, who had fallen in battle, or were absent at the time of the election, both in the Union and rebel armies, and the difficulties attending the ob- taining of a full vote from those remaining, in consequence of the unsettled condition of affairs in the State, and the further fact that the adoption of the amended constitu- tion was not seriously opposed, and therefore the question of its ratification not calculated to call out a full vote, the number of votes cast is perhaps as large as could have been expected, and the State government which has been reorganized, as your committee be- lieve, fairly represents a majority of the loyal voters of the State. Appended hereto is a copy of the various orders and proclamations issued in regard to the election of State officers, delegates to the constitutional convention, and members of the legislature, and also a copy of election laws and instructions relative to the duties of commissioners of elections, issued for the guidance of officers in conducting said election. Messrs. Cutler and Smith, the claimants for seats, were duly elected Senators by the legislature which convened on the 3d day of October, 1864, and but for the fact that, in pursuance of an act of Congress passed on the 13th day of July, 1861, the inhabitants of the State of Louisiana were declared to be in a state of insurrection against the United States and all commercial intercourse between them and the citizens of other States de- clared to be unlawful, which condition of things had not ceased at the time of the reor- ganization of the State government and the election of Messrs. Cutler and Smith, your committee would recommend their immediate admission to seats. The persons in possession of the local authorities of Louisiana having rebelled against the authority of the United States and her inhabitants having been declared to be in a state of insurrection in pursuance of a law passed by the two Houses of Congress, your committee deem it improper for this body to admit to seats Senators from Louisiana till by some joint action of both Houses there shall be some recognition of an existing State government acting in harmony with the Government of the United States and recognizing its authority. Your committee therefore recommend for adoption, before tak ng definite action upon the right of the claimants to seats, the accompanying joint resolution: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States do hereby recognize the government of the State of Louisiana inaugurated under and by the convention which assembled on the CUTLER AND SMITH, AND HAHN. 309 6th day of April, A. D. 1864, at the city of New Orleans, as the legitimate government of said State, entitled to the guarantee and all other rights of a State government under the Constitntion of the United States. CREDENTIALS OF MR. HAHN. THURSDAY, March 2, 1865. Mr. Doolittle presented a certified copy of the proceedings of the legislature of thg State of Louisiana, showing that the Hon. Michael Hahn was elected a Senator by the legislature of that State for the term of six years commencing on the 4th day of March, A. D. 1865; which were read. Objection being made by Mr. Davis to the reception of the paper, On motion by Mr. Trumbull, Ordered, That it lie on the table. aT debate is found on page 1278 of the Congressional Globe, part 2, 2d sess. 38th Cong. [Special session of Senate, March, 1865.] THURSDAY, March 9, 1865. On motion by Mr. Doolittle, the credentials of the Hon. Michael Hahn, elected a Sen- ator by the legislature of Louisiana, were taken from the files and presented to the Senate. On motion by Mr. Doolittle, Ordered, That the further consideration thereof be postponed to the next session of Congress. 310 SENATE ELECTION CASES. [Second session Thirty-eighth Congress, and special session of Senate, March, 1865.] . JOSEPH SEGAR anp JOHN ©. UNDERWOOD, of Virginia. February 17, 1865, the credentials of Mr. Segar, elected to fill the unexpired term ending March 3, 1869, of Lemuel J. Bowden, who died J anuary 2, 1864, were presented. A motion was made that they be referred to the Committee on the Judiciary. After debate it was ordered that they lie on the table. It appears from the debate that the question raised was whether the body electing Mr. Segar was the legislature of Virginia, a great part of that State being in rebellion. Extracts from remarks given below show the grounds upon which certain Senators proceeded. March 9, 1865, the credentials of Mr. Underwood, elected for the term. begining March 4, 1865, were presented. The credentials of Mr. Segar were taken from the files and presented to the Senate. It was ordered that the further consideration of the credentials of both be postponed to the next session of Congress. Mr. Segar and Mr. Underwood were elected at the same time and by the same legisla- ture. No further action was taken on the credentials. a February 18, 1879, a resolution passed the Senate that there be paid to Mr. Segar out of the contin- gent fund of the Senate the sum of $5,000 in full compensation for his expenses in prosecuting his claim. Petitions for like compensation were filed bet e representatives of Mr. Underwood, deceased. Favorable reports were made y the Committee on Privileges and Elections in 1882 and 1884. April 21, 1886, a resolution was passed allowing Mr. Underwood's representatives $5,000 in full compensa- tion of all time and expenses, to be paid out of the contingent fund. ‘ ‘ The history of the case here given consists of a transcript of the proceedings of the Senate relatin; to it from Senate Journal, 2d sess. 38th Cong., and extracts from remarks of several Senators. transcript of the penepedines of the Senate in regard to the allowance of compensation, from Senate Journals, 43d-49t! Cong., with the reports thereon, are also given. Special references to the debates of each day are inserted below. Fripay, February 17, 1865. Mr. Willey presented the credentials of the Hon. Joseph Segar, elected a Senator by the legislature of the State of Virginia to fill the vacancy occasioned by the death of the Hon. Lemuel J. Bowden; which were read. A motion was made by Mr. Sumner that the credentials be referred to the Com- mittee on the Judiciary. : On motion by Mr. Howard to amend the motion of Mr. Sumner by adding thereto the words ‘‘and that the committee be instructed to inquire and report upon the election, returns, and qualifications of the claimant,” After debate, On motion by Mr. Sherman that the credentials lie on the table, Mr. McDougall raised a question of order, to wit: That the subject under consid- eration being a question of privilege, affecting the organization of the Senate, the motion to lie on the table, which precluded debate, was not in order. The President pro tempore decided that a question of privilege, when brought be- fore the Senate for its action, was subject, like other questions, to such motion as any Senator may think proper tosubmit; and decided that the motion of Mr. Sher- man was in order, From this decision Mr. McDougall appealed; and the question being submitted to the Senate, Shall the decision of the Chair stand as the judgment of the Senate? it was determined in the affirmative. So the decision of the Chair was sustained; and, On the question to agree to the motion that the credentials lie on the table, it was determined in the affirmative—yeas 29, nays 18. On motion by Mr. McDougall, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Chandler, Clark, Collamer, Conness, Cowan, Davis, Doolittle, Farwell, Foster, Hale, Harlan, Howard, Howe, Morgan, Morrill, Nye, Powell, Ramsey, Sherman, Sprague, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, and Wilson. Those who voted in the negative are Messrs. Dixon, Hendricks, Johnson, Lane of Indiana, Lane of Kansas, McDougall, Nesmith, Pomeroy, Richardson, Saulsbury, Van Winkle, Willey, and Wright. So it was Ordered, That the credentials lie on the table. [The debate is found on pages 845-849 of the Congressional Globe, part 2, 24 sess. 38th Cong. ] SEGAR AND UNDERWOOD. 311 [Special session of Senate, March, 1865.] THURSDAY, March 9, 1865. Mr. Doolittle presented the credentials of the Hon. John C. Underwood, elected a Sen- ator by the legislature of Virginia for the term of six years commencing on the 4th day of March, A. D. 1865; which were read. On motion by Mr. Sumner, Ordered, That the further consideration of the credentials be postponed to the next session of Congress. * * * * * * * On motion by Mr. Willey, the credentials of the Hon. Joseph Segar, elected a Senator by the legislature of Virginia, were taken from the files and presented to the Senate; and, On motion by Mr. Willey, & Ordered, That the further consideration thereof be postponed to the next session of ongTess. : [The debate is found on pages 1433, 1434 of the Congressional Globe, part 2, 2d sess. 38th Cong. ] [Remarks of Mr, Sumner, of Massachusetts, in favor of reference to a committee of Mr. Segar’s cre- dentials. Delivered February 17, 1865, and taken trom page 846 of the Congressional Globe, part 2, 2d sess. 38th Cong. ] “‘T regret that a question of this magnitude has been precipitated upon the Senate at this late period of the session when there is so much public business which has not yet received the attention of either House of Congress. The Senator from Michigan does not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, with all the powers and privileges pertaining to that office—powers and privileges, legis- lative, diplomatic, and executive; and the question now is whether all these extraordi- nary powers and privileges shall be recognized in a gentleman whose certificate has been sent to the Chair. I thought it my duty, on hearing that certificate read as I entered the Chamber, to move at once its reference to the Committee on the Judiciary. I am astonished that there can be any hesitation in making that reference. Sir, Senators who hesitate show an insensibility to the character of the question. Is the Senate ready to act blindfolded or with the eyes open? I insist that on a question of this magnitude the Senate shall act with the eyes open, wide open; and I know no other way in which they can be brought to act so except through the intervention of a responsible committee of this body. Therefore, sir, I proposed that the credentials should be referred to that com- mittee. Itwill be the duty of the committee, as my friend from Michigan has suggested, to consider in the first place whether a State in armed rebellion like Virginia can have Senators on this floor. That is a great question, constitutional, political, practical. It. will be their duty, then, to consider in the next place whether the gentleman whose cre- dentials have been presented has been chosen legally under the Constitution of the United States by any State. Now, sir, I do not intend to prejudge either of these ques- tions. I simply open them now for the consideration of the Senate. “‘T say, sir, I do not mean to prejudge these questions; but I do insist that a measure of this importance shall not be acted on without due consideration, and in absolute in- difference to those facts which now stare us in the face, glaring upon us every day in every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain that Senators say that Virginia, now in war against the Union, is entitled to repre- resentation on this floor, when you have before you the inexorable fact that the greater part of that State is at this moment in possession of an armed rebellion, and when you have before you the other fact filling almost all the newspapers of the land that the body of men who have undertaken tosend a Senator to Congress are little more than the com- mon council of Alexandria; and you have the question distinctly presented to you whether a representative of the common council of Alexandria is to enter this Chamber and share the same powers and privileges of my honorable friend near me, the Senator from New York [Mr. Morgan], or my friend farther from me, the Senator from Penn- sylvania [Mr. Cowan]. I merely open these points without now undertaking to decide them, but simply as an unanswerable argument in favor of the reference to the commit- ” tee. [Extract from remarks of Mr. Willey, of West Virginia, in favor of allowing Mr. Segar to be at once admitted to his seat. Delivered February 17, 1865, and taken from page 848 of the Congressional Globe, part 2, 2d sess. 38th Cong.] ‘But the honorable Senator and those who think with him have taken the ground that Virginia is not entitled to representation on this floor. Why,sir, has not the Senate recognized the fact that she is entitled to such representation during the whole of the gession and during the whole of the last session of Congress ? Has there not beenaSen- 312 SENATE ELECTION CASES. ator representing the State of Virginia on this floor, participating in the proceedings of this body, recording his yeas and nays, and to the extent of his vote controlling the legis- lation of Congress? Has he not been recognized without 2 murmur and without a word of objection? So far as that fact is concerned I hold that the Senate is barred by its own action, that it should have excluded the honorable gentleman who represents Vir- ginia on the floor already if Virginia be not entitled as a State to representation on this floor. I put it to Senators to say, if Mr. Bowden had been living to-day, whether he would not have been allowed to occupy his seat without let or hindrance, without any objection, the same as his honorable colleague has been allowed to occupy his seat with- out objection. I say, therefore, the action of the Senate itself has recognized the fact not only that Virginia is entitled to representation on this floor, but that she has been and is represented on this floor; and so long as the honorable Senator who represents Vir- ginia here is allowed to retain his seat it strikes me that itis not competent for the Senate to say that Virginia is not entitled to representation on this floor. ‘*T fully concur in all that has been said in regard to the importance of this question. I know very well, for I have been enabled to see it and to feel it personally, with what eager desire the loyal population of Virginia are looking to the action of Congress in this respect to sustain the legislature at Alexandria. I know how all the northwest portion of Virginia, now composing the State of West Virginia, was brought in around-the loyal legislature of Wheeling, forming a nucleus, until the whole State was brought under the flag of the Union and under the jurisdiction of the Federal Constitution; and I know that such will be the result in Virginia if its loyal legislature is sustained. County after county—such is my information from beyond the lines to-day, having letters in abundance to that effect—eagerly desire for the time to come whcn they shall be relieved of the power of the rebellion, that they may reorganize the old government of Virginia around the legislature of Alexandria. “But, sir, it is a fact, not only that the Senate of the United States has recognized the existence of Virginia as a State, and her right to be represented on this floor, but the executive branch of the Government has done so, I imagine; for I saw it stated in the papers the other day that the Secretary of State had transmitted the constitutional amendment for the abolition of slavery to the executive of Virginia, and through him it was sent to the legislature to be acted upon, and that legislature had acted upon it and ratified the amendment. We shall place ourselves in a singular position if we reject a gentleman who comes here accredited with a certificate of election in due form and repulse him from our doors and refuse to allow him a seat on the floor when we have another member representing the same State upon the floor and when the executive branch of the Government recognizes the Virginia legislature at Alexandria as the true legislature, and Governor Peirpoint as the true and legitimate governor of Virginia. I trust that this matter will not be referred at all, but that we will hold out the induce- ment to the loyal people of Virginia to rally around the loyal legislature at Alexan- dria.’’ [Remarks of Mr. Sherman, of Ohio, accompanying his motion that the credentials of Mr. Segar be laid on the table. Delivered February 17,1865, and taken from pages 848, 849 of the Congressional Globe, part 2, 2d sess. 88th Cong.] ‘“*T wish to submit to the Senate one or two considerations on this subject, and I shall close my remarks by submitting a motion that is not debatable. “The credentials presented to us purport to show that this gentleman was elected a member of this body on the 8th day of December last, and they bear date on the 12th day of December last. They have been held by him for more than sixty days. Every intelli- gent man must have known that the presentation of these credentials would give rise to debate, would involve grave political questions about which there are radical differences of opinion in this body and throughout the country. The condition of the State of Vir- ginia, the condition of the rebel States, the effect of the rebellion, all these matters are involved in the question now presented to the Senate. This gentleman holding these papers might at any moment have presented them asa privileged question, and have stopped all the businesss of this body until they were disposed of, either referred oracted upon. Now, I ask the Senator whether it is reasonable for us at this period of the ses- sion to stop our deliberations, when all the important bills of the session remain unacted upon, for the purpose of considering thisquestion? When this gentleman has had these papers in his possession for more than sixty days, when he had the right at any day to present them and call on us to decide the question raised by them, is it reasonable, I ask, to present them at this period of the session, and ask us to postpone all the impor- tant business of the session for the purpose of considering them? It seems to me it is not; and, therefore, without going into the merits of the proposition, which is a very grave and difficult one, upon which I myself have not made up my opinion, although I SEGAR AND UNDERWOOD. 313 have read and thought a great deal about it, I submit whether, under the circumstances, the best disposition is not to leave the question to be settled by the next Congress. ‘* The State of Virginia is now represented by one Senator in this body. The State of West Virginia is ably represented by two Senators. The Senator-elect, or theperson who claims to act as the Senator-elect from Virginia, has slept upon his rights for sixty, ay, seventy days. It seems to me, therefore, that for the short period of the term for which he was elected, only fifteen days, it is scarcely worth while for us to delay the ordinary business of the country and stop and deliberate upon his right to a seat which at any rate will expire onthe 4thday of March next. The question when presented to the next Congress will be one that we shall have ample time to decide. It will bepresented at the threshold on the 4th of March next. No doubt then a gentleman claiming to be a Senator from the State of Virginia will present his credentials. Then we can take up the matter and determine it. We can take time, we can deliberate, we can get full in- formation on the subject; and we can dispose of these grave political questions without interfering with the public business. Now wecannot. Under the circumstances, there- fore, I feel it my duty to submit a motion that the credentials do lie upon the table.”’ {Extract from remarks of Mr. Doolittle, of Wisconsin, maintaining that the case of Virginia stood on different grounds from that of Arkansas,in regard to which the Committee on the Judiciary had recommended a postponement of the question until the next session of Congress. Delivered March 9, 1865, and taken from the Congressional Globe, part 2, 2d sess. 88th Cong.] ‘In relation to the State of Virginia 1 think every Senator can easily see that it stands on very different ground perhaps from any of the other States from which Sena- torshave appeared with their credentials. The State of Virginia, as such, has been recog- nized by this Government in every form, by the executive department, and by Congress. By legislative action we have recognized the government of Virginia as the legitimate government of that State, for it was by the consent of the legislature of that State that we acted when we agreed to a division of the State of Virginia into West Virginia and East Virginia. Whether the action of Congress was wise or unwise in consenting to the erection of the State of West Virginiais not a question which is now tobe discussed. The Government has in every form recognized that State. We had until the 4th day of March a Senator from that State, after the division of the State of Virginia. When West Virginia was represented by two Senators on this floor we had two Senators still from old Vir- ginia, one of whom died during the recess of Congress, Hon. Mr. Bowden, and the other of whom remained until the 4th day of March last. So that by the action of this body we have recognized the existence of the State of Virginia—I mean the old State of Vir- ginia independent of the State of West Virginia. * * * * * * **T will finish in a word all thatI desire tosay. The Presidential proclamation declaring the population of certain States to bein insurrection excepted from its operation the coun- ties of Alexandria city and county, Berkeley, Accomac, Northampton, Princess Anne, Nor- folk, Norfolk city, Portsmouth city, and Elizabeth city and county, in the State of Virginia, containing a population of over 175,000; and these counties are now represented in the legislature at Alexandria. ‘But, Mr. President, I see that the Senate do not desire to take up and dispose of any of these questions in relation to the admission of Senators from any of these States at the present session; and my purpose in rising now is not to press any such action on the Senate, but simply to state in answer to what fell from some Senators that this case of the State of Virginia may in some respects stand on a different footing in relation to the proclamation declaring States in insurrection, from the other States, because of the action of Congress already in recognizing the government which is denominated the Peirpoint government as being the true government of the State of Virginia, with which we have dealt, upon whose action we have suffered the erection of a new State within the limits of Virginia, so that we may be already committed on that subject in a differ- ent form from what we are in relation to these other States. I agree with the Senator from Missouri in relation to all of them, that it is our duty at the earliest practicable moment to take these free States by the hand and give them the moral support of our recognition. ’’ COMPENSATION OF MR. SEGAR. [First session of the Forty-third Congress. ] Monpay, December 8, 1873. Mr. Lewis presented the petition of Joseph Segar, praying to be allowed pay as a Senator from Virginia in 1863; which was referred to the Committee on Privileges and Elections. 314 SENATE ELECTION CASES. THURSDAY, February 5, 1874. Mr. Lewis presented the petition of Joseph Segar, praying compensation as a Senatoi - a Virginia in 1863 and 1864; which was referred to the Committee on Privileges aud Elections. [The debate is found on page 1213 of the Congressional Record, vol. ii; part 2.] [First session of the Forty-fourth Congress. ] » WEDNESDAY, February 15, 1876. Mr. Withers presented the petition of Joseph Segar, praying to be allowed pay asa Senator from Virginia in 1863; which was referred to the Committee on Claims. Monpbay, February 21, 1876. On motion by Mr. Wright, Ordered, That the Committee on Claims be discharged from the further consideration of se petition of Joseph Segar, and that it be referred to the Committee on Privileges and ections. [Second session of the Forty-fourth Congress. ] SATURDAY, March 3, 1877. Mr. Wadleigh submitted the following resolution for consideration: “‘ Resolved, That the Secretary of the Senate be, and is hereby, authorized and directed to pay to Joseph Segar compensation and mileage as a Senator of the United States from the date of the death of Hon. Lemuel J. Bowden to the end of the term for which said Segar was elected.’’ [The debate* is found on pages 2195, 2196 of the Congressional Record, vol. v, part 3.] [Second session of the Forty-fifth Congress. ] WEDNESDAY, December 12, 1877. On motion by Mr. Withers, Ordered, That the papers of Joseph Segar, on the files of the Senate, be referred to the Committee on Privileges and Elections. THURSDAY, June 13, 1878. Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the memorial of Joseph Segar, submitted a report (No. 509) thereon, accompanied by the following resolution. (Resolution given at end of report.) REPORT OF COMMITTEE.t [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] In THE SENATE OF THE UNITED STATES. JUNE 13, 1878.—Ordered to be printed. Mr. Hoar, from the Committee on Privileges and Elections, submitted the following report: The Committee on Privileges and Elections, to whom was referred the memorial of Joseph Segar, asking for payment of his salary and mileage as Senator from December 8, A. D. 1864, to March 4, 1869, have considered the same, and respectfully report: If the petitioner had been admitted to the seat which he claimed, his salary and mile- age would have amounted to more than $21,000. He was not admitted, and having never performed the duties of a Senator, under the most recent precedent he is not en- titled to compensation and mileage as such. By the same precedent, if he prosecuted in good faith and on reasonable grounds a claim for such seat, he should be allowed a mod- erate compensation for the expenses incurred by him in such prosecution. On the 23d of February, 1863, Mr. Bowden was elected Senator for Virginia by the legislature assembled at Wheeling, the great portion of Virginia, including Richmond, its former seat of government, being then in rebellion. He was admitted to his seat, the Senate thereby recognizing the legal existence of the State he represented. West Vir- * This debate took place ona previous proceeding not found in the Senate Journal. The resolu- tion was first offered as an amendment to aresolution annulling the resolution by which William K. Sebastian was expelled. +Taken from Senate Reports, vol. 2, 2d sess, 45th Cong., No. 509. SEGAR AND UNDERWOOD. 315 ginia was then erected into a separate State. The legislature of Virginia assembled at Alexandria and continued the fanctions of a State legislature of Virginia. Mr. Bowden continued to represent Virginia in the Senate until his death, on the 2d of January, 1864. December 8, 1864, the petitioner was elected to succeed Mr. Bowden, and prosecuted his claim with diligence. The Alexandria government was recognized as a valid State or- ganization by President Lincoln in his amnesty proclamation of December 8, 1863. It gave its constitutional assent to the adoption of the thirteenth amendment of the Consti- tution of the United States, and its assent is treated by Mr. Seward in his proclamation announcing the adoption of the amendment as necessary thereto. Under these circumstances, the petitioner was well warranted in presenting his claim to a seat in the Senate. If the practice then prevailing were now acted upon he would receive full salary and mileage. The Senate in the cases of Ray and McMillan, at the present session, preferred to allow to such claimants only a compensation for reasonable and moderate expenses. As this is a new rule, it would be clearly unjust to require of claimants to furnish minute items and vouchers. We think the sum of $5,000 areason- able and moderate allowance to Mr. Segar for three years’ prosecution of his claim. We therefore recommend the passage of the accompanying resolution: Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his claim to a. seat in the Senate as a Senator from the State of Virginia. [Third session of the Forty-fifth Congress. ] TUESDAY, February 18, 1879. On motion by Mr. Hoar, the Senate proceeded to consider, as in Committee of the Whole, the following resolution: ; “* Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia ;’’ And no amendment being made, it was reported to the Senate. On the question, Shall the resolution be engrossed and read a third time? it was deter- mined in the affirmative—yeas 34, nays 24. On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Barnum, Blaine, Burnside, Butler, Cameron of Wisconsin, Chaffee, Conover, Davis of West Virginia, Dawes, Dor- sey, Edmunds, Ferry, Garland, Gordon, Grover, Hill, Hoar, Ingalls, Jones of Florida, Kirkwood, McMillan, Matthews, Merrimon, Mitchell, Morgan, Paddock, Saunders, Sharon, Teller, Voorhees, Wadleigh, Windom, and Withers. Those who voted in the negative are Messrs. Bailey, Bayard, Booth, Cameron of Pennsylvania, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Harris, Kernan, Mc- Creery, McDonald, McPherson, Maxey, Morrill, Randolph, Ransom, Rollins, Sargent, Saulsbury, Spencer, Wallace, and Whyte. So it was Ordered, That the resolution be engrossed and read a third time. And the said resolution was read the third time. Resolved, That it pass.: [The debate is found on pages 1513-1515 of the Congressional Record, vol. viii, part 2.] CLAIM OF REPRESENTATIVES OF MR. UNDERWOOD, DECEASED. [Third session of the Forty-fifth Congress. ] SATURDAY, February 22, 1879. Mr. Withers presented the petition of Maria G. Underwood, administratrix of the estate of John ©. Underwood, deceased, praying an appropriation to pay the alleged expenses incident to his election as a Senator in Congress from the State of Virginia; which was referred to the Committee on Privileges and Elections. [First session of the Forty-seventh Congress. ] TUESDAY, January 24, 1882. Mr. Walker presented the petition of Maria G. Underwood, praying an allowance to her as the administratrix of J. C. Underwood, deceased, on.account of the election of the said J. C. Underwood to the United States Senate; which was referred to the Com- mittee on Privileges and Elections. 316 SENATE ELECTION CASES. Monpbay, May 29, 1882. Mr. Lapham, from the Committee on Privileges and Elections, t» whom was referred the petition of Maria G. Underwood, submitted a report (No. 656) thereon accompanied by the following resolution; which was read the first and second times by unanimous consent. [Resolution given at end of report. ] BEPORT OF COMMITTEE.* - [The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsin, Sher- man, Frye, Lapham, Saulsbury, Hill of Georgia, Vance, and Pugh.] In THE SENATE OF THE UNITED STATES. May 29, 1882.—Ordered to be printed. Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom was referred the petition of Maria G. Underwood, administratrix of John C. Underwood, deceased, asking payment for salary and mileage of the said John C. Underwood from the 4th of March, 1865, to the 4th of March, 1871, have considered the same, and respectfully report: That on the 9th day of December, 1864, the petitioner’s intestate was duly elected a Senator from the State of Virginia, for the term of six years from the 4th day of March, 1865; that he received a certificate of such election in the words and figures following: VIRGINIA, fo wit: The legislature of this State having, on the ninth day of December, 1864, in pursuance of the Constitution for the United States, chosen John C. Underwood, esquire, a Senator from this State for six years from the fourth day of March next, I, Francis H. Peirpoint, being governor of the Commonwealth, do hereby certify the same to the Senate of the United States. Given under my hand and the seal of the Commonwealth this the fourteenth day De- cember, 1864. [SEAL OF VIRGINIA. ] F. H. PEIRPOINT. By the governor: W. J. COWING, Secretary of the Commonwealth. That the said John C. Underwood duly presented his certificate and credentials as aforesaid, on the 9th day of March, 1865, to the Senate of the United States, and made efforts to obtain his seat in the said Senate, traveling from his home in Virginia to the city of Washington from time to time, and incurred a very considerable expenditure of time and money in so doing; that on the same day of the election of said John C. Under- wood one Joseph Segar was also duly elected a Senator from said State and presented his credentials to the Senate; that neither-the said Segar nor the said Underwood were ad- mitted to take their seatsin the Senate; that the said Segar duly presented his memorial to the Senate during the Forty-fifth Congress, at its second session, asking payment for his salary and mileage as Senator from the 9th of December, 1864, to the 4th of March, 1869, which was referred to the Committee on Privileges and Elections, and the com- mittee recommended the passage of a resolution in words and figures following: “‘ Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.’’ Which resolution was adopted by the Senate, and the amount therein named was paid to the said Segar. The report of the committee in Segar’s case contained the following statements: ‘‘Tf the petitioner had been admitted to the seat which he claimed, his salary and mile- age would have amounted to more than $21,000. He was not admitted and having never performed the duties of a Senator, under the most recent precedent he is not entitled to compensation and mileage as such. By the same precedent, if he prosecuted in good faith and on reasonable grounds a claim for such seat, he should be allowed a moderate compensation for the expenses incurred by him in such prosecution.”’ On the 23d day of February, 1863, the legislature of Virginia assembled at Wheeling, in said State, the greater portion of the State, including the city of Richmond, its former seat of government, being then in rebellion, and elected one Bowden a United States Senator from that State. Said Bowden was admitted to his seat, the Senate thereby * Taken from Senate Reports, Ist sess, 47tli Cots, No. 656. SEGAR AND UNDERWOOD. 317 recognizing the legal existence of the legislature which elected him. West Virginia, in- eluding the city of Wheeling, was then erected into a separateState. The legislature of Virginia, after such formation of a new State, assembled at the city of Alexandria and continued the functions of a State legislature of Virginia. Said Bowden died on the 2d of January, 1864, and said Segar was elected to succeed him at the same time of the election of John C. Underwood, as aforesaid. The committee in Segar’s case further reported as follows: “The Alexandria government was recognized as a valid State organization by Presi- dent Lincoln in his amnesty proclamation of December 8, 1863. It gave its constitutional assent to the adoption of the thirteenth amendment of the Constitution of the United States, and its assent is treated by Mr. Seward in his proclamation announcing the adop- tion of the amendment as necessary thereto. : ‘‘Under these circumstances, the petitioner was well warranted in presenting his claim to a seat in the Senate. If the practice then prevailing were now acted upon he would receive full salary and mileage. The Senate in the cases of Ray and McMillen, at the present session, preferred to allow to such claimants only a compensation for reasonable and moderate expenses. As this is a new rule, it would be clearly unjust to require of claimants to furnish minute items and vouchers. We think the sum of $5,000 a reason- able and moderate allowance to Mr. Segar for three years’ prosecution of his claim. We therefore recommend the passage of the accompanying resolution.’’ The‘cases of said Underwood and Segar are alike in all respects, except the terms for which they were chosen. It is true no actual service as Senator was rendered by either, but each stood ready to perform his duties whenever the Senate should allow it; that the said Underwood performed no such service was the fault of the Senate, not his. The precedents fully justify the allowance to said Segar and the allowance asked by the petitioner. The House of Representatives has frequently paid large sums of money to unsuccessful contestants for seats in that body; and the Senate, at the same session during which-the allowance was made to Segar, also paid Messrs. Ray and McMillen, and has also paid two claimants for seats from the State of Georgia, although none of them were allowed to occupy their seats in the Senate. The valuable services rendered by said Underwood to the Government in its struggle for national supremacy are matters of his- tory and need not be here repeated. We think the sum allowed and paid to Mr. Segar is a precedent which should be followed in this case, and recommend the passage of the accompanying resolution: Resolved, That there be allowed and paid out of the contingent fund of the Senate to Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in fall compensation for the time and expenses of said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia. WEDNESDAY, June 7, 1882. On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the Whole, the resolution reported by him on the 29th ultimo from the Committee on Priv- ileges and Elections, to pay Maria G. Underwood, administratrix, $5,000 in full com- pensation for expenses of John C. Underwood in prosecuting his claim to a seat in the Senate. After debate, Ordered, That the further consideration thereof be postponed to to-morrow. [The debate is found on pages 4616-4618 of the Congressional Record, vol. xiii, part 5.] [Second session of the Forty-seventh Congress. } SaTuRDAY, March 3, 1883. : On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the Whole, the resolution reported by him May 29, 1882, to pay Maria G. Underwood $5,000 in full compensation for expenses of John G, Underwood in prosecuting his claim to a seat in the Senate of the United States. After debate, : Ordered, That the said resolution be postponed indefinitely. [The debate is found on pages 3697-3706 of the Congressional Record, vol. xiv, part 4.] [First session of the Forty-eighth Congress. ] Mownpay, December 10, 1883. On motion by Mr. Hoar, : : Ordered, That the petition and papers of Maria G. Underwood, on the files of the Sen- ate, be referred to the Committee on Privileges and Elections. 318 SENATE ELECTION CASES, Fripay, June 20, 1884. Mr. Lapham, from the Committee on Privileges and Elections, to whom was referred the petition of Mrs. Maria G. Underwood, administratrix of John C. Underwood, de- ceased, submitted a report (No. 748) thereon, accompanied by the following resolution for consideration. [Resolution found at end of report. ] REPORT OF COMMITTEE.* [The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsin, Sher- man, Frye, Lapham, Saulsbury, Vance, Pugh, and Jonas. ] In THE SENATE OF THE UNITED STATES. JUNE 20, 1884.—Ordered to be printed. Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to whom was referred the petition of Maria G. Underwood, administratrix of John C. Underwood, deceased, asking payment for salary and mileage of the said John C. Underwood from the 4th of March, 1865, to the 4th of March, 1871, have considered the same, and respectfully report: That on the 9th day of December, 1864, the petitioner’s intestate was duly elected a Senator from the State of Virginia for the term of six years from the 4th day of March, 1865; that he received a certificate of such election in the words and figures following: VIRGINIA, to wit: The legislature of this State having, on the 9th day of December, 1864, in pursuance of the Constitution of the United States. chosen John C. Underwood, esquire, a Senator from this State for six years from the 4th day of March next, I, Francis H. Peirpoint, being governor of the Commonwealth, do hereby certify the same to the Senate of the United States. " Given under my hand and the seal of the Commonwealth this the 14th day of Decem- ber, 1864. _ [SEAL OF VIRGINIA. ] F. H. PEIRPOINT. By the governor: W. J. COWING, Secretary of the Commonwealth. That the said John C. Underwood duly presented his certificate and credentials as aforesaid, on the 9th day of March, 1865, to the Senate of the United States, and made efforts to obtain his seat in the said Senate, traveling from his home in Virginia to the city of Washington from time to time, and incurred a very considerable expenditure of time and money in so doing; that on the same day of the election of said John C. Un- derwood one Joseph Segar was also duly elected a Senator from said State and presented his credentials to the Senate; that neither the said Segar nor the said Underwood were admitted to take their seats in the Senate; that the said Segar duly presented his me- morial to the Senate during the Forty-fifth Congress, at its second session, asking pay- ment for his salary and mileage as Senator from the 9th of December, 1864, to the 4th of March, 1869, which was referred to the Committee on Privileges and Elections, and the committee recommended the passage of a resolution in words and figures following: “¢ Resolved, That there be allowed and paid out of the contingent fund of the Senate to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.’’ Which resolution was adopted by the Senate, and the amount therein named was paid to the said Segar. The report of the committee in Segar’s case contained the fol- lowing statements: “If the petitioner had been admitted to the seat which he claimed, his salary and mileage would have amounted to more than $21,000. He was not admitted, and having never performed the duties of a Senator, under the most recent precedent he is not en- titled to compensation and mileage as such. By the same precedent, if he prosecuted in good faith and on reasonable grounds a claim forsuch seat, he should be allowed a moderate compensation for the expenses incurred by him in such prosecution.’’ A majority of the inhabitants of Virginia were opposed to the secession of the State and its union with the confederate government. After the ordinance of secession was adopted, about fifty-five counties in the northwestern portion of the State united in sending delegates to the convention at Wheeling, on the 11th of June, 1861. * Taken from Senate Reports, Ist sess. 48th Cong., No. 748. SEGAR AND UNDERWOOD. 319 This was done under the advice of the Attorney-General and of President Lincoln, that such counties would be recognized as the lawful government of the State of Vir- ginia if they remained loyal tothe Government. The convention thus assembled chose @ governor, lieutenant-governor, and council to fill the offices vacated by those who had seceded. Jobn S. Carlile and Waitman T. Willey were chosen United States Senators to occupy the seats vacated by Messrs. Mason and Hunter. They were admitted to their seats in the Senate at the extra session on the 4th of July, 1861. Five members of the House of Representatives were admitted to their seats in that body at the same time, and thus the existence and validity of the government of Virginia were recognized by both Houses of Congress. On the 20th of August, 1861, the convention passed an ordinance to provide for the formation of the State of West Virginia. Delegates from the counties to compose the new State met in convention at Wheeling, framed a consti- tution for the new State, which was submitted to a vote of the people of said counties in April, 1862, and ratified by an almost unanimous vote. Governor Peirpoint, the newly installed governor of Virginia, called an extra session of the legislature for the 6th of May, 1862, at which session an act was passed giving the assent of the State of Virginia to the formation of the new State. This consent, with a copy of the proposed constitution, were transmitted to Congress with an applica- tion for the admission of West Virginia as a new State. Congress passed an act provid- ing for its admission, which was approved by the President on the 31st of December, 1862, and West Virginia thus became a State in the Union on an equal footing with the original States. The act provided that until the next census the new State should have three members in the House of Representatives. The legislature at Wheeling passed an act authorizing the removal of the seat of government from Wheeling to Alexandria. An election for State officers was held in the fall of 1863. Governor Peirpoint was elected fora fall term. Three members of Congress were chosen, and a Senator to take the place of Mr. Willey, who had been elected a Senator from the new State of West Vir- ginia. The Senators and Representatives thus chosen took their seats at the opening of the session of Congress in December, 1863, and continued to hold them until the close of that Congress, on the 4th of March, 1865, except Senator Bowden, who died in the winter of 1865, and Mr. Joseph Segar was chosen to fill his place for the unexpired term. All the counties represented in the government of Alexandria, as well as those com- posing the State of West Virginia, were excepted from the proclamation of the President declaring certain States and parts of States in rebellion, and were recognized by the Government as loyal to the United States. The legislature at Alexandria called a con- vention, which forever abolished slavery in the State of Virginia, and the legislature adopted the thirteenth amendment to the Constitution of the United States. The votes of twenty-seven States were required to make the ratification of the thirteenth amend- ment valid, and Virginia, under the Alexandria government, made the twenty-seventh. If Virginia was not a State the thirteenth amendment was never adopted, and slavery has never been legally abolished, nor has West Virginia been constitutionally admitted asa State. In May, 1865, President Johnson issued a proclamation to re-establish the authority of the United States and execute the laws within the limits of the State of Virginia, recognizing Governor Peirpoint as the governor of the State, and directing that he should be aided, so far as might be necessary, in the extension of the State govern- ment throughout the limits of the State. When Congress met in December, 1865, the war had closed, and the State of Virginia, as well the loyal as the disloyal portion, with the other disloyal States, were on some terms to be restored to their relations with the Federal Government. On the first day of the session @ resolution was adopted in the House for the appointment of a joint com- mittee of the two Houses to consider that subject and report by bill or otherwise, and providing that until such report no Senator or Member should he admitted to a seat, and that the credentials of all Senators and Members should be referred to said commit- tee. When the resolution came up in the Senate for action Senator Anthony moved to amend the enacting clause soas to make it a concurrent instead of a joint resolution, and also moved to strike out the following words: ‘¢ And until such report shall have been made, and final action by Congress on, no member shall be received into either House from any of the so-called Confederate States, and all papers relating to the representation in said States shall be referred to said com- mittee without debate.’’ ; Senator Anthony stated that this portign of the resolution was a violation of the Con- stitution, which made the Senate the extlusive judge of the election returns and quali- fications of its own members and also a violation of the practice of the Senate by cutting off debate. Both amendments were adopted by the Senate, and the House concurred in the resolution as amended. This left Messrs. Segar and Underwood, who had been chosen Senators to represent 320 SENATE ELECTION CASES. Virginia from the 4th of March, 1865, free to press their claims to the seats which had been occupied in the Senate since the reorganization of the State government in 1861. It was their duty to the State to press their claims to such seats, and they woald have violated their obligations of honor if they had failed to do so. The joint committee of the two Houses made no report until the month of June, 1866. The Senators and Representatives from Tennessee who were denied their seats at the opening of the session were admitted to their seats in the month of July, 1866. The Senators-elect from Virginia had a right to expect the same results, and in good faith pressed their claims for recognition. The portion of Virginia from which they were elected was expressly excepted from the President’s proclamation declaring the inhabitants of certain States to be in rebellion, also in the proclamation of emancipation and in the amnesty proclamation. In the proclamation of emancipation Virginia was included, except the forty-eight aounties designated as West, Virginia, and alsothe counties of Berkeley, Accomac, North- ampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Nor- folk and Portsmouth. These formed the State of Virginia, after the cession of West Virginia, and had a population entitling the State to three Representatives in the House. They had abolished slavery in 1864, and as to them the proclamation was unnecessary. The government of Virginia, as organized in 1861, continued its functions, notwith- standing the reconstruction acts, until Governor Peirpoint’s term expired in April, 1868. The convention that framed the new constitution in 1867 expressly validated and recog- nized as binding all the legislative and judicial acts of the State of Virginia during this whole period. Still later on, in an action brought by the State of Virginia against West Virginia, the Supreme Court of the United States affirmed the validity of the State government of Virginia and held that its assent in annexing three counties to West Virginia, which were not included in the original cession, was valid and binding upon the State. Upon these facts and upon the precedents long established, it seems to your committee that Messrs. Segar and Underwood would be entitled to their full salaries as Senators. Mr. Sykes, of Alabama, who had been elected by a legislature pronounced by the Senate as illegal, was allowed his compensation and mileage from March, 1873, to May, 1874, the day he was denied his seat. Mr. Pinchback was allowed pay from March, 1873, when he was elected, to March, 1876, when he was refused a seat, aggregating $16,966.90. The practice of the Senate, however, in this respect has been modified, and in the cases of Ray and McMillen a compensation for reasonable and moderate expenses only was allowed. Following this rule, the Senate allowed Mr. Segar the sum of $5,000 for his expenses incurred in the prosecution of his claim without an itemized or detailed account of the same. The fact that Mr. Underwood held and was receiving a salary to another office consti- tutes no objection to such allowance. Members of the House of Representatives and of the Senate have been granted such allowances while at the same time drawing their salaries. Messrs. Kellogg, Ingalls, and Butler were paid their expenses under similar circumstances. If it was the duty of Judge Underwood to make an effort to obtain his seat he should be paid his expenses, although he could not accept the seat when awarded to him without vacating his other office. The cases of said Underwood and Segar are alike in all respects, except the terms for which they were chosen. It is true no actual service as Senator was rendered by either, but each stood ready to perform his duties whenever the Senate should allow it; that the said Underwood performed nosuch service was the fault of the Senate, not his. The precedents fully justify the allowance to said Segar and the allowance asked by the petitioner. The House of Representatives has frequently paid large sums of money to un- successful contestants for seats in that body; and the Senate, at the same session during which the allowance was made to Segar, also paid Messrs. Ray and McMillen although neither of them were allowed to occupy their seats in the Senate. The valuable services rendered by said Underwood to the Government in its struggle for national supremacy are matters of history and need not here be repeated. We think the sum allowed and paid to Mr. Segar is a precedent which should be followed in this case, and recommend the passage of the accompanying resolution: Resolved, That there be allowed and paid out of the contingent fund of the Senate to Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prose- cuting his claim to a seat in the Senate as a Senator from the State of Virginia. SATURDAY, July 5, 1884, On motion by Mr. Lapham, the Senate proceeded to consider the resolution reported from the Committee on Privileges and Elections June 20, 1884, to pay Maria (. Under- SEGAR AND UNDERWOOD. 321 wood, widow of John C. Underwood, the sum of $5,000, in full compensation for ex- penses of said John C. Underwood in prosecuting his claim to a seat in the Senate. After debate, On motion by Mr. Plumb, the Senate proceeded to consider bill S. 2203, &c. [The debate is found on pages 6067-6070 of the Congressional Record, vol. xv, part 6.] [Second session of the Forty-eighth Congress. ] FRipay, February 20, 1885. Mr. Lapham submitted the following resolution for consideration: ‘Resolved, That there be paid out of the contingent fund of the Senate to Alice E. Un- derwood, executrix of the last will and testament of Maria G. Underwood, administra- trix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expense of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.”’ SATURDAY, February 21, 1885. The Presiding Officer (Mr. Allison in the chair) laid before the Senate the resolution yesterday submitted by Mr. Lapham, to pay the executrix of the widow of John C. Un- derwood his expenses in prosecuting his claim toa seat in the Senate; and the resolution was referred to the Committee to Audit and Control the Contingent Expenses of the Senate. THURSDAY, February 26, 1885. Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Ex- penses of the Senate, to whom was referred the resolution submitted by Mr. Lapham on the 20th instant, to pay the heirs of John C. Underwood the amount of his expenses in contesting his right to a seat in the Senate, reported it without amendment. [Special session of Senate, March, 1885.] TurspDAY, March 10, 1885. Mr. Hoar submitted the following resolution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate: ‘Resolved, That there be allowed and paid outof the contingent fund of the Senate, to Alice G. Underwood, executrix of the last will and testament of Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.” THURSDAY, March 19, 1885. Mr. Chace, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution submitted by Mr. Hoar on the 10th instant, to pay the expenses of the late John C. Underwood in prosecuting his claim to a seat in the Senate, reported it without amendment. [First session of the Forty-ninth Congress. ] APRIL 21, 1886. On motion by Mr. Hoar, The Senate proceeded to consider the resolution submitted by him March 10, 1885, to pay the expenses of John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia; and Resolved, That there be allowed and paid out of the contingent fund of the Senate, to Alice C. Underwood, executrix of the last will and testament of Maria G. Under- wood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecut- ing his claim to a seat in the Senate as a Senator from the State of Virginia. S. Doe. 11 21 322 SENATE ELECTION CASES. (Thirty-ninth Congress—First session. j JOHN P. STOCKTON, Senator from New Jersey from March 4, 1865, till March 27, 1866, and from March 4, 1869, till March 3, 1875. Mr. Stockton’s credentials were presented and he took his seat in the Senate December 4, 1865 At the same time a memorial of members of the legislature protesting against his admission to a seat in the Senate was presented and ordered to lie on the table. January 8, 1866, the credentials and memorial were referred to the Committee on the Judiciary. January 30 the committee reported that the facts in regard to Mr. Stockton’s election were as follows: There was no law in New Jersey prescribing the ‘‘ manner” of electing Senators, other than that they ‘‘shall be appointed by the senate and general assembly in joint meeting assembled.’ The joint meeting electing Mr. Stockton passed a resolution that the candidate receiving a plurality of votes of the members present should be declared duly elected. The joint assembly consisted of eighty-one members. All were present when the vote for Senator took place. Mr. Stockton received 40 votes and Mr. Ten Eyck and other persons 41. The question before the Senate was whether a joint convention could prescribe a plu- ralityrule. The committee reported that for the purpose of choosing Senators the joint convention is regarded as the legislature, so that it is vested by the Constitution of the United States with authority to prescribe the manner of electing Senators; and recommended the adoption of a res- olution that Mr. Stockton was entitled to his seat. Some Senators maintained that in the absence of any law a majority was by the parliamentary law of the land necessary to constitute a valid elec- tion, and that the legislature alone, acting in a legislative capacity through its two branches sepa- rately, was competent to prescribe that a plurality should elect. March 23 the resolution reported by the committee passed the Senate, Mr. Stockton voting, by a vote of 22 yeas to21 nays. March 26 the Senate voted to reconsider the vote agreeing to the resolution. It then resolved ‘that the vote of Mr. Stockton be not received in determining the question of his seat in the Senate.” BMareb, af the Senate resolved by a vote of 23 yeas to 20 nays that Mr. Stockton was not entitled to ‘is seat. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, Ist sess. 39th Cong., and the report of the committee, with the exception of certain accompanying documents, from Senate Reports, 1st sess. 39th Cong., No. 4. Special references to the debates of each day, which are found in the Congressional Globe, part £ 1st sess. 39th Cong., are inserted below. Monpbay, December 4, 1865. Mr. Wright presented the credentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey for the term of six years commencing on the 4th day of March, A. D. 1865. The credentials were read and the oaths prescribed by law were administered to Mr. Stockton, and he took his seat in the Senate. Mr. Cowan presented a memorial of members of the senate and house of representa- tives of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the Senate as a Senator from that State. Ordered, That it lie on the table. MONDAY, January 8, 1866. On motion by Mr. Cowan, Ordered, That the credentials of the Hon. Jobn P. Stockton, United States Senator from the State of New Jersey, together with the memorial of the members of the senate and house of assembly of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the United States Senate as a Senator from that State, be referred to the Committee on the Judiciary. TUESDAY, January 30, 1866. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey, and the protest of certain members of the legislature of the said State against the validity of his election, submitted a report (No. 4), accompanied by the following resolution: “ Resolved, That John P. Stockton was duly elected, and is entitled to his seat, asa Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. Ordered, That the report, with the accompanying credentials and protest, be printed. JOHN P STOCKTON. 323 REPORT CF COMMITTEE.* [The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, Poland, Stewart, and Hendricks. ] IN THE SENATE OF THE UNITED STATES. JANUARY 30, 1866.—Ordered to be printed. Mr. Trumbull submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of John P. Stockton, claiming to have been elected a Senator from the State of New Jersey for six years from the 4th day of March, 1865, together with the protest of certain members of the legislature of said State against the validity of his election, submit the following report: The only question involved in the decision of Mr. Stockton’s right to a seat is whether an election by a plurality of votes of the members of the legislature of New Jersey in joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is valid. The protestants insist that it is not, and they deny Mr. Stockton’s right to a seat, because, as they say, he was not appointed by a majority of the votes of the joint meet- ing of the legislature. The legislative power of the State of New Jersey is vested by the State constitution in a senate and general assembly, which are required, for legislative purposes, to meet separately, but which, for the appointment of various officers, are required to assemble in joint meeting; and when so assembled, are, by the constitution itself, styled the “legislature in joint meeting.” The constitution of New Jersey does not prescribe the manner of choosing United States Senators; as, indeed, it could not, the Constitution of the United States having vested that power, in the absence of any law of Congress, exclusively in the legislature; but it does constitute the two houses one body for the purpose of appointing certain State offi- cers. The statute of New Jersey declares that ‘“‘United State Senators, on the part of that State, shall be appointed by the senate and general assembly in joint meeting assembled;’’ but it does not prescribe any rules for the government of the joint meeting, nor declare the manner of election. The practice in New Jersey has been for the joint meeting to prescribe the rules for its own government. In 1794 fifteen rules were adopted, the first two of which are as follows: ‘1, That the election of State officers during the present session be viva voce, unless when otherwise ordered; and that all officers be put in nomination at least one day before their election. ‘2. That the chairman shall not be entitled to vote except in case of a tie, and then to have a casting vote.’’ The other thirteen rules related chiefly to the method of conducting the proceedings. Each joint meeting which has since assembled has adopted its own rules, usually those of the preceding joint meeting, sometimes, however, with additions or exceptions. In 1851 the following additional rule was adopted: ‘* Resolved, That no person shall be elected to any office, at any joint meeting during the present session, unless there be a majority of all the members elected personally present, and agreeing thereto.”’ In 1855 the joint meeting, after adopting the fifteen rules of the preceding joint meet- ing, added the following: “That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared duly elected.”’ ; The joint meeting of 1861 adopted the rules of the preceding joint meeting for its own government, among which were the following: ‘1. That the election of State officers during the present session be viva voce, unless when otherwise ordered. ‘15, That in all questions the chairman of the joint meeting be called upon to vote in his turn as one of the representatives in the senate or assembly; but that be have no casting vote as chairman. ‘616. That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared to be duly elected.” The same rules were adopted by each joint meeting from 1861 to 1865. The joint meeting which assembled February 15, 1865, and at an adjourned session of which Mr. Stockton was appointed Senator, adopted, at its first meeting, the rules of * A reference t» the documents accompanying the report is given in the head-note. 324 SENATE ELECTION CASES. the preceding joint meeting, except the sixteenth rule, in lieu of which the following was adopted: “* Resolved, That no candidate shall be declared elected unless upon receiving a majority of the votes of all the members elected to both houses of the legislature.” After having appointed various officers under the rules which had been adopted at the assembling of the joint meeting, the following rule was adopted: “* Resolved, That the vote for county judges and commissioners of deeds be taken by orotate and that the counties in which vacancies exist be called in alphabetical order. Acting under this rule, quite a number of officers were appointed by acclamation. Not completing its business the joint meeting adjourned from time to time till March 15, when the following rule was adopted: “‘ Resolved, That the resolution that no candidate shall be declared elected unless upon receiving a majority of the votes of all the members elected to both houses of the legisla- ture be rescinded, and that any candidate receiving a plurality of votes of the members present shall be declared duly elected.’’ Every member of both houses, eighty-one in all, was present and voting when the above resolution was passed, and it was carried by a vote of 41 in the affirmative, of whom eleven were senators and thirty representatives, to 40 in the negative, of whom ten were senators and thirty representatives. The joint meeting then proceeded to the election of a United States Senator, with the following result: Hon. John P. Stockton, 40 votes; Hon. J. C. Ten Eyck, 37 votes; J. W. Wall, 1 vote; P. D. Vroom, 1 vote; F. T. Frelinghuysen, 1 vote; H. 8. Little, 1 vote. Whereupon John P. Stockton, having received a plurality of all the votes cast, was declared duly elected. The joint meeting then proceeded to the election of various other officers, having completed which, it rose. The credentials of Mr. Stockton are under the great seal of state, signed by the gov- ernor and in due form. No objection appears to have been made at the time to the election. Its validity is now called in question by a protest dated March 20, 1865, and signed by eight senators and thirty members of the general assembly. The Constitution of the United States declares that the Senate of the United States ‘‘shall be composed of two Senators from each State, chosen by the legislature thereof,’’ and that ‘‘ the times, places, and manner of holding election for Senators and Representatives shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.’’ The right to choose United States Senators in a joint meeting of the two houses which compose the legislature of a State has been too long and too frequently exercised to be now brought in question. This has been the manner of election in some States from the beginning, and is now the manner in most of them. For the purpose of choosing United States Senators the joint meeting of the two houses is regarded as the legislature, and especially would this be so in New Jersey, where the joint meeting is by the constitution of the State denominated a legislature. It has uni- formly been held that when the two branches of a legislature meet in joint convention to elect a United States Senator they are merged into one and act as one body, so that an election may be effected against the entire vote of the members of one house if the person voted for receive the requisite number of votes from members of the other. It being, then, settled that the two houses of a legislature in joint meeting assembled con- stitute the legislature, vested by the Constitution of the United States with authority, acting as one body, to elect a Senator, the question is: Did the joint meeting of the senate and general assembly of New Jersey, duly convened in pursuance of a resolution previ- ously concurred in by each house separately, choose John P. Stockton United States Senator? That it was competent for a plurality to elect, if a law to that effect had been prescribed by competent authority, will hardly bequestioned. Thisistherule very generally, if not universally, adopted in the election of members of the House of Representatives, who are “chosen every second year by the people of the several States,’’ and no one questions the validity of the election of a Representative by a plurality vote when the law authorizes a plurality to elect. It is however insisted, and truly, that no law of New Jersey author- izes a plurality to elect. The laws of New Jersey are silent on this subject, but they do authorize a joint meeting of the two houses of the legislature to appoint a Senator, and it has been the uniform practice of this joint meeting since the foundation of the Govern- ment to prescribe the rules for its own government. These rules as to the number of votes necessary to effect an election have varied at different times, sometimes requiring a majority of all the members elected to both houses of the legislature, sometimes a ma- jority only of those present, and in the case under consideration only a plurality. Suppose, under the rule first stated, but seventy-nine members had been present in the joint meeting, and forty had voted for the same person, would he have been elected; and JOBN P. STOCKTON. 325 if not, why not? Seventy-nine out of eighty-one would have constituted a quorum, and forty would have been a majority of those present. The only reason why such a vote would not have made an election would be the existence of the rule adopted by the joint meeting, declaring that ‘‘no candidate should be elected unless receiving a majority of the votes of all the members elected to both houses of the legislature.’”’? While that rule was in force no presiding officer would have thought of declaring a candidate elected, nor would any candidate have supposed himself elected because he received a majority of the votes cast, unless such majority was a majority of all the members elected to the legis- lature. Under the other rule, ‘‘that a person receiving a majority of the votes of those present should be declared elected,’’? who would doubt the validity of an election by 31 out of 60 votes if only so many had been cast? Ifthe joint meeting had the right to prescribe at one time that it should require a majority of all elected to the legislature to elect, at another time that a majority of those present might elect, and at still another time that elections might be had by acclamation, it had the right to prescribe that a plu- rality should elect; and when any candidate received a plurality he thereupon became elected, not simply by the will of those who voted for him, but by the will of the joint 2 which had previously, by a majority vote, resolved that such plurality should elect. It might be urged in this case, with much plausibility, that inasmuch as the constitu- tion of New Jersey recognizes the two houses in joint meeting as a legislature, that such joint meeting was the very body on whom the Constitution of the United States had con- ferred the power to prescribe ‘‘the times, places, and manner of holding elections for Senators;’’ but your committee prefer placing the authority of the joint meeting to prescribe the plurality rule on the broader ground that in the absence of any law, either of Congress or the State, on the subject, a joint meeting of the two houses of a legislature, duly assembled and vested with authority to elect a United States Senator, has a right to prescribe that a plurality may elect, on the principle that the adoption of such a rule by a majority vote in the first instance makes the act, subsequently done in pursuance of such majority vote, its own. The committee recommend for adoption the following resolution: Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from.the 4th day of March, 1865. THURSDAY, March 22, 1866. On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary on the 30th of January, on the right of the Hon. John P. Stockton to a seat in the Senate of the United States as a Senator from the State of New Jersey; which resolution is as follows: “‘ Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865.’’ On motion by Mr. Clark to amend the resolution in line 1, by inserting after the word ‘‘was”’ the word ‘‘not,’’ and after the word ‘‘is’’ the word ‘“‘not,’’ and, After debate and the consideration of executive business, the Senate adjourned. [The debate is found on pages 1564-1573 of the Congressional Globe referred to in the head-note. ] FRIDAY, March 23, 1866. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary on the 30th of January, on the right of the Hon. John P. Stockton to a seat in the Senate of the United States as a Senator from the State of New Jersey; which resolution is as follows: “* Resolved, That John P. Stockton was duly elected and is entitled to his seat asa Senator from the State of New Jersey for the term of six years from the 4th day ot March, 1865.”’ After debate, on the question to agree to the amendment proposed by Mr. Clark to the resolution, to wit, in line 1 insert after the word ‘‘ was’’.the word ‘‘not,’’ and after the word ‘‘is’’ the word not,’’ it was determined in the negative—yeas 19, nays 21. On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, and Yates. Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Stewart, Trumbull, and Willey. So the amendment was not agreed to. 326 SENATE ELECTION CASES. gen the neato to agree to the resolution, it was determined in the affirmative—yeag , nays 21. On motion by Mr. Fessenden, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Stewart, Stockton, Trumbull, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Pome- ae Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. 0 it was Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. [The debate is found on pages 1589-1602 of the Congressional Globe referred to in the head-note. ] Monpay, Marck 26, 1866. A motion was made by Mr. Sumner that the Journal of Friday, 23d March, 1866, be amended by striking out the vote of Mr. Stockton on the question of his right to a seat in the Senate. Pending dehate thereon, the following message was received, &c. * * * * * x * After further debate, Mr. Sumner asked and obtained leave of the Senate to withdraw his motion; and, The motion having been withdrawn, On motion by Mr. Poland that the Senate reconsider its vote on Friday last agreeing to the following resolution: ‘* Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865,’’ It was determined in the affirmative; and The question recurring upon said resolution, Mr. Sumner, by unanimous consent, submitted the following resolution: ‘* Resolved, That the vote of Mr. Stockton be not received in determining the question of his seat in the Senate.’’ The Senate proceeded, by unanimous consent, to consider the said resolution; and On motion by Mr. Sumner that the resolution be referred to the Committee on the Judiciary, with instructions to report on Thursday next, it was determined in the neg- ative—yeas 18, nays 22. On motion by Mr. Johnson, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Nesmith, Norton, Riddle, Saulsbury, Sherman, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sprague, Sumner, Wade, Wilson, and Yates. On the question to agree to the resolution, it was determined in the affirmative. So it was Resolved, That the vote of Mr. Stockton be not received in determining the question of his seat in the Senate. The question again recurring upon the resolution affirming the right of the Hon. John P. Stockton to his seat in the Senate, On motion by Mr. Johnson that the further consideration of the resolution be post- poned to Thursday next, After debate, ‘ On motion by Mr. Trumbull, the Senate adjourned. ii [The aam is found on pages 1635-1648 of the Congressional Globe referred to in the ead-note. TUESDAY, March 27, 1866. The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, affirming the right of the Hon. John P. Stockton to his seat as a Senator rom the State of New Jersey; and After debate, On the question to agree to the motion, yesterday submitted by Mr. Johnson, that the JOHN P. STOCKTON. 327 further consideration of the resolution be postponed to Thursday next, it was determined in the negative—yeas 18, nays 23. On motion by Mr. Johnson, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Henderson, Howard, Howe, Kirkwood, Lane of In- diana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. So the motion was not agreed to. The question recurring on the resolution, On motion by Mr. Clark to amend the resolution by striking out after the word “‘Stockton,’’ in line 1, the words ‘‘ was duly elected, and is entitled to his seat as a Sena- tor from the State of New Jersey for the term of six years from the 4th day of March, 1865,’’ and in lieu thereof inserting, ‘‘is not entitled to a seat as Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865,”’ Mr. Saulsbury raised a question of order, to wit, that the proposed amendment is in att the same proposition which the Senate had once rejected, and was therefore not in order. The President pro tempore decided that the proposed amendment, being a proposition different in its terms from that upon which the Senate had voted, was not open to the objection raised, and was in order. After debate, : On motion by Mr. Davis to amend the amendment proposed by Mr. Clark by striking out all after the word in the first line, and in lieu thereof inserting, ‘That the legislature of New Jersey having convened in joint meeting to choose a Senator to the Congress of the United States for six years from the 4th of March, 1865, and said legislature in such joint meeting having passed an order that such election should be made by a plurality vote of that joint meeting; and on the first ballot taken by said meeting, John P. Stockton having received 40 out of the 81 votes of the members of both houses of the legislature constituting such legislature in such joint meeting, and every other person voted for a less number, and the presiding officer of said joint meeting having then announced to it that the said John P. Stockton was elected Senator to Con- gress, and there being no objection or dissent expressed to said annunciation, the’said John P. Stockton was duly elected a Senator from said State, and is entitled to hold his seat as such from the 4th of March, 1865,”’ It was determined in the negative—yeas 15, nays 27. On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators resent, : Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesinith, Norton, Riddle, Saulsbury, Van Winkle, and Willey. Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con- ness, Cragin, Creswell, Fessenden, Grimes, Harris, Henderson, Howard, Howe, Kirk- wood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Trumbull, Wade, Williams, Wilson, and Yates. The question recurring on the amendment proposed by Mr. Clark, On motion by Mr. McDougall that the further consideration of the resolution be post- poned to Wednesday next at 1 o’clock, it was determined in the negative—yeas 15, nays 28. On motion by Mr. McDougall, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, Van Winkle, and Willey. Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con- ness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sum- ner, Trumbull, Wade, Williams, Wiison, and Yates. On the question to agree to the amendment, it was determined in the affirmative—yeas 22, nays 21. On ota by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators resent: e Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo- 328 SENATE ELECTION CASES. little, Guthrie, Harris, Henderson, Hendricks, Johnson, Laws of Kansas, McDougal. ees; Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, an illey. So the amendment was agreed to; and On the question to agree to the resolution asamended, it was determined in the affirm- ative—yeas 23, nays 20. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cra- gin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of ‘Indiana, Nye, omen Ramsey, Riddle, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and ates Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo- little, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morea Nesmith, Norton, Poland, Saulsbury, Trumbull, Van Winkle, and Willey. 0 it was Resolved, That John P. Stockton is not entitled to a seat as Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865. a motion by Mr. Clark that the vote on the passage of the said resolution be recon- sidered, On motion by Mr. Hendricks that the further consideration of the motion to recon- sider be postponed to to-morrow at 1 o’clock, it was determined in the negative—yeas 21, nays 22. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Doolittle, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pom- eroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. On the question to agree to the motion of Mr. Clark, to reconsider the vote on the passage of the resolution, it was determined in the negative—yeas 20, nays 22. On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, Doolittle, Guthrie, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Mor- gan, Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. Those who ‘voted i in "the negative are Messrs. Brown, Chandler, Clark, Conness, Creswell, Fessenden, Grimes, Harris, Howard, Howe, Kirkwood, Lane ‘of Indiana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. So the Senate refused to reconsider its vote on the passage of the resolution. i [The a is found on pages 1666-1679 of the Congressional Globe referred to in the ead-note. DAVID T. PATTERSON. 329 [Thirty-ninth Congress—First session. ] DAVID T. PATTERSON, Senator from Tennessee from July 28, 1866, to March 3, 1869. July 26, 1866, the credentials of Mr. Patterson, elected to fill the unexpired portion of the term be- ning March 4, 1863, were presented and referred to the Committee on the Judiciary, who were instructed to inquire into his qualifications, The following day the committee reported that the only question in relation to his qualifications arose from the fact of his having held the office of circuit judge in the State of Tennessee after that State had passed an ordinance of secession; that his first term of said office having expired after the ordinance of secession was passed, he was in- duced by Union men to become a candidate for re-election, and was re-elected in May, 1862; that he was himself a ‘‘firm, avowed, and influential Union man;” that he allowed himself to become a candidate for re-election ‘‘solely upon the motive that he could thereby afford some aid and pro- tection to the Union people;’’ that the constitution and judicial system of Tennessee remained the same after the secession of the State as before, and that no law was enforced by him as judge except such as were in force before the secession of the State. The committee recommend the adoption of a resolution that Mr. Patterson was duly qualified and entitled to hold the seat. During debate on the adoption of the resolution reported by the committee, a joint resolution was introduced in the Senate that Mr. Patterson be admitted upon his taking so much of the oath prescribed by the act of July 2, 1862, as is not included in the words, ‘‘ that I have neither sought, nor accepted, nor aisernpiod to exercise the functions of any office whatever, under any authority or pretended authority in hos- tility to the United States.’? This joint resolution passed the Senate, but was laid ox the table in the House the same day. The Senate then passed the resolution reported by the committee, it hav- ing been amended soas toread, *‘ Resolved, That the Hon. David T. Patterson, upon taking the oaths required by the Constitution and laws, be admitted to a seat in the Senate of the United States.” The history of the cage here given consists of a transcrija, of the proceedings of the Senate relating to it from Senate Journals, 1st sess. 89th Cong.,and the report of the committee, from Senate Re- ports, 1st sess. 39th Cong., volume 1, No. 139, Special references to the debates of each day are inserted helow. THURSDAY, July 26, 1866. Mr. Fowler presented the credentials of the Hon. David T. Patterson, elected a Senator by the legislature of the State of Tennessee for the unexpired term of six years com- mencing on the 4th day of March, 1863. The credentials were read. On motion by Mr. Sumner that the credentials be referred to the Committee on the Judiciary with instructions to inquire into the qualifications of Mr. Patterson, After debate, it was determined in the affirmative—yeas 26, nays 14. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Brown, Chandler, Conness, Creswell, Edmunds, Fessenden, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Trumbull, Wade, Williams, and Wilson. Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guth- rie, Hendricks, Johnson, Lane, McDougall, Nesmith, Norton, Sherman, Van Winkle, and Willey. So it was 7 ene Ordered, That the credentials be referred to the Committee on the Judiciary with in- structions +o inquire into the qualifications of Mr. Patterson. [‘The debate is found on pages 4162-4169 of the Congressional Globe referred to in the head-note. ] FRIDAY, July 27, 1866. Mr. Poland, from the Committee on the Judiciary, to whom were referred the creden- tials of the Hon. David T. Patterson, elected a Senator by the legislature of the State of Tennessee, with instructions to inquire into the qualifications of Mr. Patterson, submitted a report (No. 139) accompanied by the following resolution: “ Resolved, That the Hon. David T. Patterson is duly qualified and entitled to hold a seat in the Senate of the United States from the State of Tennessee.’’ The Senate proceeded to consider the said resolution; and, On motion by Mr. Clark to amend the resolution by striking out all after the word “ resolved,’’ and inserting in lieu thereof the following: ‘“‘That the Hon. David T. Patterson, upon taking the oaths required by the Constitu- tion and laws, be admitted to a seat in the Senate of the United States,”’ It was determined in the affirmative; ard, After debate, 330 SENATE ELECTION CASES, Ordered, That the further consideration of the resolution be postponed to to-morrow. Ordered, That the report be printed. [The debate is found on pages 4213-4216 of the Congressional Globe referred to in the head-note. ] * * * * * * * Mr. Trumbull asked, and by unanimous consent obtained, leave to bring in a joint resolution (S. 144) in relation to the admission of the Hon. David T. Patterson to a seat in the Senate; which was read the first and second times by unanimous consent, and con- sidered as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That the resolution be engrossed and read a third time. The said resolution was read the third time, by unanimous consent. On the question, Shall the resolution pass? it was determined in the affirmative—yeas 35, nays 2. 4 On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Clark, Conness, Cowan, Creswell, Davis, Doolittle, Edmunds, Foster, Fowler, Guthrie, Harris, Hender- son, Hendricks, Howe, Johnson, Kirkwood, Lane, Morgan, Nesmith, Norton, Nye, Poland, Pomeroy, Ramsey, Riddle, Sherman, Stewart, Trumbull, Van Winkle, Willey, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Chandler and Wade. So it was Resolved, That the resolution pass, and that the title thereof be as aforesaid. [This joint resolution was laid on the table in the House. ] [The debate and joint resolution are found on page 4219 of the Congressional Globe referred to in the head-note. ] * * * * * * * On motion by Mr. Poland, the Senate resumed the consideration of the resolution reported by the Committee on the Judiciary for the admission of the Hon. David T. Patterson to a seat in the Senate from the State of Tennessee; and, On the question to agree to the resolution as amended, on the motion of Mr. Clark, After debate, it was determined in the affirmative—yeas 21, nays 11. On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Senators present. Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, Edmunds, Fessenden, Foster, Guthrie, Harris, Henderson, Howe, Johnson, Kirkwood, Lane, Norton, Poland, Riddle, Sherman, Van Winkle, Willey, and Williams. Those who voted in the negative are Messrs. Chandler, Creswell, Howard, Nye, Pomeroy, Ramsey, Ross, Sumner, Trumbull, Wade, and Yates. So it was ; Resolved, That the Hon. David T. Patterson, upon taking the oaths required by the Constitution and laws, be admitted to a seat in the Senate of the United States. [The debate is found on pages 4242-4245 of the Congressional Globe referred to in the head-note. ] SATURDAY, July 28, 1866. The Hon. David T. Patterson, elected a Senator by the legislature of the State of Ten- nessee for the unexpired term ending March 3, 1869, appeared, and the oaths prescribed by law being administered by the President pro tempore to Mr. Patterson, he took his seat in the Senate. REPORT OF COMMITTEE. [The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, Poland, ‘stewart, and Hendricks. ] IN THE SENATE OF THE UNITED STATES. JULY 27, 1866.—Submitted. JULY 28, 1866.—Ordered to be printed. Mr. Poland submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Hon. David T. Patterson, Senator-elect from the State of Tennessee, with instructions to report whether said Patterson is legally qualified to hold the office of United States Senator DAVID T. PATTERSON. 331 i said State, have had the same under consideration, and respectfully report as fol- ows: The only question in relation to the qualifications of Mr. Patterson, or hisright to hold his seat in the Senate, arises from the fact of his having held the office of circuit judge in the State of Tennessee after that State had passed an ordinance of secession and be- come a member of the confederacy. Circuit judges in Tennessee are elected by the people of the several circuits, and hold their offices for the term of eight years. Judge Patterson was elected judge in one of the circuits in Eastern Tennessee in May, 1854, and his term of office had not expired when the State passed the ordinance of seces- sion. The constitution of the State of Tennessee remained the same after the secession of the State as before, and there was no change made in the form of the State govern- ment, or in their judicialsystem. A large majority of the people of East Tennessee were ardently devoted to the Union and deemed it very important for their interest and that of the Union cause that the civil offices in that section of the State should be filled with Union men. Judge Patterson was a firm, avowed, and influential Union man, and he was urgently pressed by the Union men of that circuit to run as a candidate for re-election as circuit judge, and he finally, though reluctantly, consented to do so. The opposing candidate was an avowed secessionist, and the issue in the election was between Union and seces- sion. The election was held in May, 1862, and Judge Patterson was elected over his rebel competitor by a large majority. At the same election most of the local offices in that section were filled by the election of Union men. At that time it was believed by the Union men of East Tennessee that they would soon be relieved from rebel mili- tary rule by the arrival of Union forces; and they desired also to retain the civil power in their own hands. In this expectation they were disappointed, and soon rebel bands were scattered through that region, and the Union people were subjected to great hard- ships and cruel oppression. When Judge Patterson was thus re-elected judge he did not suppose he would be commissioned by the governor of the State, who was a seces- sionist; but, after some considerable delay, a commission was sent to him with peremp- tory orders to take the oath. On the receipt of his commission and order to take the oath, Judge Patterson delayed and hesitated, and consulted other leading Union men as to the proper course for him to take. They advised and urged him to take the oath; that he could thereby afford protection to some extent to Union men against acts of law- less violence on the part of the rebels, and that if he did not accept the office and take the oath the office would be filled by a rebel, and they would then be oppressed by the civil as well as the military power of the rebels. Judge Patterson yielded to their urgency and arguments, and went before a magistrate and took the oath which the Ten- nessee legislature had prescribed, which, in substance, was that he would support the constitution of Tennessee and the constitution of the ConfederateStates. Judge Patter- son declared at the time to the magistrate that he owed no allegiance to the confederate government, and that he did not consider that part of the oath as binding him at all. At this time there were rebel troops in the neighborhood, and Judge Patterson had good reason to believe that his refusal to take the oath would subject him to arrest and im- prisonment, if not worse treatment; but we do not find that he was actuated at all by personal considerations, but acted solely upon the motive that he could thereby afford some aid and protection to the Union people, and also prevent the office from falling into hands that would use it to oppress them. East Tennessee at this time was in a very disturbed and distracted condition. The country was full of bands of armed rebels, and lawless violence held sway. Business was nearly suspended, and no civil business was done in the courts. Judge Patterson held a few terms of court in counties where he could organize grand juries of Union men, and in this way did something toward preserving peace and order in the com- munity. No other business was done by him asjudge after his election in 1862. During all this time Judge Patterson was an open, avowed, and devoted adherent to the Union. He was in constant communication with the officers of the Federal troops nearest that vicinity, and obtained and furnished to them information as to the move- ments of the rebels. He aided in concealing Union men, and in facilitating their escape to the Union lines, when they generally entered the Union service. He aided the Union people and the Union cause in every way open to him, and too numerous for detail. By these means he became amenable to the hostility of the secessionists, and was subjected to great difficulty aud danger. He was several times arrested and held for some time in custody. At times he was obliged to conceal himself for safety, and spent nights in out- buildings and in the woods to avoid their vengeance. In September, 1863, the Federal troops reached Knoxville, and Judge Patterson suc- ceeded in escaping with his family to that place, and did not return to his home until] after the close of the rebellion. 332 SENATE ELECTION CASES. As before stated, the constitution and election laws and judicial system of Tennessee remained the same atter the secession of the State as before, and Judge Patterson was elected judge the last time under the same State constitution and laws as existed at his first election, and no laws were enforced by him as judge except such as were in force before the secession of the State. The committee are all satisfied that during the entire rebellion Judge Patterson was an earnest, firm, and devoted Union man, and suffered severely in support of his princi- ples. In accepting the office of judge, and taking the official oath, he did not intendany hostility to the authority or Government of the United States, nor did he intend to ac- knowlege any allegiance to, or any friendship for, the confederate government, but acted throughout with a sincere desire to benefit and preserve the Union and the Government of the United States. He always denied the authority of the confederate government over him, and feels an entire willingness and ability to take the oath required upon his admission to a seat in the Senate. The committee recommend the following resolution: Resolved, That the Hon. David T. Patterson is duly qualified and entitled to hold a seat in the Senate of the United States as a Senator from the State of Tennessee. Os co eo PHILIP F. THOMAS. [Fortieth Congress—First and second sessions. ] PHILIP F. THOMAS, of Maryland. March 18, 1867, the credentials of Mr. Thomas, elected for the term beginning March 4, 1867, were presented. The following day the credentials were referred to the Committee on the Judiciary, who were authorized by a resolution of March 20 to send for persons and papers. December 18, the committee submitted the evidence taken, and reported that they found nothing sufficient to debar Mr. Thomas from his seat unless it be found in the fact of his son having entered the service of the confederacy, and in the circumstances connected therewith, in regard to which point the com- mittee express no opinion, A resolution was then submitted that Mr. Thomas be admitted to the seat. February 20, 1868, the Senate resolved that Mr. Thomas “ having voluntarily given aid, coun- tenance, and encouragement to persons engaged in armed hostility to the United States” was not entitled to take the oath of office or hold the seat. Some Senators maintained that in a case of doubt, where there is absence of evidence showing conclusively that a person had thus voluntarily given aid, &c., the person should be admitted if willing to take the oath of office. Extracts from speeches given below show the conduct of Mr. Thomas which was claimed to be ‘“‘ voluntarily giving aid,” &c. _ The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to it from Senate Journals, 40th Cong.; the report of the committee from Senate Reports, 40th Cong., 2d sess., No. 5, with the exception of the evidence and documents printed with it; and ex- wacte Tor speeches from Congressional Globe, 2d sess, 40th Cong., part 1, page 679, and part 2, page f Special references to the debates of each day are inserted below. Monpay, March 18, 1867.. Mr. Johnson presented the credentials of the Hon. Philip F. Thomas, elected a Sen- ator by the legislature of the State of Maryland for the term of six years commencing on the 4th day of March, 1867; which were read. On motion by Mr. Howard that the credentials be referred to the Committee on the Judiciary, After debate, On motion by Mr. Grimes, Ordered, That the further consideration of the motion be postponed to to-morrow. [The debate is-found on pages 171-180 of the Congressional Globe, 1st sess. 40th Cong. ] . TUESDAY, March 19, 1867. The Senate resumed the consideration of the motion of Mr. Howard of yesterday, to refer the credentials of the Hon. Philip Francis Thomas, elected a Senator by tbe legis- lature of the State of Maryland, for the term commencing on the 4th day of March, 1867, to the Committee on the Judiciary; and the motion was agreed to. WEDNESDAY, March 20, 1867. Mr. Howard submitted the following resolution; which was considered by unanimous consent, and agreed to: .“* Resolved, That the Committee on the Judiciary, to whom have been referred the credentials of Hon. P. F. Thomas, lately chosen a Senator of the United States by the legislature of Maryland, be authorized to send for persons and papers for the purposes of said reference.’’ WEDNESDAY, March 27, 1867. Mr. Howard presented a letter from the president of the National Bank of Commerce of New York, addressed to him, accompanied by the annual statement to the sharehold- ers of the Bank of Commerce, in New York, May 12, 1862; which was referred to the Committee on the Judiciary. [A statement by Mr. Howard is found on page 372 of the Congressional Globe, 1st sess. 40th Cong. ] TUESDAY, April 2, 1867. Mr. Johnson presented a letter addressed to him by the Hon. Fhilip F. Thomas, Sen- ator-elect from the State of Maryland, relating to a report of the Bank of Commerce to their shareholders, dated March 12, 1862, and presented to the Senate on the 27th of March last by the Hon. Mr. Howard; which, with the accompanying papers, was re- ferred to the Committee on the Judiciary. [The debate is found on pages 821-824 of the Congressional Globe, Ist sess. 40th Cong.] 334 SENATE ELECTION CASES. WEDNESDAY, December 18, 1867. Mr. Johnson, from the Committee on the Judiciary, to whom were referred on the 20th of March last the credentials of Philip F. Thomas, Senator-elect from the State of Mary- land, beg leave to report: That they have taken the evidence submitted herewith, and that they find nothing sufficient, in the opinion of the committee, to debar said Thomas from taking his seat, unless it be found in the fact of the son of said Thomas having entered the military service of the confederacy, and in the circumstances connected with that fact or relating to it, and without the expression of an opinion in regard to this point, they re- port the whole evidence to the Senate. {The committee consisted of Messrs. Trumbull, Stewart, Frelinghuysen, Edmunds, Conkling, Johnson, and Hendricks. ] On motion by Mr. Johnson, Ordered, That the report and accompaaying evidence be printed. Mr. Johnson submitted the following resolution for consideration: ‘‘Resolved, That the Hon. Philip F. Thomas, Senator-elect from Maryland, be admitted M7 his seat on his taking the oaths prescribed by the Constitution and laws of the United ‘tates. ’? Ordered, That it lie on the table, and be printed. Monpay, January 6, 1868. On motion by Mr. Johnson, the Senate proceeded to consider the resolution submitted by him on the 18th of December, to admit Philip F. Thomas, a Senator-elect from the State of Maryland, to his seat in the Senate; and, After debate, Ordered, That the further consideration of the resolution be postponed to to-mor- row. [The debate is found on pages 320-330 of the Congressional Globe, part 1, 2d sess. 40th Cong. ] Monpay, January 20, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson on the 18th of December, to admit Philip F. Thomas, Senator-elect from the State. of Mary- land, to his seat in the Senate; and, After debate, and the consideration of executive business, the Senate adjourned. [The debate is found on pages 632-635 of the Congressional Globe, part 1, 2d sess. 40th Cong. ] TUESDAY, January 21, 1868. The Senate resumed, &c. {The debate is found on pages 653--662 of the Congressional Globe, part 1, 2d sess. 40th Cong. ] 3 WEDNESDAY, January 22, 1868. The Senate resumed, &c. [The debate is found on pages 678-686 of the Congressional Globe, part 1, 2d sess. 40th Cong. ] WEDNESDAY, Februarg 12, 1868. The Senate resumed, &c. THURSDAY, February 13, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson on the 18th December last, to admit Philip F. Thomas, Senator-elect from the State of Maryland. to his seat in the Senate. On motion by Mr. Sumner to amend the resolution by striking out all after the word “‘resolved,’’? and inserting in lieu thereof the following: “That Philip F. Thomas, Senator-elect from Maryland, cannot be admitted to take the oath of office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal house to serve as a rebel soldier, and gave him at the time $100 in money, all of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to the rebellion, which he was forbidden to give; and further, inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other proper authorities, according to the requirement of the statute in such cases, he was guilty of misprision of treason as defined by existing law,’’ After debate, the Senate adjourned. [The debate is found on pages 1144-1156 of the Congressional Globe, part 2, 2d sess. 40th Cong. ] PHILIP F. THOMAS. 335 Fripay, February 14, 1868. The Senate resumed, &c. [The debate is found on pages 1165-1177 of the Congressional Globe, part 2, 2d sess. 40th Cong. ] Monpay, February 17, 1868. The Senate resumed, &c. (The debate is found on pages 1205-1210 of the Congressional Globe, part 2, 2d sess. 40th Cong. ] Turspay, February 18, 1868. The Senate resumed, &c. ” ha debate is found on pages 1232-1243 of the Congressional Globe, 2d sess. 40th ong. WEDNESDAY, February 19, 1868. The Senate resumed the consideration of the resolution submitted by Mr. Johnson, on the 18th of December last, to admit Philip F. Thomas, Senator-elect from the State of Maryland, to his seat in the Senate; and the question being on the amendment proposed by Mr. Sumner to the resolution, After debate, Mr. Sumner withdrew his amendment to the said resolution. On motion by Mr. Conkling to amend the resolution by striking out all after the word ‘resolved,’ and inserting in lieu thereof: ‘That, in the judgment of the Senate, Philip F. Thomas, Senator-elect from Mary- land, cannot with truth take the oath prescribed by the act of Congress approved July 2, 1862, and that therefore he be not allowed to take said oath,”’ After further debate, Mr. Conkling withdrew his amendment to the said resolution; and The question then recurred on agreeing to the resolution submitted by Mr. Johnson; and After further debate, it was determined in the negative—yeas 21, nays 28. On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Frelinghuysen, Grimes, Hendricks, Johnson, Nor- ton, Patterson of Tennessee, Ross, Saulsbury, Tipton, Trumbull, Van Winkle, Willey, and Williams. Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Cragin, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Thayer, Wade, Wilson, and Yates. So the resolution was not agreed to; and Thereupon Mr. Drake submitted the following resolution for consideration: “¢ Resolved, That Philip F. Thomas, having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States, is not entitled to take the oath of office as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the President pro tempore of the Senate inform the governor of the State of Maryland of the action of the Senate in the remises.’’ es The Senate proceeded to consider the said resolution; and On the question to agree thereto, it was determined in the affirmative—yeas 27, nays 20. On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators resent, - Those who voted in the affirmative are Messrs. Cameron, Cattell, Chandler, Conkling, Conness, Corbett, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Thayer, Wade, Wilson, and Yates. Those who voted in the negative are Messrs. Anthony, Bayard, Buckalew, Cole, Davis, Dixon, Doolittle, Fessenden, Frelinghuysen, Hendricks, Johnson, Norton, Patterson of Tennessee, Ross, Saulsbury, Tipton, Trumbull, Van Winkle, Willey, and Williams. So it was Resolved, That Philip F. Thomas, having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States, is not entitled to take the oath of office as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the President pro tempore of the 336 SENATE ELECTION CASES. Senate inform the governor of the State of Maryland of the action of the Senate in the premises. [The debate is found on pages 1260-1271 of the Congressional Globe, part 2, 2d sess. 40th Cong. ] [Extract from remarks of Mr. Doolittle, of Wisconsin, in support of the right of Mr. Thomas, deliv- ered be es es January 22, 1868, and found on page 679 of the Congressional Globe, part 1, 2d sess. ong. ‘*Now, Mr. President, the two facts which are relied upon by those who oppose the admission of Mr. Thomas are these: First, that he resigned his office in the Cabinet of Mr. Buchanan; and second, that when his son left him to join the rebellion, he gave his son $100 in money. I maintain that both of those facts are susceptible of a double con- struction. I admit you may give a construction to either of them which would tend to show his guilt, that he sympathized with or countenanced the rebellion; but I maintain, on the other hand, that both of those facts are entirely consistent with his innocence. Take the first fact, the fact of his resignation. It is said that he resigned his position in the Cabinet of Mr. Buchanan because he did not believe with Mr. Buchanan that he had aright to maintain a military force in the harbor of Charleston. That is what is alleged. Suppose that to be true; does that show that Mr. Thomas was in favor of the rebellion? It shows that Mr. Thomas had a wrong opinion as to the power of this Government. It shows that Mr. Thomas was of opinion that the Government either had.not the power or that it would be against good policy for the Government to exert the power by force to hold the harbor of Charleston. “Do we not know it to be a fact that hundreds and thousands of men from their edu- cation were led to believe and did believe that the Government of the United States had not the power by force of arms to hold a State in the Union? The great mass, I may say, of the Southern people were educated in that belief. I have no doubt that a great many persons in the State of Maryland were educated in that belief, and had been for a whole generation. The right of a State to separate from the Union was a doctrine which had been inculcated in all the States of the South, in the universities of the South, in the pulpits of the South, in the press of the South. I may say that a whole generation had been reared under the trainings and teachings of that very doctrine, that a State had a right to withdraw itself from the Union, and that the allegiance which the citizen owed in any State was an allegiance to the State first, and to the Union afterward. I agree that this is a most fatal heresy, a heresy which led to this rebellion, and which bathed the whole land in blood, costing the South two hundred thousand or three hun- dred thousand of the lives of their ablest and strongest and best, and costing us half a million more. But, sir, it was an opinion entertained by many, and even if Mr. Thomas entertained that opinion I maintain that the holding of that opinion was not of itself treasonable. It did not make him guilty in any respect of the crime of treason, unless he gave his countenance and support to the rebellion. ‘What does he say im this letter of resignation? He says that he is not able to con- cur in the views entertained by President Buchanan ‘touching the authority, under existing laws, to enforce the collection of the customs at the port of Charleston.’ He states to Mr. Buchanan that he does not agree with him in opinion, and for that reason he proposes to withdraw from the Cabinet. Is there in that fact anything which goes to show that Mr. Thomas was in favor of the rebellion? No,sir. It mayshow that Mr. Thomas did not believe that we had the power by force of arms then to enforce the col- lection of the revenues in the harbor of Charleston. You remember that as long ago as 1833 a question arose about enforcing the revenue laws in the harbor of Charleston, and the celebrated force bill was brought forward and passed in 1832 or 1833, I believe. But that law was not standing upon the statute-book in1860. That law was only temporary, and Mr. Thomas may have been of the opinion that it required new legislation on the part of Congress before you could resort to force to collect the duties in the harbor of Charleston; and because he disagreed with Mr. Buchanan, rather than embarrass him he tendered his resignation and retired from the Cabinet. I insist that this act of Mr. Thomas is susceptible of a construction in accordance with his entire innocence of any connection with the rebellion. ‘Then, as to the other fact—the fact that he gave to his son on the morning when he left home $100 in money—I agree that if he gave that money to his son with a view to aid him on his way to the rebellion it would be susceptible of a construction which would make him guilty of aiding the rebellion. But, sir, whatare the facts stated? His son states that he had made his arrangements to go, that he had determined to go, that he informed his father that he was then ready to go, and would go. The father told him the ground, and the only ground, upon which he gave him this money. It was not to aid him to go to the rebellion, but that in case he was imprisoned or in suffering he might have asum of money with him. It was the prompting of his paternal heart, PHILIP F. THOMAS. 337 while with tears in his eyes he was protesting against his son going. I submit that this is susceptible of two constructions; and if it be susceptible of two constructions, one of which is consistent with his innocence, we are bound, in the ordinary charity which Se iasten justice among men, to give to it the innocent rather than the guilty con- struction. ‘‘Mr. President, we may establish here a precedent of the most dangerous character. When the person elected, against whose veracity I believe no one has ever raised a ques- tion, whose private character as an individual stands above reproach, comes here and is ready in the presence of this Senate and of Almighty God to put his hands upon the Gos- pels and take the oath that he never did countenance or aid the rebellion in any way whatever, I say, in the absence of any evidence which goes to show conclusively, against any reasonable doubt, that he is guilty, we are bound to receive him. We tender this oath to him; we make him the witness in the case. In equitable proceedings, if a party chooses to make the other party his witness, he is bound by his testimony. And I say if we choose to put this oath to the applicant and call him here to swear whether he is loyal to the Government of the United States or not, and if he is willing to do it, know- ing him as we do, his character as it stands before us being above reproach as an indi- vidual, what right have we not to believe the statement which he makes if the facts which appear are susceptible of a construction in accordance with innocence rather than with guilt ?”* (Extract from remarks of Mr. Sumner, of Massachusetts, against the right of Mr. Thomas, delivered in the ere February 18, 1868, and found in the Congressional Globe, part 2, 2d sess. 40th Cong., page 1145. “A great debate on the question how loyalty shall be secured in the rebel States is for the time silenced in order-to consider how loyalty shall be secured in this Chamber Everywhere in the rebel States disloyal persons are struggling for power; and now at the door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this Chamber, how can we hope to overcome it elsewhere? ‘“More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the fourteenth constitutional amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty as a ‘qualification.’ Formerly we were left to something in the nature of inference; now the requirement is plain as language can make it. By thenew amendmentit is provided that ‘no person shall be a Senator or Representative in Congress who, having previously ‘aken an oath as a member of Congress, or as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.’ “These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in thestatutes, but in the Constitu- tion. It is the plain declaration that loyalty is a requirement in a Senator and Repre- sentative. If we do not apply it to ourselves now itis difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this constitutional amendment, if not its validity for the future. “T do not stop to argue the question, if that amendment is now a part of the Consti- tation; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with tworemarks: first, the amendment has already been adopted by three-fourths of the States that took part in proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, secondly, it has already been adopted by ‘the legislatures of three-fourths of the several States’ which have legislatures, thus complying with the letter of the Constitution. Therefore by the spirit of the Constitution, and also by its letter, this amendment is now a part of the Constitution, binding on all of us. As such I invoke its application to this case. In face of this positive peremptory requirement it is impossible to see how loyalty can be other than a ‘qualification.’ In denying it you practically set aside this amend- ment. “But even without this amendment, I cannot doubt that the original text is sufficiently clear and explicit. It is nowhere said in the Constitution that certain specified require- ments and none others shall be ‘qualifications’ of Senators. The word ‘qualifications,’ which plays such a part in this case, occurs in another connection, where it is provided that ‘each House shall be the judge of the elections, returns, and qualifications of its own members.’ What these ‘qualifications’ may be is to be found elsewhere. Searching the Constitution from beginning to end we find three ‘qualifications,’ which come under the head of form, being (1) age, (2) citizenship, and (3) inhabitancy in the State. But be- hind and above these is another ‘qualification,’ which is of substance, in contradiction to form only. So supreme is this that it is placed under the safeguard of anoath. This is loyalty. It is easy tosee how imfinitely more important is this than either of the others— S. Doe. 11 22 338 SENATE ELECTION CASES. than age, than citizenship, or than inhabitancy in the State. A Senator failing ia either of these would be incompetent by the letter of the Constitution; but the Republic might not suffer from his presence. On the other hand, a Senator failing in loyalty is a public enemy, whose presence in this council Chamber would bea certain peril to the Republic. ‘It is vain to say that loyalty is not declared to bea ‘qualification.’ Idenyit. Loy- alty is made a ‘qualification’ in the amendment to the Constitution; and then again in the original text, when in the most solemn way possible it is distinguished and guarded by an oath. Men are familiarly said to ‘ qualify’ when they take the oath of office, and thus the language of common life furnishes an authentic interpretation to the Constitu- tion. ‘But no man can be allowed to take the oath as Senator when, on the evidence before the Senate, he is not competent. If it appear that he is not of' sufficient age, or of the required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially if it appear that he fails in the all-important ‘qualification’ of loyalty, he cannot be allowed to go to thatdesk. A false oath, taken with our knowledge, would compromise the Senate. We who consent will become parties to the falsehood. We shall be parties in the offense. It is futile to say that the oath is one of purgation only, and that it is for him who takes it to determine on his conscience if he can take it. The Senate cannot forget the evidence; nor can its responsibility in the case be swallowed up in any process of individual purgation. On the evidence we must act and judge accordingly. The ‘open sesame’ of this Chamber must be something more than the oath of a suspected applicant. “‘ According to Lord Coke, ‘an infidel cannot be sworn’ as a witness. This was an early rule which has since been softened in our courts. But under the Constitution of the United States and existing statutes a ‘ political infidel cannot be sworn’ as a Senator. Whatever may be his inclination or motive he must not be allowed to approach your desk. The country has a right to expect that all who enter here shall have a sure and well-founded loyalty, above all question or ‘suspicion.’ And such I insist is the rule of the Constitution and of Congress. “ As if to place the question beyond all doubt, Congress by positive enactment requires that every Senator, before admission to his seat, shall swear that he has ‘voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hos- tility’ to the United States. Here is little more than an interpretation of the Constitu- tion. The conclusion is plain. No person who has voluntarily given even ‘countenance’ or ‘encouragement’ to another engaged in the rebellion can be allowed to take that oath. ‘‘ After this statement of the rule, the question arises, if Philip F. Thomas can be per- mitted to take the oath at your desk, or, in other words, to ‘qualify’ as a Senator of the United States. Is he competent? This is a question of evidence. ‘The ample discussion of the facts in this case, and their singular plainness, super- sede the necessity of all details. The atmosphere about Mr. Thomas and his acts are harmonious. From the beginning we find him enveloped in coldness and indifference while his country was in peril. But, observing him more closely, we are shocked by two acts of positive disloyalty, one of which is the natural prelude of the other. The first muttering of the rebellion found him a member of the Cabinet of Mr. Buchanan; but when this uncertain President proposed the succor of our troops at Charleston, already menaced with war, Mr. Thomas withdrew from the patriotic service. He resigned his seat, following the lead of. Cobb, Thompson, and Floyd. A man is known by the com- pany he keeps. His company at this time were traitors. And the act they united in doing was essentially disloyal. As the rebellion assumed the front of war they all aban- doned their posts—some to join the rebellion and mingle with its armies; Mr. Thomas more prudently to watch the course of events in Maryland, ready to lift his arm also if his State pronounced the word. This concerted desertion was in itself a conspiracy against the Government; and, in the case of Mr. Thomas, who was Secretary of the Treas- ury, it was a blow at the national credit, which it was his special duty toguard. It was an act of disloyalty to be blasted by indignant history, even if your judgment fails now. And this was the first stage in this record. ‘“‘Meanwhile the war rages. Armies are marshaled. Battles ensue. Washington itself is beleaguered. The Republic trembles with peril. But Mr. Thomas continues in the seclusion of his home, enveloped in the same disloyal atmosphere, and refusing always the oath of allegiance. At last in 1863an only son arrives at the age of eighteen. Though still a minor he is already of the military age. Naturally filled with the senti- ments of his father’s fireside, he seeks to maintain them by military service. Heis like his father, but with the ardor of youth instead of the caution of years. He avows his purpose to enlist in the rebel army, thus to levy war against his country and adhere to its enemies. All this was treason—plain, palpable, unquestionable, downright treason. Instead of detaining his son; instead of keeping him back; instead of interposing a pa- ternal veto; instead of laying hands gently upon him; instead of denouncing him to the PHILIP F. THOMAS. x 339 magistrate, all of which the father might have done, he deliberately lets him go, and then, to cap the climax of criminal complicity, furnishes the means for his journey and his equipment. He gives $100. The father is not rich, and yet he gives this consider- able sum. Few soldiers started with such ample allowance. Thus it stands. The father, who has already deserted his post in the Cabinet and has refused to take the oath of allegiance to his country, contributes a soldier to the rebellion, and that soldier is his only son. Tocomplete and assure the great contribution, he contributes a sum of money also. If all this accumulated disloyalty, beginning in a total renunciation of every .pa- triotic duty, and finally consummated by an act of flagrant, unblushing enormity, is not ‘aid and comfort’ or ‘countenance’ or ‘encouragement’ to the rebellion, it is difficult to say what can be. There must be new dictionaries for these familiar words, and they must receive a definition down to this day unknown. They must be treated as thread or gos- samer, when they should be links of iron. 340 SENATE ELECTION CASES. [Fortieth Congress—Second session. ] JOHN T. JONES anp AUGUSTUS H. GARLAND vs. ALEXAN. DER McDONALD anp BENJAMIN F. RICH, of Arkansas. Arkansas had been without representation in Congress from 1861. June 23, 1868, the credentials of Mr. McDonald and Mr. Rice, elected April 15,1868, to fill the unexpired terms ending March 3, 1871 and 1878, were presented. On the same day there were presented from the files of the Senate creden- tials of Mr. Jones and Mr. Garland, purporting to be certificates of their elections for the same terms. The two latter credentials had been originally presented to the Senate and ordered to lie on the table in the years 1866 and 1867, soon after the eeepc elections. They were again ordered to lie on the table. It appears from the debate that the elections of Messrs. Jones and Garland took place when a provisional government existed in Arkansas. A motion was then made that the cre- dentials of Messrs. McDonald and Rice be referred to the Committee on the Judiciary. The motion was determined in the negative, and Messrs. McDonald and Rice took their seats. It appears from the debate on their credentials that some Senators were of opinion that the credentials should be referred to a committee for the reasons that they did not in some particulars conform to the act of July 25, 1866, regulating the election of Senators,and that the election had taken place before the passage of the act declaring Arkansas entitled to representation in Congress. 2 The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 40th Cong., 2d sess. The debate is found on pages 8384-3389 of the Congressional Globe, part 4, 2d sess. 40th Cong. TUESDAY, June 23, 1868. Mr. Thayer presented the credentials of Benjamin F. Rice, elected a Senator by the legislature of the State of Arkansas for the unexpired term commencing on the 4th day of March, 1867; which were read. Mr. Thayer presented the credentials of Alexander McDonald, elected a Senator by the legislature of the State of Arkansas for the unexpired term commencing on the 4th day of March, 1865; which were read. Mr. Davis presented from the files of the Senate papers purporting to be the credentials of John T. Jones and Augustus H. Garland, chosen Senators by the legislature of the State of Arkansas for the unexpired terms commencing on the 4th day of March, 1865, and on the 4th day of March, 1867. Mr. Howard submitted a motion that the papers presented by Mr. Davis lie on the table. Mr. Hendricks asked to have the papers read; and Objection being made thereto, The President pro tempore submitted the question to the Senate, to wit: Shall the papers be read? and it was determined in the affirmative—yeas 30, nays 16. On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bayard, Cole, Conkling, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Fessenden, Fowler, Harlan, Henderson, Hen- dricks, Johnson, McCreery, Morgan, Morrill of Vermont, Morton, Patterson of New Hamp- shire, Patterson of Tennessee, Ramsey, Ross, Sherman, Sprague, Trumbull, Van Winkle, Willey, and Yates. Those who voted in the negative are Messrs. Cattell, Chandler, Conness, Ferry, Freling- huysen, Howard, Howe, Morrill of Maine, Nye, Pomeroy, Stewart, Sumner, Thayer, Tip- ton, Wade, and Wilson. So it was decided that the papers be read; and The Secretary having read the same, the question recurred on the motion of Mr. How- ard that the papers presented by Mr. Davis lie on the table; and On the question to agree thereto, it was determined in the affirmative. A motion was then submitted by Mr. Davis that the credentials of Benjamin F. Rice and the ae of Alexander McDonald be referred to the Committee on the Judi- ciary; an On the question to agree thereto, it was determined in the negative; and The oaths prescribed by law were administered to Mr. Rice and Mr. McDonald by the President pro tempore, and they took their seats in the Senate. MARVIN VS. OSBORN. 341 [Fortieth Congress—Second seasion. } WILLIAM MARVIN vs. THOMAS W. OSBORN, of Florida. Florida had been without representation in Congress from 1861. June 80, 1868, the credentials of Mr. Osborn, elected to fill the unexpired term ending March 3, 1873, were presented, They were signed by Harrison Reed, governor, and certified that he had been elected June 18, 1868. A motion was made that the credentials be referred to the Committee on the Judiciary. It appears from the debate that by a resolution of the Florida legislature the thirteenth and fourteenth amendments had been “adopted.” It was maintained by some that this was not a sufficient ‘ ratification” of the amendments. Pending debate on the motion to refer Mr. Osborn’s credentials, the credentials of Mr. Marvin, claiming to have been elected for the same term, were presented. They were signed by David S, Walker as governor, and certified that Mr. Marvin had been elected November 28, 1866. The motion to refer Mr. Osborn’s credentials to a committee was determined in the negative, and Mr. Osborn was admitted to the seat. No further action was taken on Mr. Marvin’s credentials. It appears from the debate on them that Mr. Marvin had been elected before Congress had declared that Florida was entitled to representation in Congress, it having declared that Florida was not en- titled to arpoint electors for President and Vice-President. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 40th Cong., 2d sess. The debates are found on pages 3598-3607 of the Congressional Globe, part 4, 2d sess. 40th Cong. TUESDAY, June 30, 1868. Mr. Howe presented a resolution of the legislature of the State of Florida ratifying the amendments to the Constitution of the United States known as Articles XIII and XIV; which was read. Mr. Howe presented the credentials of Thomas Ward Osborn, elected a Senator of the United States by the legislature of the State of Florida for the unexpired ‘term com- mencing March 4, 1867; which were read. A motion was made by Mr. Drake that the resolution of ratification of the legislature of Florida and the credentials of Mr. Osborn be referred to the Committee on the Judi- ciary. After debate, Mr. Doolittle presented a paper purporting to be the credentials of William Marvin, elected a Senator of the United States by the legislature of the State of Florida on the 28th of November, 1866, for the term of six years commencing on the 4th day of March, 1867, and asked that the paper be read. Objection to the reading of the paper having been made by Mr. Howe, The President pro tempore submitted the question to the Senate, Shall the paper be read? and it was determined in the affirmative; and The said paper having been read, the question recurred on the motion of Mr. Drake to refer the resolution of the legislature of Florida and the credentials of Mr. Osborn to the Committee on the Judiciary. On the question to agree thereto, it was determined in the negative—yeas 16, nays 30. On motion by Mr. Conness, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Anthony, Buckalew, Davis, Doolittle, Drake, Edmunds, Fessenden, Hendricks, Howard, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Norton, Patterson of New Hampshire, and Vickers. Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howe, McDonald, Morgan, Morton, Nye, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Wade, Willey, Williams, Wilson, and Yates. So the motion of Mr. Drake was not agreed to. Mr. Howe submitted a motion that the oaths prescribed by law be now administered to Mr. Osborn. A motion was made by Mr. Drake that the credentials of Mr. Osborn lie on the table, and that the resolution of the legislature of Florida ratifying the amendments to the Constitution of the United States be referred to the Committee on the Judiciary. Mr. Conness raised the question of order, to wit, that the motion to administer the oaths of office to Mr. Osborn having been first made, and being in the nature of a priv- ileged question, had precedence over the motion of Mr. Drake. The President pro tempore sustained the question of order raised by Mr. Conness, and decided the motion of Mr. Drake not in order; and 342 SENATE ELECTION CASES. On the question, Shall the oaths prescribed by law be now administered to Mr. Os- orn ? On motion by Mr. Drake that the further consideration of said question be postponed to to-morrow, it was determined in the negative—yeas 13, nays 31. On motion by Mr. Conness, the yeas and nays being desired by one-fifth of the Sen- ators present, : Those who voted in the affirmativeare Messrs. Anthony, Buckalew, Corbett, Davis, Doo- little, Drake, Edmunds, Fessenden, Hendricks, McCreery, Morrill of Vermont, Norton, and Vickers. Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conk- ling, Conness, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, McDonald, Mor- gan, Morrill of Maine, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ranisey, ee Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, Willey, Williams, Wilson, and Yates. So the motion to postpone the farther consideration of the question to administer the vaths to Mr. Osborn was not agreed to; and On the question, Shall the oaths prescribed by law be now administered to Mr. Os- born? it was determined in the affirmative—yeas 33, nays 6. On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators present Those who voted in the affirmative are Messrs. Cameron, Cattell, Chandler, Cole, Conk- ling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghuysen, Harlan, Howard, McDonald, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hamp- shire, Pomeroy, Ramsey, Ross, Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, Willey, Williams, Wilson, and Yates. Those who voted in the negative are Messrs. Buckalew, Davis, Doolittle, Johnson, McCreery, and Vickers. So the motion was agreed to; and The oaths prescribed by law were administered to Mr. Osborn by the President pro tempore, and he took his seat in the Senate. WHITELEY AND FARROW VS. HILL AND MILLER. 3843 [Third session, Fortieth Congress, and Forty-first Congress. ] JOSHUA HILL anp H. V. M. MILLER. WHITELEY anp FARROW vs. HILL anp MILLER, Of Georgia. December 7, 1868, the credentials of Joshua Hill, elected for the unexpired portion of the term be- ginning March 4, 1867, were presented. December 10, his credentials were referred to the Committee on the Judiciary. January 11,1869, the credentials of H.V. M. Miller, elected for the unexpired For tion of the term beginning March 4, 1865, were presented and referred to the same committee. Jan- uary 25, 1869,the committee reported on the credentials of Mr. Hill. The chief question to be de- cided was whether Georgia had complied with the conditions of an act providing for her admission to representation. This act provided that ‘no person prohibited from holding office under the United States or any State by section 3 of the proposed amendment to the Constitution of the United States, known as article 14, shall be deemed eligible to any office in said State unless re- lieved from disability as provided in said amendment.’”’ The committee reported that some of the members composing the legislature electing Mr. Hill were disqualified under the above provision ; that the legislature had gone through with the forms of an investigation which did ‘‘ not appear to have been conducted in good faith,” and had found none of the members disqualified; that “the election and qualification of members of the legislature, where the existence of any legisla- ture authorized to act as such is not involved, cannot be inquired into by the Senate in determin- ing the right of a Senator to hisseat;’’ but that ‘‘ the question involved in this case is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a Senator, but whether the body assuming to be the legislature violated the conditions upon which it was allowed to organize by permitting disloyal persons to participate in its proceedings.” The committee submitted a resolution that Mr. Hill ‘ought not now to be admitted” to take his seat. There was a minority report. February 17, 1869, the committee re- ported against admitting Mr. Miller to his seat. There wasno written report. In the next session of Congress the credentials of Messrs. Hill and Miller were again referred to the committee, who reported them back, and they were laid on the table. February 14,1870, in the next sessiun, the credentials were again referred to the committee. A new election having been held, the cre dentials of Richard H. Whiteley, elected for the unexpired portion of the term beginning March 4, 1865, and the credentials of Henry P. Farrow, elected for the unexpired portion of the term beginning March 4, 1867, were presented July 15, 1870, and ordered to lie on the table. No reports were made during this session on the credentials; but an act was passed (approved December 22, 1869) to promote the reconstruction of Georgia; a report was made March 2, 1870 (No.58), on the question whether the legislature had been reorganized in accordance with the provisions of this act; and an act was passed (approved July 15, 1870) declaring that the State was entitled to repre- sentation in Congress. The proceedings of the Senate relating to these acts are not included in the proceedings given below. December 3, 1870, in the next session of Congress, the credentials of Messrs. Whiteley and Farrow were referred to the committee. January 23,1871, the committee reported on the credentials of the four claimants that Messrs. Hill and Miller, elected under the organization of 1868, were duly elected, but that Mr. Miller, having acted as a surgeon in the rebel army, could not take the oath required by the act of July 2,1862. They recommended the adoption of the resolution that Mr. Hill was entitled to his seat. There was a minority report recommending the adoption of a resolution declaring Messrs. Whiteley and Farrow (who had been elected under the organization of 1870) entitled to seats. February 1, 1871, the resolution reported by the com- mittee was agreed to and Mr. Hill took his seat in theSenate. February 24, 1871, a joint resolution prescribing an oath to be taken by Mr, Miller was approved, and Mr. Miller took his seat. The proceedings of the Senate relating to this joint resolution are not included in theextr acts ‘iven below. s The history of the case here given consists of a transcript of the proceedings of the Senate relat- ing to the case from Senate Journals, 3d sess. 40th Cong., and Ist, 2d, and 3d sess. 41st Cong., with ex- tracts from the reports. A portion of report No.58, 2d sess, 41st Cong., referred to above, is included in the report made January 23, 1871, given below. | Special references to the debates of each day are inserted below, and references to the reportsare given in fout-notes. [Third sesson of the Fortieth Congress. ] CREDENTIALS OF MR. HILL. Monpay, December 7, 1868. Mr. Sherman presented the credentials of Joshua Hill, elected a Senator by the general assembly of the State of Georgia for the unexpired portion of the term commencing on the 4th day of March, 1867; which were read. Mr. Drake moved that the said credentials be referred to the Committee on the Judi- ciary when said committee shall have been appointed. Pending debate, ae . Mr. Wilson presented a memorial of the representatives of the colored voters of the State of Georgia, in convention assembled, in relation to the action of the legislature of that State in expelling twenty-nine colored members from the said legislature; which was read ; and, : After further debate, On motion by Mr. Sherman, Ordered, That the credentials of Mr, Joshua Hill lie on the table. [The debate is found on pages 1-5 of Congressional Globe, part 1, 3d sess. 40h Cong.) 344 SENATE ELECTION CASES. THURSDAY, December 10, 1868. On motion by Mr. Sherman, Ordered, That the credentials of Joshua Hill, a Senator-elect from the State of Georgia, together with the letter of the governor of the State of Georgia in relation to the execu- tion of the laws known as the reconstruction laws, and the memorial of the representa- tives of the colored voters of Georgia in convention assembled, in relation to the expul- sion of certain members from the legislature of that State, be referred to the Committee on the Judiciary. : MonpDaAY, January 25, 1869. Mr. Stewart, from the Committee on the Judiciary, to whom were referred the creden- | tials of Joshua Hill, elected a Senator by the legislature of Georgia for the unexpired portion of the term commencing on the 4th day of March, 1867, submitted a report (No. 192), accompanied by the following resolution: : ‘Resolved, That Joshua Hill, claiming to be Senator-elect from Georgia, ought not now to be permitted to take a seat in this body.’’ : : Mr. Trumbull asked and obtained leave of the Senate to present the views of the mi- nority of the Committee on the Judiciary in relation to the right of Joshua Hill, Sen- ator-elect from the State of Georgia, to a seat in the Senate; which were ordered to be printed with the report of the committee submitted by Mr. Stewart. BEPORT OF COMMITTEE ON CREDENTIALS OF MR. HILL—MAJORITY AND MINOBRITY.* [The committee consisted of Messrs. Trumbull (chairman), Stewart, Frelinghuysen, Edmunds, Conkling, Rice, Carpenter, and Hendricks. ] In THE SENATE OF THE UNITED STATES. JANUARY 25, 1869.—Ordered to be printed. Mr. Stewart, from the Committee on the Judiciary, submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Joshua Hill, claiming to be Senator-elect from Georgia, beg leave to submit the following report: The credentials referred to your committee are in the usual form, and if the State of Georgia is entitled to representation in Congress, Mr. Hill ought to be permitted to take his seat. From the fact of the reference, your committee feel called upon to go behind the cre- dentials to ascertain if any reasons exist why Mr. Hill should not be admitted to the Senate. On the 21st of May, 1868, the President transmitted to Congress a proposed constitu- tion for the State of Georgia which had been framed by a convention assembled under the reconstruction acts of Congress and ratified by the people. On the 25th June, fol- lowing, Congress passed an act which, among other things, provided for the admission of Georgia to representation upon compliance with certain conditions therein named, the most important of which was that the legislature of Georgia should duly ratify the amend- ment to the Constitution of the United States known as the fourteenth amendment. The act further provides that after compliance with the required conditions ‘‘the officers of said State duly elected and qualified under the constitution hereof shall be inaugurated with- out delay; but no person prohibited from holding office under the United States or any State by section 3 of the proposed amendment to the Constitution of the United States known as article 14 shall be deemed eligible to any office in said State unless relieved from disability as provided in said amendment.’’ The obvious design of this provision was to prevent the new organization from fallin, under the control of enemies of the United States, so as to defeat the reconstruction o the State. The right of Mr. Hill (if regularly elected) to a seat in the Senate depends upon three important considerations: First. Did the legislature of Georgia, regularly organized in accordance with the Con- stitution of the United States, the laws of Congress, and the constitution of Georgia, duly ratify the fourteenth amendment, and comply with the various conditions imposed by the act of June 25, 1868? Second. Have the legislature and people of Georgia, subsequent to such compliance with said acts of Congress, committed such acts of usurpation and outrage as to place the State in a condition unfit to be represented in Congress ? Third. Whether, on the whole case, taking the action of Georgia both before and since the pretended ratification of the fourteenth amendment, a civil government has been established in that State which Congress ought to recognize? These questions must be answered by the law and the facts. * Taken from Senate Reports, 3d sess. 40th Cong., No.192. The accompanying d pages 5-31 and 88-40 of the report, are omitted. a ie Hocummentts, naw WHITELEY AND FARROW VS. HILL AND MILLER. 345 The district commander, General Meade, by a general order dated June 25, 1868, de- clared the result of the election; Rufus B. Bullock being elected governor, and among the members elected to the legislature in that order were thirty-one colored men—three senators and twenty-eight representatives. (See Exhibit No. 1.) By a proclamation of the governor-elect, in pursuance of the act of June 25, 1868, the legislature of Georgia convened on the 4th July following. On the 8th July the organization of the two houses was effected, and all persons declared elected were allowed to take their seats. When the governor-elect was notified of the action of the two houses, he addressed a communication to General Meade, commander of the district, informing him of the fact, and also that it was alleged that a number of the members of the general assembly who had taken their seats, and one or more officers of that body, were not eligible under the act of June 25, 1868, by reason of their having taken an official oath to support the Con- stitution of the United States, and subsequently had given aid and comfort to the ene- mies thereof. General Meade on the same day replied to the communication, and among other things desired the governor-elect to communicate to the legislature that he could not recognize any act of that’body as valid or allow the same to be executed until satisfactory evidence was produced that all persons excluded by the fourteenth amendment were deprived of their seats in both houses. Whereupon the two houses went through the form of an investigation. But from the evidence before your committee the investiga- tion does not appear to have been conducted in good faith, or with any intention either of finding the facts or of excluding persons known to be disqualified. A committee was appointed in each house. In the senate the majority of the committee found all the members qualified; but there was a minority report which gave an abstract of the evi- dence and found four senators disqualified, The evidence consisted of the admissions of the senators themselves; which if true, they should have been excluded. Yet thesenate passed a resolution, under the operation of the previous question, admitting them all. These facts appear in the official correspondence between Governor Bullock and General Meade in regard to the organization of the Georgia legislature. (See Exhibit A.) There were three reports in the house. The majority report found two members disqualified ; one of the minority reports found still another member disqualified, but the other mi- nority report found that all were qualified. The last report was adopted by the house under the operation of the previous question. ‘To illustrate the manner in which the investigation was conducted, a copy of the proceedings of the legislature on the 16th, \7th, and 18th days of July, 1868, as reported in the Atlanta Daily Era, and forwarded to the State Department, is attached to this report. (See Exhibits A, B,andC.) Itis alleged that an impartial investigation would have shown from thirty to forty members of the legislature disqualified under the fourteenth amendment; and although your committee have not been able to fully investigate this matter, but, from the evidence before them, they have little doubt that the number was large, as the exhibit hereto attached will tend to establish. For the purposes of this report, however, your committee did not deem it necessary to ascertain the number of disqualified persons admitted. But the fact that any were knowingly admitted was not only a violation of the fourteenth amendment, and a failure to comply with the requirements of Congress, but manifests a disposition to dis- obey and defy the authority of the United States. If one could be admitted why not all? And will it be contended that if the entire body had been composed of men who had usurped the functions of the legislature, against the express provisions of the reconstruc- tion acts, they could have complied with the provisions of those acts so as to create any obligation on the part of Congress to receive their Senators and Representatives ? Your committee are of opinion that the act of June 25, 1868, which required that the constitutional amendment should be duly ratified, must be held to mean that it must be ratified by a legislature which has in good faith substantially complied with all the re- quirements of law providing for its organization. It is true that after this pretended investigation by the two houses of the eligibility of their members the district com- mander recognized the validity of their proceedings, and permitted the State officers to be inaugurated and the State government to gointo operation. On the 21st day of July the legislature passed a resolution of ratification of the fourteenth amendment and the other resolution required by the act of June 25, 1868. On the 28th of July, 1868, the legislature went into joint convention for the election of United States Senators. Joshua Hill received 110 votes; Joseph E. Brown, 94 votes, and A. H. Stevens, 3 votes, whereupon Mr. Hill was declared elected United States Senator for the term ending March 3, 1873. : It is quite probable that Mr. Hill received votes of persons who were not qualified to hold seats in the legislature more than sufficient to constitute his majority and secure his election, but your committee do not propose to investigate that question. The elec- tion and qualification of members of the legislature, where the existence of any legisla- ture authorized to act as such is not involved, cannot be inquired into by the Senate in determining the right of a Senator to his seat. Your committee hold that the question ° 346 SENATE ELECTION CASES involved in this c:.se is not whether persons not entitled to seats in the legislature were received by that body and allowed to vote upon the election of a Senator, but whether the body assuming to be the legislature violated the conditions upon which it was allowed to organize by permitting disloyal persons to participate in its proceedings. It may be contended that although the matters hereinbefore set forth constitute a failure on the part of the State of Georgia to comply in every respect with the reconstruction acts, yet Congress ought to waive these slight departures and admit their representatives. But an examination into the subsequent proceedings of the legislature of Georgia, and the dis- organized condition of society in that State, leads your committee to the conclusion that all these violations of law were in pursuance of a common purpose to evade the law and resist the authority of the United States. The colored members in the organization of the legislature, as has been stated, were allowed to take their seats. On the 9th of July, 1868, the day after such organization, the following action was had in regard to the three colored senators: ‘Mr. Welch moved that the action taken on yesterday, in regard to the eligibility of certain members, be reconsidered. Agreed to. ° ‘‘Mr. Sherman moved to strike out that portion of Mr. Candler’s resolution which refers to the eligibility of Messrs. Campbell, Wallace, and Bradley. ‘‘Mr. Candler moved to lay the resolution and amendment on the table. “Mr. Bradley, being entitled to the floor, resumed his speech of yesterday, in opposi- tion to the amendment of Mr. Candler, and was followed by Mr. Campbell. ‘The matter was finally referred to the committee on privileges and elections.’’ Thus this vexed question was quietly smothered for the time. But Mr. Candler, on the 25th of July (a few days before the Senatorial election), offered the following resolu- tion, which was laid on the table: “Whereas ex-Governor Joseph E. Brown, one of the ablest lawyers in the Republican party of Georgia, as well as other persons, distinguished for their knowledge of constitu- tional law, held, during the late canvass, that persons of color were not entitled to hold oftice under the existing constitution; and ‘Whereas such persons hold seats as senators on this floor; and ‘Whereas there are laws of vital importance to the people of Georgia to be enacted by the general assembly, the validity of which should not be made uncertain because of a participation of their enactment by persons not entitled, under the constitution, to so participate: Therefore, : “* Be it resolved, That the committee on privileges and elections be directed to inquire into the eligibility of the several persons of color holding seats as senators and report at the earliest day practicable.’’ Mr. Hungerford moved to lay the resolution on the table. The motion prevailed. The question remained unsettled until after the Senatorial election and the adjournment of Congress. But on the 3d of September, 1868, the house of representatives of Georgia expelled twenty-four of its members on account of color, and subsequently expelled two more for the same reason, and on the 11th day of same month the senate expelled two of its members for a like reason, making twenty-eight members of the legislature that were expelled by the two houses without authority of law. For a full account of these proceedings see Exhibit D. After the expulsion of the colored members the persons who received the next highest number of votes for their places, under what is known in Georgia as the Irwin code, were permitted to take their seats. But no investigation as to their eligibility under the fourteenth amendment appears to have been had. (See Exhibit D.) Your committee are of opinion that under the constitution of Georgia there is no dis- tinction in the right to hold office on account of race or color, and they are quite confi- dent that such was the opinion of Congress at the time it approved that constitution. This act of injustice and oppression denied the right of representation of a whole race, constituting nearly one-half of the people of Georgia. It will not be contended that there is no power in this Government to restrain in some form an outrage of this character. It certainly furnishes a strong reason why Congress should not at this time overlook the irregularities in the organization of the legislature of Georgia, and admit her Senators to representation. And this is not all. Your committee have examined the official reports of the various officers connected with the Freedmen’s Bureau in Georgia, and find re- ported 336 cases of murders and assaults with intent to murder upon colored persons by the whites, from January 1, 1868, to November 15 of same year. For all of which there has been no legal redress and scarcely any effort whatever on the part of the author- ities to punish the criminals. And it is stated by these officers that they are unable to report fully as to the number and character of these outrages on account of intimidation of witnesses, which is practiced by the perpetrators of crime. Your committee have no source of official information as to outrages committed upon loyal whites, but it is WHITELEY AND FARROW VS. HILL AND MILLER. 347 represented by various and numerously signed petitions and memorials from the loyal people of Georgia that they are constantly exposed to violence, and are without protec- tion of law. It is a matter of public notoriety that loyal white men are persecuted, murdered, and driven from their homes. Several members of the legislature have been compelled to take refuge at the capital of the State where the national troops are sta- tioned to avoid the violence of the enemies of the United States. The unlawful and vindictive conduct of the legislature tend to confirm these statements and reports, and exclude all hope that the new civil government will afford adequate protection to life and property. Since the withdrawal of the military crime has greatly increased, while punishment for crime has diminished. Wherefore your committee feel called upon to recommend that Mr. Hill be not allowed to take a seat in the Senate for the reason that en is not entitled to representation in Congress, and submit the accompanying res- olution. Resolved, That Joshua Hill, claiming to be Senator-elect from Georgia, ought not now to be permitted to take a seat in this body. I concur in the conclusion of the report that Mr. Hill ought not to be admitted, and agree that the report be made. ROSCOE CONKLING. I concur in the conclusion of the report that Mr. Hill ought not now to be admitted, and agree that the report be made. - FRED’K T. FRELINGHUYSEN. VIEWS OF THE MINORITY. Mr. Trumbull asked and obtained leave to submit the following as the views of the minority; which were ordered to be printed with the report of the Committee on the Judiciary on the credentials of Joshua: Hill, Senator-elect from Georgia: The undersigned, being unable to agree with the majority of the committee in their report upon the credentials of Joshua Hill, claiming to have been duly elected and en- titled to a seat in the Senate from the State of Georgia, begs leave to present the reasons for his dissent. That Hill possesses all the qualifications for a member of the Senate of the United States required by the Constitution; that he is one of the few prominent men residing in a rebel State who remained true to the Union during the war; that he is now and has been at all times thoroughly loyal to the Union; that he is in every re- spect personally unobjectionable; that he was duly elected by the legislature of Georgia, and that his credentials are in due form is not questioned by any one. If he is not entitled to his seat, it must be either because the State of Georgia was not in a condition to entitle her to representation at the time of his election, or because the body which elected him was not the legislature of that State. The former of these propositions, whether Georgia was or is in a condition to entitle her to representation, is not a question for the Senate to decide. The unfortunate dis- agreement which has existed for some years between the President and Congress has, in part, been owing toa disagreement upon this very point; the President insisting that it was for each House of Congress to determine for itself in the admission of mem- bers whether a State was entitled to representation, and Congress insisting that it was for Congress to determine in the first instance whether a State was entitled to represent- ation, and that question being affirmatively settled, it was then for each House to judge for itself of the election, returns, and qualifications of its own members. This contro- verted point was settled by Congress in March, 1866, by the passage through both Houses of the following concurrent resolution: “Resolved by the House of Representatives (the Senate concurring), That, in order to close agitation upon a question which seems likely to disturb the action of the Govern- ment, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to bé in insurrection, no Senator or Repre- sentative shall be admitted into either branch of Congress from any of said States until Congress shall have declared such State entitled to such representation.’’ The reconstruction acts, since indorsed by the people at a popular election, declare that ‘‘until the people of said rebel States shall be by Jaw—not by the action of each House—admitted to representation in the Congress of the United States, any civil gov- ernments which may exist therein shall be deemed provisional only;’’ which is equiv- alent toa declaration that when admitted té representation by law they shall be no longer provisional. ; The supplementary act of March 23, 1867, declares that when the requirements of the reconstruction acts shall have been complied with by any of the rebel States in the formation of a constitution, and ‘‘said constitution shall be approved by Congress, the State shall be declared entitled to representation, and Senators and Representatives 348 SENATE ELECTION CASES. shall be admitted therefrom, as therein provided.’’ This action of Congress, indorsed by the people, determined that neither House of Congress was authorized by itself to admit Senators or Representatives from any of the rebel States till Congress should determine by law that such State was entitled to representation. The converse of the proposition was also equally determined, that it would be the duty of each House to admit duly elected and qualified Senators and Representatives from each of said States whenever Congress shall have determined by law that such State was entitled to rep- resentation. On the 25th of June, 1868, Congress passed the following act: “AN ACT toadmit the States of North Carolina, South Carolina; Louisiana, Georgia, Alabama and Florida to representation in Congress. ‘Whereas the people of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida have, in pursuance of the provisions of an act entitled ‘An act for the more efficient government of the rebel States,’ passed March 2, 1867, and the acts supplement- ary thereto, framed constitutions of State government which are republican, and have adopted said constitutions by large majorities of the votes cast at the elections held for the ratification or rejection of the same: Therefore, ; “* Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each of the States of North Carolina, South Carolina, Louisi- ana, Georgia, Alabama, and Florida shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the amendment to the Constitution of the United States proposed by the Thirty- ninth Congress, and known as article 14, upon the following fundamental conditions: That the constitutions of neither of said States shall ever be soamended or changed as to deprive any citizen or classof citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable toall the inhabitants of said State: Provided, That any alteration of said constitution may be made with regard to the time and place of residence of voters; and the State of Georgia shall only be entitled and ad- mitted to representation upon this further fundamental, condition: that the first and third subdivisions of section 17 of the fifth article of the constitution of said State, ex- cept the proviso to the first subdivision, shall be null and void, and that the general assembly of said State by solemn public act shall declare the assent of the State to the foregoing fundamental condition. “Suc. 2. And be it further enacted, Thatif the day fixed for the first meeting of the legislature of either of said States by the constitution or ordinance thereof shall have passed or have so nearly arrived before the passage of this act that there shall not be time for the legislature to assemble at the period fixed, such legislature shall convene at the end of twenty days from the time this act takes effect, unless the governor-elect shall sooner convene the same. ““Sxc. 3. And be it further enacted, That the first section of this act shall take effect as to each State, except Georgia, when such State shall, by its legislature, duly ratify article 14 of the amendments to the Constitution of the United States, proposed by the Thirty-ninth Congress, and as to the State of Georgia when it shall in addition give the assent of said State to the fundamental condition hereinbefore imposed upon the same; and thereupon the officers of each State duly elected and qualified under the con- stitution thereof shall be inaugurated without delay; but no person prohibited from holding office under the United States, or under any State, by section 3 of the proposed amendment to the Constitution of the United States, known as article 14, shall be deemed eligible to any office in either of said States, unless relieved from disability as provided in said amendment; and it is hereby made the duty of the President within ten days after receiving official information of the ratification of said amendment by the legislature of either of said States to issue a proclamation announcing that fact.” On the very day of the passage of the foroegoing act Rufus B. Bullock, governor-elect of Georgia, issued his proclamation convening the legislature of that State on the 4th of July following. The manner in which the legislature was organized will fully appear from the following extract, taken from the official report of Major-General Meade: “The convention in Georgia, after being in session several months, finally, in March, adopted a constitution, which together with a State ticket was submitted to the people in April, and ratified by a very handsome majority of the registered vote—all parties taking partintheelection. This constitution, with some modifications, was adopted by Congress, and the legislature, which convened in July, making these modifications and otherwise complying with the requirements of the reconstruction laws, the State, together with Alabama.and Florida, were, by act of Congress, formally admitted to representation. “There is one point in regard to the admission of the State of Georgia to which I feel called upon to make special allusion. When the legislature was convened by the pro WHITELEY AND FARROW VS. HILL AND MILLER. 349 visional governor and governor-elect, the question arose whether, as military com- mander, I was called on to inquire into the eligibility of the members, either under the United States laws or the constitution of Georgia. The convention of Georgia had, in its ordinance calling an election, directed that all returns should be sent to the military commander of the district, who was requested to issue the necessary certificates of election. In carrying out this request of the convention I deemed my duty simply required that I should give the member having the greatest number of votes the ordinary certificate of election, and that it would be for each house to decide on the eligibility of those members whose seats were on any grounds contested. Whilst I admitted, as district commander, executing the law, I was to see that no oneineligible to office under the four- teenth article constitutional amendment should be allowed to take office, I did not see that in the case of a parliamentary body I was called on to decide on the qualifications of the members. In this view I was sustained by a telegram sent to me for my infor- mation from the War Department, which had been sent to the governor of Louisiana and the military commander of the fifth district, and which I quote: ‘** WASHINGTON, June 30, 1868. “(To Governor WARMOUTH, New Orleans: ‘‘*We think the persons disqualified under the fourteenth article of the amendment to the Constitution of the United States are not eligible to your legislature. This is to be determined by the respective houses; but no oath can be imposed except the oath pre- scribed by the State constitution. “<¢JAMES WILSON, “Chairman Judiciary Committee. ‘“€GEORGE F. BOUTWELL, “<3. F, FARNSWORTH, “(HE PAINE, * “ Reconstruction Committee.’ ‘Tt will be seen by the above telegram that the distinguished gentlemen whose names were attached were of the opinion, first, that no one ineligible to office under the four- teenth article could take a seat in the legislature; second, that the respective houses were to judge of the question; third, that no oath testing this eligibility could or should be prescribed in advance of the meeting of the legislature. These views being in accord- ance with my own, I acted on them, and was present at the organization of the two houses of the Georgia legislature; to the members declared in my order as having the highest number of votes, there being administered only the oath prescribed by the State constitution. After these houses were organized, the provisional governor informed me officially of their organization, but that, as far as he could learn, no steps had been taken to test the question of the eligibility of members under the fourteenth article. I re- plied to the governor that until the State was admitted to representation the legislature and all the officers were only provisional, and subject to the paramount authority of the district commander, and that in the exercise of this power I should consider all acts of the legislature null and void until satisfactory evidence was presented to me that each house had purged itself of ineligible members under the fourteenth article, provided there ‘were any such in either house; and I desired the provisional governor to communicate these views to each house. On the receipt of this letter, each house at once ordered an investigating committee and inquired into the qualification of each member, and duly reported this fact through the provisional governor, stating at the same time that neither house had found any member ineligible. : “The provisional governor, in transmitting these communications, expressed the opinion, founded on evidence presented to him, that several members in both houses were ineligible, and called on me to exercise my power and require said members to vacate their seats. On reflecting upon this subject, I could not see how I was to take the individual judgment of the provisional governor in the face of a solemn actof a par- liamentary body, especially as, from the testimony presented, I did not, in several cases, agree with the judgment of the provisional governor. The question was simply whether, in the construction of a law, and in considering the facts of individual cases, I should make myself the judge, or take the opinion of the provisional governor, in the face of the official information that a parliamentary body had gravely and formally, through a committee, examined, reported, and acted on these cases. My judgment was decidedly that I had fulfilled my duty in compelling the houses to take the action they had, and that having thus acted, I had neither the authority, nor was itpolitic or expedient, to overrule their action, and set up my individual judgment in opposition. By an inspection of the telegram sent July 18, and the reply of the General-in-chief, July 23, it will be seen that my views and actions were approved. I allude thus in extenso to this subject, because his excellency the governor of Georgia, in a public speech recently delivered at 350 SENATE ELECTION CASES. Albion, N. Y., ispleased to attribute the failure of Georgia to be properly reconstructed to my action in failing to purge the legislature of his political opponents, he having advised pe when he urged such action, that his friends had been relieved of their disability by ongress. ‘‘The States being admitted to representation, the civil power vested in the military commander by the reconstruction acts ceased, and civil authority resumed its sway.’’ The foregoing extract, together with copies of official correspondence between Major- General Meade and General Grant, hereto attached, establish the fact that the legislature of Georgia fully complied with the requisitions of the act of June 25, 1868; and the fact of her ratification of the fourteenth amendment was duly proclaimed by the President, as also appears by a copy of the proclamation hereto attached. Congress having decided that Georgia was entitled to representation through the State government organized under the reconstruction acts, on complying with the conditions therein named, it is not competent for either house, now that the conditions have been complied with, to refuse admission to members on the ground that the State is not en- titled to representation. For either House to doso would be for such House to set aside a solemn act of Congress, passed by both Houses, and to repudiate the principle on which it differed with the President and went before the people in the popular elections. The House of Representatives, conforming to the law of Congress, has admitted to seats the Representatives from Georgia against whom no personal objection was made, without any further inquiry than whether Georgia had complied with the conditions of the act of June 25, 1868. No attempt was made in that body to revise the decision of Congress. The assumption that the constitutional amendment was not adopted in good faith is not sustained by a particle of evidence before the committee, and is contradicted by the official report of Governor Bullock to General Meade, by the orders of General Meade, and those emanating from the General-in-chief, by the proclamation of the President, made in pursuance of law, by the action of the House of Representatives in passing upon the admission of members to that body, and by the acquiescence of all the departments of Governmentfrom July untilnow. If one branch of Congress is at liberty todeny aState representation on the ground that it did not act in good faith in agreeing to the condi- tions prescribed by Congress, what is to prevent either House of any other Congress, acting on a like assumption, from denying admission to members from any other of the recon- structed States? It is well known that a large political party in the country believe the reconstruction acts unconstitutional. Should that party hereafter obtain ascendency in either House of Congress, is it to be at liberty to overturn the State governments which have been established in pursuance of law and to quote as a precedent the action of the Senate in this case? When are we to have peace and civil governments established in the late rebel States under such a policy? The question has been asked if one person disqualified by the fourteenth amendment could be permitted to act as a member of the Georgia legislature, why not all; and if all, would it be pretended that it was a legisla- ture organized in accordance with the reconstruction acts? Probably not; and the same question, with the same force, may be asked in reference to Congress or any other legis- lative body in the land. Ifa disqualified person or several such were permitted to act as members of Congress or a State legislature, does anybody pretend that the action of the body would he vitiated thereby, and yet who would not admit that if a body of men were to assemble and undertake to act as the Congress or the legislature of a State, all of whom were disqualified from acting as such, that their action would have any validity? No such case is to be presumed, and no legislative body is justified or safe in basing its action on supposititious cases which never have and are not likely ever to occur. Nosuch state of facts is presented in the case of Georgia. Not one in ten of the members of the senate, after deducting those from whom the disabilities had been removed by Congress, and not one in fifty of the members of the house were found disqualified by even the mi- nority of the committee who investigated this subject, and each house decided all its members to be qualified. The constitution of Georgia, which was accepted by Congress, like that in all the other States, and like the Constitution of the United States, in regard to Congress, leaves to each house the exclusive right to judge for itself of the election and returns of its own members, and that judgment, when pronounced, is conclusive every- where. There was not a shadow of anything deserving the name of evidence before the committee to show that either house of the legislature of Georgia acted corruptly or fraudulently in passing upon the right of members to their seats under the fourteenth amendment. The Senate has no right, im the opinion of the undersigned, to revise the action of Con- gress, disregard its laws, and refuse Hill his seat, because in its opinion Georgia is not entitled to representation, when Congress has decided otherwise, and the Executive and the General-in-chief have acted on that decision. It being admitted that Hill is entitled to his seat if Georgia is entitled to be represented in the Senate, and it being shown that Georgia has been declared by law to be entitled to representation on certain conditions, WHITELEY AND FARROW VS. HILL AND MILLER. 351 which are shown to have been complied with, the conclusion would seem to be irresist- ible that Hill was entitled to take his seat. That it is competent for the Senate, in passing upon the elections, returns, and qualifications of its members, to inquire whether the body by which a Senator was clected was the legislature of the State is not disputed; but it is not pretended that Georgia had any other legislative assembly than the one which elected Mr. Hill claiming to be a legislature. The legislative body which elected him was the one which was convened by the governor in pursuance of an act of Congress; the one which ratified the fourteenth amendment to the Constitution as proclaimed both by the President and Secretary of State, in accordance with the requirements of law; and the one, and the only one, which has been elected and assembled in said State under the constitution formed in pursuance of the reconstruction acts and approved by Congress. The legislature of Georgia, under its constitution, consists of forty-four senators and one hundred and seventy-five representatives, and the complaint is, not that the persons properly chosen and qualified would not and did not constitute the legislature, but that “there were a number of persons holding seats in both branches of the legislature that were and are not eligible under the fourteenth constitutional amendment.”’ Each house appointed committees, who investigated the question of the eligibility of the members of their respective houses under that amendment; and, on their report, each house decided that all its sitting memfers were entitled to seats. Whether these decisions were correct or not is not material to Hill’s right to a seat, as it is not pretended, even by the minority of the committees appointed to investigate, that more than four senators out of forty-four, omitting those whose disabilities had been removed by act of Congress, and three representatives, out of one hundred and seventy-five, were disqualified by the fourteenth amendment. No evidence was taken by the Judiciary Committee to ascertain how many or whether any of the members of either house were ineligible. The statements of letter-writers and memorialists cannot surely be treated as evidence upon which to overthrow a State government. The only reliable information the com- mittee had on that subject is contained in the official report of Major-General Meade, and the journal of the legislature, as published in a newspaper. From these it appears that only four senators and three representatives were complained against by any one in the legislature as disqualified by the fourteenth amendment. If it were admitted that the decision of each house was wrong in regard to the eligi- bility of the members complained against it would not vitiate the proceedings of the legislature. Scarcely a legislature assemblesin any of the States in which there are not controversies in regard to seats, and it often happens that these are not settled till near the close of the session, when, perhaps, sitting members are turned out; and yet, who ever supposed that the proceedings of a legislative body were vitiated because they were participated in by persons whom it afterwards turned out were not entitled to seats? But whether each house of the legislature of Georgia decided rightly or not as to the eligibility of its members is not a question for the Senate to review. The Senate has no jurisdiction to inquire whether the members of a State legislatureare properly elected. and qualified. ; Tf it could make this inquiry in regard to the members of the legislature of Georgia, which had been declared entitled to representation, it could make it in regard to the legislature of Illinois, or any other State. No one, I apprehend, would contend for such a power in Congress. It does not follow that Congress may not provide the means for executing the fourteenth amendment. There can be no question of its power to pass a law making it a penal offense for any person to take or hold office contrary to the pro- visions of that amendment. Another objection made to the organization of the Georgia legislature is that its members did not take the test oath required by the ninth section of the act of July 19, 1867, to be administered to all persons appointed to office under any of the so-called State governments in the rebel States; but obviously that require- ment did not apply to members of a legislature elected under a constitution formed in pursuance of the reconstruction acts, and so General Grant, Major-General Meade, and the Judiciary Committee of the House decided. Another objection urged against Mr. Hill’s right to a seat is the fact that the legislature of Georgia unjustly denied the right of certain colored members to seats. However unjust this denial may have been, it did not take place till more than a month after Hill’s election. He was elected J uly 28, and the colored members participated in all legislation till September 3. : : It is difficult to perceive how an act subsequent to the election could affect its valid- ity. If the legislature was properly organized when it elected Hill, the fact that it sub- sequently became disorganized ought not to affect his election. — : ae There is great diversity of opinion as to the condition of affairs in Georgia at this time. The committee have taken no testimony on that subject, but it is understood that a com- mittee of the House of Representatives have taken a large mass of evidence as to the nresent state of affairs in Georgia, which will soon be printed. 352 SENATE £LECTIUN CASES. Time and the salutary influence of the incoming administration, it is believed, will soon correct whatever of lawlessness and disorder now remainin theState. If, however, they should not, some way will doubtless be found by which Congress and the Executive. acting in harmony, and not the Senate alone, will be able to preserve the peace and pro- tect all the citizens of Georgia in the enjoyment of all their rights. These considera- tions, however, should not affect the right of Mr. Hill to his seat in the Senate, and are only alluded to because of the importance attached to the present condition of affairs in Georgia by the majority of the committee. The undersigned, believing Mr. Hill to have been duly elected Senator by the legislature of a State entitled to representation, and that he possesses all the qualifications required by the Constitution, recommends striking out of the resolution reported by the committee all after the word ‘‘ resolved,”’ and the insertion of the following: ‘‘That Joshua Hill is entitled to take his seat in the Senate on taking the oath pre- scribed by the Constitution and laws.’’ LYMAN TRUMBULL. CREDENTIALS OF MR. MILLER. Monpay, Junuary 11, 1869. Mr. Trumbull presented the credentials of H. V. M. Miller, elected a Senator by the legislature of the State of Georgia, for the unexpired portion of the term commencing on the 4th day of March, 1865; which were read. Ordered, That they be referred to the Committee on the Judiciary. THURSDAY, February 4, 1869. The President pro tempore presented resolutions adopted by the National Union Re- publican Association of Georgia, approving the platform and action of the Republican party and the policy of Governor Bullock; condemning the expulsion of colored members from the legislature of Georgia, and praying that Joshua Hill and H. V. M. Miller may not be admitted to the Senate as Senators from Georgia; which were referred to the Com- mittee on the Judiciary. WEDNESDAY, February 17, 1869. Mr. Stewart, from the Committee on the Judiciary, to whom were referred the cre- dentials of Hon. H. V. M. Miller, elected a Senator by the legislature.of Georgia, re- ported against admitting him to a seat in the Senate. [First session of the Forty-first Congress. ] CREDENTIALS OF MESSRS. HILL AND MILLER. TUESDAY, March 9, 1869. On motion by Mr. Trumbull, Ordered, That the credentials of Joshua Hill and H. V. M. Miller, Senators-elect from the State of Georgia, on the files of the Senate, with the accompanying papers, be re- ferred to the Committee on the Judiciary. WEDNESDAY, May 17, 1869. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the crée- dentials of Joshua Hill and H. V. M. Miller, elected Senators by the legislature of the State of Georgia, reported them back to the Senate and moved that they lie on the table; which motion was agreed to. (Mr. Trumbull stated (Congressional Globe, Ist sess. 41st Cong., page 102) that the committee were of opinion that the credentials should lie upon the table until action had been taken upon the bill in regard to the State of Georgia; that he was opposed to that aca and believed it the duty of the Senate to act upon the credentials at once. CREDENTIALS OF MESSES. HILL AND MILLER, AND WHITELEY AND FARROW [Second session of the Forty-first Congress. ] Monpay, February 14, 1870. On motion by Mr. Trumbull, Ordered, That the credentials of H. V. M. Miller and Joshua Hill, as Senators from the State of Georgia, on the files of the Senate, be referred to the Committee on the Ju- diciary. WHITELEY ANG FARROW VS. HILL AND MILLER. 353 Fripay, July 15, 1870. Mr. Stewart presented the credentials of Richard H. Whiteley, elected a Senator by the legislature of the State of Georgia for the unexpired portion of the term ending March 3, 1871; which were read. Ordered, That they lie on the table. Mr. Stewart presented the credentials of Henry P. Farrow, elected a Senator by the legislature of the State of Georgia for the unexpired portion of the term ending March 3, 1873; which were read. Ordered, That they lie on the table. [Third session of the Forty-first Congress. ] : TUESDAY, December 13, 1870. On motion by Mr. Stewart, Ordered, That the credentials of Richard H. Whiteley and Henry P. Farrow, Senators- elect from the State of Georgia, presented at the last session, be referred to the Commit- tee on the Judiciary. Monpay, January 23, 1871. Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre- dentials of Joshua Hill, H. V. M. Miller, Henry P. Farrow, and Richard H. Whiteley, claiining to be Senators-elect from the State of Georgia, submitted a report (No. 308), accompanied by the following resolution: ‘Resolved, That Joshua Hill has been duly elected Senator of the United States by the legislature of the State of Georgia, and is entitled to take his seat on taking the oaths required by the Constitution and laws.’’ Mr. Stewart asked, and obtained, leave of the Senate to submit the views of a minor- ity of the Committee on the Judiciary in reference to the election of Senators from the State of Georgia. Ordered, That they be printed to accompany the report of the Committee of the Ju- diciary thereon. REPORT OF COMMITTEE—MAJORITY AND MINORITY.* [The committee consisted of Messrs. Trumbull (chairman), Stewart, Edmunds, Conk- ling, Rice, Carpenter, and Thurman. ] IN THE SENATE OF THE UNITED STATES. JANUARY 23, 1871.—Ordered to be printed. Mr. Trumbull, from the Committee on the Judiciary, submitted the following report: The Committee on the Judiciary, to whom were referred the credentials of Joshua Hill, H. V. M. Miller, Henry P. Farrow, and Richard H. Whiteley, claiming to have been elected Senators from the State of Georgia, submit the following report: The credentials of all four of the claimants are sufficiently formal to entitle them to seats if they were otherwise entitled, but it is manifest that only two can be admitted under any circumstances. The Constitution declares that ‘‘the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof.’’ The history of the reconstruction of the State of Georgia is succinctly set forth ina report made to the Senate by the Judiciary Committee on the 2d of March last, from which the following are extracts: “The acts of Congress of March 2, 1867, and March 23, 1867, called the reconstruc- tion acts, made all existing government in that State provisional, and subject to the paramount authority of Congress. That paramount authority, by the same act, confided to the military arm of the executive department certain specified powers and duties for the preservation of peace and order in the State, until the people of this State should frame a new government and elect public officers under it, and be admitted again ito fall relation with the Union. ‘* Under these acts, and particularly that of June 25, 1868, 4 form of government was adopted by the people of Georgia, and they elected under it a legislature and governor. And in July, 1868, after sundry difficulties touching the eligibility of certain members of the legislature had been disposed of by the legislature, with the approval of the general in command of the district, the new government was by him declared duly * Taken from Senate Reports, 3d sess. 41st Cong., No. 308. The accompanying documents mak- ing pages 8-16. 21-36, and 43-65, are omitted. S. Doe. 11 23 354 SENATE ELECTION CASES. organized, and the governor was inaugurated, and the conduct of affairs was thereupon by the military commander turned over to the civil officers, and the military authority veased. ‘The culmination of this action is found in the following orders of General Meade, commanding the district: “““FGeneral Orders No. 101.] ‘“CHEADQUARTERS THIRD MILITARY DISTRICT, ‘(DEPARTMENT OF GEORGIA, FLORIDA, AND ALABAMA, “ ae The question we are considering is not a judicial question and no judicial court can determine it. The question is political in its character, and, so far as the United States 516 SENATE ELECTION CASES. have to deal with it, must be determined by the political department of this Govern- ment. We must therefore investigate the facts, and no decision of any branch of a pre- tended State government can estop us in this inquiry. The people of the State are about equally divided in sentiment in regard to these two pretended governments. The people of New Orleans, which is the seat of government, support the McEnery government, two to one; and it is believed that if Federal support were withdrawn from the Kellogg government it would be immediately supplanted by the McEnery government. The peopleof the State, as a body, neither support nor sub- mit to either government. Neither government can collect taxes, for the people have no assurance that payment to one will prevent collection by the other government. Business is interrupted, and public confidence destroyed; and should Congress adjourn without making provision for the case, one of two things must result: Either collision and bloodshed between the adherents of the two governments, or the President must continue the support of Federal authority to the Kellogg government. The alternative of civil war or the maintenance by military power of a State government not elected is exceedingly embarrassing; and in the opinion of your committee the best solution of this difficulty is for Congress to order a re-election, and provide for holding it under author- ity of the United States; to the end that a government may be elected by the people, to which they will submit, or which, in case of disturbance, the United States can honestly maintain. : Your committee have A i a bill which they believe will insure an honest elec- tion, and result in the establishment of a republican form of government in that State, and your committee recommend its passage. We are aware that ordering an election in a State upon the ground that an election which has been held is void for fraud is an exercise of power which ought never to be undertaken by Congress without stern necessity. It will be said that if such power re- sides in Congress it may be exercised improperly. Thisis true. But the same may be said of every power conferred upon a government. The people, in adopting the Consti- tution of the United States, saw fit to conter upon the General Government authority to guarantee to each of the States a government republican in form. This undoubtedly confers the power to determine whether a particular State has a government, and, if so, whether it be republican in form. There is no doubt Congress might to-morrow, asa question of mere power, declare that the government of Massachusetts is not republican in form, and set up in its place a government which it might determine to beso. This would, of course, be a great abuse of this power. When a judge has jurisdiction to de- cide a cause, he has as much power to decide it wrong as right; and an erroneous judg- ment is as valid as any other, until vacated or reversed by competent authority. In exercising this power Congress should act with great caution and prudence. The clamor usually raised by those who are defeated in an election should not, and would not, in- duce Congress to interfere. Ordinarily, even a government elected by fraud, but going quietly into the exercise of power, and submitted to by the people, may better be left to fill its brief term than be interfered with by Congress. But when the frauds commit- ted are so glaring and widespread as to create public discontent in the State, and the organization of two rival governments threatening civil war, and it is manifest that neither government has been fairly elected, this power of the National Government must be regarded as wise and salutary. It cannot be maintained thatits prudent exercise vio- lates the rights of the States, because the States, for their own protection and security, have conferred the power upon the National Government; and this Government cannot refuse or neglect to exercise it, in a proper case, without disregarding the obligation which the Constitution has devolved upon it. We think the melancholy condition of the peo- ple of Louisiana, who are substantially in a state of anarchy, makes it the duty of Con- gress to act in the premises. Therefore your committee recommend the adoption of the following resolutions: 1. Resolved, That there is no State government at present existing in the State of Lou- isiana. 2. Resotved, That neither John Ray nor W. L. McMillen is entitled to a seat in the Senate, neither having been elected by the legislature of the State of Louisiana. And your committee recommend the passage of the bill herewith reported. MATT. H. CARPENTER. JOHN A. LOGAN. J. L. ALCORN. H. B. ANTHONY. VIEWS OF MR. TRUMBULL. The undersigned, unable to agree to the recommendations and some of the conclusions of the majority of the committee, asks leave to present the following views: He agrees with the majority that portions of the Louisiana election law are in conflict THE LOUISIANA CASES, 1873-80. 517 with the constitution of the State; that Wharton was de facto secretary of state, and, as such, ex officio a member of the returning board; that under the statute the Warmotb- Wharton board was the legal and rightful board to canvass the official returns; that it was illegally restrained by United . District Judge Durell from making such canvass; that by the election lawapproved November 20, 1872, all previous returning boards were abolished; that the De Feriet-Wiltz board was authorized under that act to complete the canvass which had been begun under the Wharton board; that said De Feriet board did canvass the official returns, and the result was duly proclaimed by the governor Decem- ber 4; that Herron ceased to be the secretary of state when Wharton was appointed and took possession of the office; that the Lynch returning board never had authority to ex- amine the official returns, and never had any to examine; that neither Kellogg nor any of.the persons returned as elected to State offices by the Lynch board were elected accord- ing to the official returns; that neither the Pinchback nor the Kellogg State government could have been set up, nor the persons returned by the Lynch board as elected to the legislature have assembled and organized as a legislature, but for the unauthorized and usurped authority exercised by Judge Durell, supported by United States troops. On the contrary, that but for such illegal and unwarranted interference, the McEnery State government and legislature would have been peacefully inaugurated, and that there has been no decision of the supreme court of Louisiana declaring the Kellogg State government and legislature legal in any case over which said court had jurisdiction to make such decision. The undersigned cannot, however, agree, because a United States district judge, supported by United States troops, has, by usurpation, caused a governor and a legislature not elected by the people to be installed in power in a State, that such usurpation authorizes Congress to intervene and order a new election in the State when there is in existence in such State a governor, other State officers, and members of the legislature duly elected by the people. All that is necessary in such a case is for the Senate to recognize the legitimate legislature by admitting to his seat in the Senate the person they have chosen to represent the State, and to forbid the use of United States troops to carry into effect the void orders of a usurping judge. The whole trouble in Louisiana has grown out of the illegal interference of the United States authorities, civil and military, with the internal affairs of the State. According to the official returns, the fusion State ticket, headed by McEnery for gov- ernor, received an average majority of about 10,000 votes, and a large majority of the persons elected to the legislature were of the same party; and but for the illegal inter- ference of the United States authorities, as is stated in the report of the majority, the McEnery government would have been peacefully inaugurated. How skillfully the plan was laid to overthrow the legitimate State government, set aside an election, and inaugurate the Pinchback and Kellogg administrations and legis- latures, and how well Judge Durell was supported in all these revolutionary and illegal proceedings by other United States officials, will appear by reference to a few facts dis- closed in the evidence. The legislature had been called by Governor Warmoth to assem- ble December 9; December 3 the following dispatch was sent from Washington: ; DEPARTMENT OF JUSTICE, December 3, 1872. S. B. PAcKARD, Esq., United States Marshal, New Orleans, Louisiana: You are to enforce the decrees and mandates of the United States courts, no matter by whom resisted, and General Emory will furnish you with all necessary troops for that urpose. a GEO. H. WILLIAMS, Attorney-General. This dispatch, so far as the evidence shows, was not responsive to any call for troops; there had been no resistance to any process of the United States courts, nor does it appear that any was threatened. R. H. Jackson, a captain in the First Artillery, United States Army, testified that he went to New Orleans on the night of December 5 with two bat- teries of his regiment and eighty-six men. The same night, December 5, between 9 and 11 o’clock, Judge Durell, at his private lodgings, issued his order, which, for want of jurisdiction, was void, and entitled to no respect from anybody, directing the United States marshal forthwith to take possession of the State-house, to hold the same until the further order of the court, and prevent all unlawful assemblage of personstherein, having reference to the persons returned as elected to the legislature according to the official returns. Captain Jackson testifies that he took possession of the State-house at about 2 o’clock on the morning of the 6th, with in- structions to take and hold it under the direction of the United States marshal, and to act in obedience to his orders. He further testified that he was not stationed in the State-house to prevent riots, but to hold the building, and that if a riot had occurred in 518 SENATE ELECTION CASES. front of the building he would not have interfered. He posted twosoldiere at the entrance door, who guarded it with crossed bayonets, and suffered no one to enter the building except by permission of the United States marshal, one of whose deputies was at alt times present. These troops continued to occupy the State-house for more than six weeks, until January 21, and it is manifest, from the whole testimony, that they were not there to preserve the peace, but to carry out the illegal orders of Judge Durell, and pre- vent the legally elected members of the legislature from assembling and organizing. Can it be that the Attorney-General sent his telegram, and that Captain Jackson was ordered to New Orleans with his batteries, in anticipation of the unauthorized orders of United States District Judge Durell to seize the State-house and prevent the legislature from organizing except with such persons as he should declare legally elected; or that the Attorney-General supposed it the duty of the Executive to support with the military power the decrees and mandates of United States courts issued without jurisdiction, and consequently void? In no conceivable case could a United States court or judge have jurisdiction to issue orders such as were promulgated by Judge Durell. As well might a United States district judge make an order to seize the Federal Capitol and prévent all members of Congress from entering the building except such as he should declare elected. Would the President direct General Emory to furnish the troops to execute such an order? He has no more right to aid the execution of an order of court, void for want of jurisdiction, than the judge has to make it. It is his duty to discriminate between the orders of courts which may be lawful and those which must necessarily be void for want of jurisdiction. Had the troops been withdrawn when the character of the orders they were enforcing was made known, it might be inferred that the Attorney-General did not intend they should be used for such a purpose; but they held possession of the State- house for more than six weeks. The next telegram was from Casey, United States collector of the port of New Orleans, ag follows: NEw ORLEANS, December 6, 1872. President GRANT: Marshal Packard took possession of State-house this morning, at an early hour, with military posse, in obedience to a mandate of circuit court, to prevent illegal assemblage of persons under guise of authority of Warmoth’s returning board, in violation of in- junction of circuit court. Decree of court just rendered declares Warmoth’s returning board illegal, and orders the returns of the election to be forthwith placed before the legal board. This board will probably soon declare the result of the election of officers of State and legislature, which will meet in State-house with protection of court. The decree was sweeping in its provisions, and if enforced will save the Republican majority and give Louisiana Republican legislature and State government, and check Warmoth in his usurpations. Warmoth’s Democratic supporters are becoming disgusted with him, and charging that his usurpations are ruining their cause. JAS. F. CASEY. What a spectacle is this, to see a State legislature set up and made Republican by the usurped authority of a United States district judge. The next dispatches are as follows: NEw ORLEANS, December 6, 1872. Attormey-General WILLIAMS, Washington, D. C.: Returning board provided by election of ’70, under which election was held, and which United States court sustains, promulgated in official journal this morning result of election of legislature: House stands 77 Republicans, 32 Democratic; senate 28 Repub- licans, 8 Democratic. Board counted ballots attached to affidavits of colored persons wrongfully prevented from voting, filed with chief supervisor. 8. B. PACKARD, United States Marshal. (Telegram.] NEw ORLEANS, December 9, 1872. Hon. Gro. H. WILLIAMS, Attorney-General, Washington, D. C.: Returning board has officially promulgated in official journal this morning the result of the election for State officers. Kellogg’s majority, 18,861. 8. B. PACKARD, United States Marshal. THE LOUISIANA CASES, 1873-80. 519 The returning board here referred to is the illegal Lynch board, which never had an official return before it. Lynch, in testifying before the committee, said: ‘We took all the evidence we had before us, and our knowledge of the parishes and their political complexion, and we then decided. “By Mr. CARPENTER: **Q. You estimated it, then, upon the basis of what you thought the vote ought to have been? or res, sir. That was just the fact, and I think on the whole we were pretty correct. Much of what Lynch called evidence was shown to be newspaper reports, letters, and forged affidavits. Then followed in quick succession the following dispatches: [Telegram.] NEw ORLEANS, December 9, 1872. Hon. Gro. H. WILLIAMS, Attorney-General : Governor Warmoth has been impeached by vote of 58 to 6. Warmoth’s legislature returned by his board has made no pretense of a session. 8. B. PACKARD, United States Marshal. [Telegram.] New ORLEANS, LA., December 9, 1872. Hon. Gro. H. WILLIAMS, Attorney-General : Senate, by vote of 17 to 5, have resolved into high court of impeachment. Senator Harris elected president of the senate, Lieutenant-Governor Pinchback being now gov- ernor. S. B. PACKARD, United States Marshal. [Telegram.] NEw ORLEANS, December 9, 1872. Hon. Gro. H. WILLIAMS, Altorney-General, Washington, D. C.: Lieutenant-Governor Pinchback qualified and took possession of the governor’s office to-night. Senate organized as high court of impeachment, Chief-Justice Ludeling pre- siding, and adjourned to meet Monday next. It is believed that all the Democrats, members of general assembly, will qualify and take seats to-morrow. ‘ 8S. B. PACKARD, United States Marshal. (Telegram.] NEw ORLEANS, December 9, 1872. We have the honor to transmit to your excellency the following concurrent resolution of both houses of the general assembly and to request an early reply: ‘Whereas the general assembly is now convened, in compliance with the call of the governor, and certain evil-disposed persons are reported to be forming combinations to disturb the public peace, defy the lawful authority, and the State is threatened with violence: Therefore, : ‘* Be it resolved by the senate and house of representatives of the State of Louisiana in general assembly convened, That the President of the United States be requested to afford the protection guaranteed each State by the Constitution of the United States when threat- ened with domestic violence, and that the presiding officers of the general assembly transmit this resolution immediately by telegraph or otherwise to the President of the United States.’’ Adopted in general assembly convened this 9th day of December, A. D. 1872. P. B. S. PINCHBACK, Lieutenant-Governor, and President of the Senate. CHAS. W. LOWELL, Speaker of the House of Representatives. 520 SENATE ELECTION CASES. [Telegram.] NEw ORLEANS, December 3, 1872. President GRANT: Having taken the oath of office and being in the possession of the gubernatorial office, it devolves upon me to urge the necessity of a favorable consideration of the request of the general assembly as conveyed in the concurrent resolution of this day telegraphed to you requesting the protection of the United States Government. Be pleased to send the necessary orders to General Emory. This seems to me a necessary measure of pre- caution, although all is quiet here. P. B. S. PINCHBACK, Lieutenant-Governor, Acting Governor of Louisiana. This pretended legislature, made up of persons returned as members by the Lynch board, perfected its organization, impeached the governor, suspended him from office, and installed Pinchback in his place. All this was done on the same day and within a few hours, and that, too, in disregard of a statute of the State, which, as stated to the committee, provides that the officer sought to be impeached shall be summoned before a committee of the house of representatives; shall have permission to cross-examine witnesses that are brought against him; shall have citation of the witnesses he may desire to summon; that the house of representatives shall act only in case the committee report in favor of the impeachment; that if the committee report adversely to it, that is itself an acquittal, and the officer cannot ever be arraigned on the charges then reported on. No such proceedings were had in this case. ; It may not be amiss to remark in this connection that each of the members of the Lynch board was immediately rewarded by Pinchback with a lucrative office, except Lynch, and his son was given an appointment. While these revolutionary proceedings were being enacted, Judge Durell was busy fulminating new injunctions and restraining orders, and calling Governor Warmoth and his associates of the legal returning board before him to answer for alleged contempts of his void orders. The Pinchback administration and legislature thus set up was so entirely without the moral support and respect of the people that it was in great danger of falling to pieces unless it could get the further support of the Federal administration backed by a larger military force. So well was this understood that Pinchback and United States officials at New Orleans kept the telegraph busy calling on the President for help and additional forces. The two batteries and eighty-six men under Captain Jackson were not deemed sufficient to protect Pinchback and his legislature from the just indignation of an out- raged people. Hence the cries for help which were continually being sent to Washing- ton. The following are specimens of some of these cries: [Telegram.] NEw ORLEANS, LA., December 11, 1872. Hon. Gro. H. WILLIAMS, Attorney-General : I have the honor to acknowledge the receipt of your dispatch. May I suggest that the commanding general be authorized to furnish troops upon my requisition upon him for the protection of the legislature and the gubernatorial office? The moral effect would be great, and in my judgment tend greatly to allay any trouble likely to grow out of the recent inflammatory proclamation of Warmoth. I beg you to believe that I will act in all things with discretion. P. B. 8S. PINCHBACK, Lieutenant-Governor, Acting Governor. [(Telegram.] New ORLEANS, December 11, 1872. President GRANT: Parties interested in the success of the Democratic party, particularly the New Or- leans Times, are making desperate efforts to array the people against us. Old citizens are dragooned into an opposition they do not feel, and pressure is hourly growing; our members are poor and adversaries are rich, and offers are made that are difficult for them to withstand. There is danger that they will break our quorum. The delay in placing troops at disposal of Governor Pinchhback, in accordance with joint resolution of THE LOUISIANA CASES, 1873-80. - 521 Monday, is disheartening our friends and cheering our enemies. If requisition of legis- lature is complied with all difficulty will be dissipated, the party saved, and everything goon smoothly. If this is done the tide will be turned at once in our favor. The real underlying sentiment is with us if it can but be encouraged, Governor Pinchback acting with great discretion, as is the legislature, and they will so continue. JAS. F. CASEY, Collector. (Telegram.] New ORLEANS, 11, 1872. Hon. GEO. WILLIAMS: If President in some way indicate recognition, Governor Pinchback and legislature would settle everything. Our friends here acting discreetly. W. P. KELLOGG. [Telegram.] NEW ORLEANS, 11, 1872. President GRANT: Democratic members of the legislature taking their seats. Most, if not all, will so in next few days. Important that you immediately recognize Governor Pinchback’s legis- lature in some manner, either by instructing General Emory to comply with any requi- sition by Governor Pinchback, under joint resolution of legislature of Monday, or other- wise. This would quiet matters much. I earnestly urge this and ask a reply. JAMES F. CASEY. {Telegram.] NEW ORLEANS, December 12, 1872. President GRANT: 1 The condition of affairs is this: The United States circuit court has decided which is the legal board of canvassers. Upon the basis of that decision a legislature has been organized in strict conformity with the laws of the State, Warmoth impeached, and thus Pinchback, as provided by the constitution, became acting governor. The chief-justice of the supreme court organized the senate into a court of impeachment, and Associate Justice Tallifeiro administered oath to Governor Pinchback. The legislature, fully or- ganized, has proceeded in regular routine of business since Monday. Notwithstanding this, Warmoth has organized a pretended legislature, and it is proceeding with pretended legislation. A conflict between these two organizations may at any time occur. A con- flict may occur at any hour, and in my opinion there is no safety for the legal government, without the Federal troops are given in compliance with the requisition of the legislature. The supreme court is known to be in sympathy with the Republican State government. If a decided recognition of Governor Pinchback and the legal legislature were made, in my judgment it would settle the whole matter. General Longstreet has been appointed by Governor Pinchback as adjutant-general of State militia. JAMES F. CASEY. In reply to these appeals for help the Attorney-General answered as follows: (Telegram.] DEPARTMENT OF JUSTICE, December 12, 1872. Acting Governor PINCHBACE, New Orleans, Louisiana: Let it be understood that you are recognized by the President as the lawful executive of Louisiana, and that the body assembled at Mechanics’ Institute is the lawful legisla- ture of the State, and it is suggested that you make proclamation to that effect, and also that all necessary assistance will be given to you and the legislature herein recognized to protect the State from disorder and violence. GEO. H. WILLIAMS. Attorney-General. 522 SENATE ELECTION CASES. The following telegrams were sent to the President by the friends of the State govern ment which was being subverted: [Telegram.] NEw ORLEANS, December 11, 1872. The PRESIDENT OF THE UNITED STATES: Under an order from the judge of the United States district court, investing James Longstreet, Jacob Hawkins, and others with the powers and duties of returning officers under the State election law, and charging them with the duty of completing the legal teturns and declaring the result in accordance therewith, those persons have promulgated results based upon no returns whatever, and no evidence except ex parte statements. They have constructed a pretended general assembly, composed mainly of candidates defeated at the election, and those candidates, protected by United States military forces, hive taken possession of the State-house and have organized a pretended legislature, which to-day has passed pretended articles of impeachment against the governor; in pursuance of which, the person claiming to be a lieutenant-governor, but whose term had expired, proclaimed himself acting governor, broke into the executive office under the protection of United States soldiers, and took possession of the archives. In the mean time the general assembly has met at the city hall, and organized for business with sixty members in the house and twenty-one in the senate, being more than a quorum of both bodies. I ask and believe that no violent action be taken, and no force used by the Gov- ernment, at least until the supreme court shall have passed final judgment on the case. A full statement of the facts will be laid before you and the Congress in a few days. H.C. WARMOTH, Governor of Louisiana. [Telegram.] NEW ORLEANS, 12th, 1872. His Excellency U. 8. GRANT, President United States: Claiming to be governor-elect of this State, I beg you, in the name of all justice, to suspend recognition of either of the dual governments now in operation here until there can be laid before you all facts, and both sides, touching legitimacy of either government. The people denying the legitimacy of Pinchback government and its legislature simply ask to be heard, through committee of many of our best citizens on eve of departure for Washington, before you recognize the one or the other of said governments. I do not believe we will be condemned before we are fully heard. JNO. McENERY. [Telegram.] NEw ORLEANS, December 12, 1872. His Excellency U. 8. GRANT, President of the United States : Sir: As chairman of a committee of citizens appointed under authority of a mass-meet- ing recently held in this city, I am instructed to inform you that said committee is about leaving here for Washington to lay before you and the Congress of the United States the facts of the political difficulties at present existing in this State, and further earnestly to request you to delay executive action in the premises until after the arrival and hearing of said committee, which is composed of business and professional men without regard to past political affiliations. THOMAS A. ADAMS, Chairman. To these respectful appeals on behalf of the legitimate governor and people of Louisi- ana, asking to be heard before a usurping executive and legislature should be forced upon them, the President, through the Attorney-General and War Department, returned the following replies: THE LOUISIANA CASES, 1873-80. 523 [Telegram.] DEPARTMENT OF JUSTICE, December 13, 1872. Hon. JOHN McEnERy, New Orleans, Louisiana: Your visit with a hundred citizens will be unavailing so far as the President is con- cerned. His decision is made and will not be changed, and the sooner it is aequiesced in the sooner good order and peace will be restored. GEO. H. WILLIAMS, Attorney-General. [Telegram.] WASHINGTON, December 14, 1872. General W. H. Emory, U. S. A., Commanding New Orleans, Lovisiana : You may use all necessary force to preservethe peace, and will recognize the authority of Governor Pinchback. By order of the President: E. D. TOWNSEND, Adjutant-General. The history of the world does not furnish a more palpable instance of usurpation than that by which Pinchback was made governor and the persons returned by the Lynch board the legislature of Louisiana; nor can a parallel be found for the unfeeling and des- potic answers sent by order of the President to the respectful appeals of the people of Louisiana. This pretended legislature, installed in power by the aid of the United States Army, in pursuance of a void order of a United States district judge, proceeded to elect John Ray to represent the State of Louisiana in the Senate of the United States; and itis said the Senate must receive him because the supreme court of Louisiana has decided the Pinchback legislature to be the rightful legislature of the State, and that the Sen- ate is bound to follow the decision of the State court as to what constitutes its legisla- ture. It is true, as a rule, that the Federal courts follow the decisions of the State courts in regard to the construction of their own constitution and laws; but it is not true that the legislative department of the Government follows the decisions of the courts upon polit- ical questions. The inquiry, what is the established government in a State, belongs to the political, and not the judicial power. The Senate, by the Constitution, is made the sole and only judge of the election of its members, who can only be chosen by the legis- latures of the respective States. Ordinarily the body recognized in a State as its legis- lature would be held by the Senate to be the body authorized to elect a Senator; but when, as in the case of Louisiana, there are two bodies in a State, each claiming to be its legislature, and each of which has chosen a person to represent the State in the Senate, in deciding between the claimants the Senate must necessarily determine which body was the rightful legislature and had authority to make the election. In view of the facts as shown to exist in Louisiana, the decisions of its courts in favor of the validity of the Pinchback legislature are entitled to no respect whatever. As has been already shown, that legislature was not elected nor brought into being by the people of the State, but owes its existence to the void proceedings of the United States court supported by military force. It was the creature of force and fraud. Its first act was to impeach and suspend the governor (Warmoth) and install Pinchback in his place. It then abolished one court and set up another in its place, and Pinchback appointed Hawkins, one of the Lynch returning board, judge of the newly established court. To give any consideration to the decisions of the court thus set up would be to aid the usurpation. Hawkins counts in spurious members of the legislature; that legislature makes a governor, who makes Hawkins judge, and Hawkins then decides the legislature to be legal. The Morgan case, in which a majority of the supreme court judges went out of the record to express opinions upon the legal status of Pinchback as acting governor, and the persons acting with him claiming to be a State senate, was commenced before this same Judge Hawkins under laws passed by this pretended legislature. As to the invalid- ity and extraordinary character of those laws, and the shameful proceedings of a majority of the members of the supreme court in Morgan’s case, I concur with what is said by the majority of the committee in their report. Could anything be more preposterous than to give validity to such proceedings? Had the supreme court of the Statestood in 524 SENATE ELECTION CASES.. the way of this pretended legislature its judges would no doubt have been summarily impeached and suspended, as Governor Warmoth was. That a wholesome fear of savh proceedings operated upon a majority of the members of that court to make them obse- quious to the demands of the pretended legislature is inferable from the fact that they make haste, in advance of any case coming before them involving the validity of the legislature, to make known their sympathy withit, as appears from the following extract from the dispatch sent by United States Collector Casey to the President December 12: ‘‘The supreme court is known to be in sympathy with the Republican ‘State govern- ment.’’ The proper tribunal to decide between the contending legislatures in Louisiana is the Senate of the United States in passing upon the admission of the Senators by them respectively chosen. The Supreme Court of the United States, in the case of Luther vs. Borden, say: ‘When Senators and Representatives of a State are admitted into the councils of the Union, the authority of the Government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its de- cision is binding on every other department of the Government, and could not be ques- tioned in a judicial tribunal.’’ The credentials of William L. McMillen are signed by Mr. McEnery as governor of the State, with the seal of the State attached. He was elected by what is known as the McEnery legislature, which, including Senators holding over, consisted of a quorum in each branch of the persons elected according to the official returns as canvassed by the DeFeriet board. The result of that canvass was duly proclaimed by Governor Warmoth, together with the list of the names of the persons elected to the senate and house of rep- resentatives, certified by Jack Wharton, who was at the time the acting secretary of state. The official returns also show that McEnery was elected governor by some 10,000 majority. These returns were before the committee, and their tabulation, showing the results above stated, were proven to be correct. It is true the members of the McEnery legislature did not meet at the time and place fixed in the governor’s proclamation, and the facts show that it was out of their power to do so, for the reason that the Mechanics’ Institute, in which they were called to assemble, was then occupied by United States troops, acting under the orders of a United States marshal in the execution of a void order of a United States court, which prohibited their assembling and organizing as a legisla- ture in said building. The fact that when thus prevented from assembling in the Me- chanics’ Institute the members got together as soon as practicable in another building in the same city and proceeded to organize cannot vitiate their proceedings any more than if the Mechanics’ Institute had burned down before the time for assembling had arrived. It is difficult to conceive upon what principle McMillen is to be refused his seat, unless the election in Louisiana in November last be declared void, and Louisiana to be without a State government, propositions to which the undersigned cannot give his assent. He believes the De Feriet board had color of authority at least to make the canvass of the returns for the legislature; that Wharton was de facto secretary of state at the time, and the proper person to make out the list of members on which the legislature is organized according to the laws of the State; but whether this were so or not is not perhaps mate- rial, because the official returns from the parishes were before us, and we know that the results at which the De Feriet board arrived were substantially correct. It is the fact that certain persons received a majority of the votes cast; that is of the substance of the election. The canvass of the returns is but machinery, and whoever receives a majority of the votes polled at an election for an office ought not to be deprived of the benefit of it unless in obedience to some positive statute. It is, however, said by a majority of the committee that the election of November 4 was so tainted with fraud as to render it wholly void, and they recommend the passage of a law for holding a new election under the authority of Congress. If it were admitted, as it is not, that Congress has authority to inquire into the fair- ness and regularity of a State election, it is denied that there was any such fraud in the late Louisiana election as would justify setting it aside. It was confessedly one of the most quiet and peaceful elections ever held in the State, and the evidence shows that it was substantially free and fair. The vote polled was 20,000 larger than ever before cast in the State, and against more than two-thirds of it no complaint of unfairness is even alleged. S. B. Packard, United States marshal for the district of Louisiana, was chairman of the Republican State executive committee, and his office in the custom-house was the head- quarters of the organization of which he was one, if not the leading spirit. He appointed from one to four special deputy marshals in every parish, and upward of six hundred in New Orleans, who were to be at the polls. Some of them served for seventy days; and he made requisitions on the Attorney-General, previous to the election, for the money to pay deputy marshals and United States supervisors. Under the law, one of the two United THE LOUISIANA CASES, 1873-80. 525 States supervisors appointed by the court is selected from each party, but in appointing his special deputies United States Marshal Packard confined himself’ exclusively to his own party, so far as the testimony shows. This United States marshal and chairman of the Republican executive committee issued instructions to the Republican United States supervisor in each parish in regard to the supervision of the vote for State and local officers, but gave no such instructions to the supervisor appointed on the fusion side. With all the sources of information which the hundreds of his subordinates scattered through the State, and his position as United States marshal and chairman of the State Republican executive committee, afforded him, Packard testified before the committee that ‘‘in a majority of the parishes, in my judgment, the election was as fair as you usually have it in any State election. ‘‘Rapides and Natchitoches, I should say, were the two worst. Then I would add Madi- sei Caddo, and Bossier, and East Baton Rouge; a portion of the returns for West Baton ouge. ae These parishes I have named were the worst cases. ‘*Q. Seven of these cases ? “A. Yes, sir. There is also the parish of Assumption, which I believe to be a Repub- lican parish, which went about '700 Republican in 1870, is returned differently. “Q. I want to know about how many there were in which there were notorious charges of fraud, such as are not usually made in elections? ‘CA. That is the number, or about the number. It would increase the number, per- haps, ten or fifteen, if I were to add those in which I believed the returns were not in accordance with the facts.”’ The State is divided into fifty-six parishes, from only about twenty of which, contain- ing less than one-third of the population of the State, frauds were even reported, and these reports were not supported by the direct testimony of a single witness before the committee, unless proof that the places of registration and of voting were established at inconvenient places in two or three parishes should be regarded as evidence of fraud. The only evidence to sustain the charges of fraud made by the Republicans were the opinions of witnesses who took an active part in the election on the Republican side, and were disappointed in the result, or ex parte ‘‘affidavits, the statements of supervisors of election, appointed under the act of Congress, letters, and verbal statements,’’ which were laid before and made to the Lynch returning board, and upon which the committee have already reported that the Lynch returning board, ‘‘ with the sort of evidence which was before them, had no power under the law of the State to investigate these charges of fraud and injury, or act upon their convictions of wrongs that had been suffered.”’ It was also in evidence before the committee that many of the affidavits before the Lynch board for the purpose of proving unfairness in the election, and upon which that board acted, were forged, and that others were triplicated. No returns were made to the governor, as required by law, from two parishes, and the returns were irregular from two others. Informalities also existed in some few other parishes or parts of parishes, but not so as to affect the general result, which for State officers, according to the official returns, showed an average majority of over 10,000 for the fusion ticket. These returns were produced before the committee, and the tabulation as contained in the evidence, page 81, proved to be correct. It has been said that the colored voters were all Republicans, that the colored popula- tion of the State outnumbers the whites, and that therefore if the election had been fair the Republican ticket must have succeeded; but the census of 1870shows that there were in the State one hundred and fifty-three more white than colored males over twenty-one years of age; and it is also in evidence that from eight to ten thousand colored persons voted the fusion ticket, while the number of whites who voted the Republican ticket is not believed to have exceeded half that number. That fraud was practiced in some of the parishes, that irregularities existed in others, may be admitted; and still, in the absence of any legitimate evidence to establish those frauds, or of any sort of complaint even against the fairness of the election in more than two-thirds of the State, the undersigned cannot admit that such a case exists as would authorize the interference of Congress with the election in any form, and his conclusion is, that by the admission of McMillen to his seat in the Senate, and the recognition thereby of the McEnery legislature as the legitimate legislature of the State, the peace of Louisiana will be speedily restored, and effect given to the fairly expressed will of her people. LYMAN TRUMBULL. VIEWS OF MR. MORTON. Article 46 of the constitution of Louisiana is in the following words: ‘‘Returns of' all elections for members of the general assembly shall be made to the secretary of state.*? This leaves it to the legislature to provide the necessary machinery for the conduct of elections and the organization of the new legislature after each election. 526 SENATE ELECTION CASES. In March, 1870, the necessary machinery was provided in the registration and election law; and the latter law requires all returns to be made to the governor, and to be py hins laid before the returning board, of which the secretary of state is ex officio a member, which shall count the votes, and that the board shall then deposit the returns with the secretary of state, as also a copy of their count or finding. Article 48 of the constitution provides, in regard to the election of governor and lieu- tenant-governor, that ‘‘the returns of every election shall be sealed up and transmitted by the proper returning officers to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then tobe holden. The members of the general assembly shall meet in the house of representatives to examine and count the votes.’’ In this regard also the law provides a somewhat circuitous route by which the returns of the election shall reach the secretary of state, yet apparently with as little objection, in a constitutional point of view, as in the case of the members of the general assembly. The returns in both cases reach the secretary of state through the governor and the re- turning board. The constitution provides that the legislature shall count the votes for governor and lieutenant-governor, but makes no provision for counting them as to other State officersor members of the legislature, and leaving all that machinery to be provided by statute. The act of 1870 provides for supervisors of registration in the parishes, and commis- sioners of election to be appointed by the supervisors, and the returns of the election in the several parishes to be sent to the governor, to be by him laid before the returning board, and by the returning board, together with the result of their finding, deposited with the secretary of state. These provisions are held by the courts in Louisiana to be a compliance with the constitutional provisions, and I see no objection to them on that score. The law makes the governor, with other members of the returning board, ‘‘ re- turning officers’’ under the constitution, to which I can see no objection. For a statement of the facts attending the election on the 4th of November, and the counting of the votes, I refer to the preliminary report already made by the Committee on Privileges and Elections in regard tv the election of Presidential electors. By the law of 1870 the governor, lieutenant-governor, secretary of state, and John Lynch and T. C. Anderson by name, were constituted a board to count the votes. Lieutenant-Gov- ernor Pinchback and Mr. Anderson, having been candidates for Congress, were, by a provision of the law, prevented from acting on the board, and a struggle arose between Governor Warmoth on the one side, and Mr. Lynch, and Herron, the acting secretary of state, on the other, to fill the vacancies. The governor attempted to depose Herron by appointing Jack Wharton in his place, and claimed that by his vote and Wharton’s they had elected F. H. Hatch and Durant Da Ponte to fill the vacancies, while Lynch and Herron claimed that by their votes they had elected James Longstreet and Jacob Haw- kins. On the next day, the 15th of November, a suit was commenced in the eighth dis- trict court, before Judge Dibble, in the name of the State, on the relation of Lynch and others, to restrain Wharton, Hatch, and Da Ponte from acting as members of the return- ing board, upon which a preliminary restraining order was granted. On the next day, the 16th, a suit was commenced in the same court by Governor Warmoth to restrain Herron, Hawkins, and Longstreet from acting as members of the board, upon which a. like restraining order was granted. Both cases came on for hearing upon the 19th of November, when the court decided that Lynch, Herron, Hawkins, Longstreet, and Gov- ernor Warmoth constituted the legal returning board, dismissed the Warmoth suit, and enjoined Wharton, Hatch, and Da Ponte from assuming to act as members of the board. Two days afterward Judge Dibble, the clerk, and the sheriff were forcibly ejected from the court-room, and Judge Elmore took possession of the bench, having been commis- sioned that morning as judge by Governor Warmoth, but the votes for whom had never been counted by any person havingauthority. Upon the 3d of December following Judge Elmore annulled the judgment rendered by Judge Dibble and dismissed the suit. This case was finally appealed to the supreme court of the State, in which it was decided, on the 23d day of January, that the legal returning board, on the day when the case was decided in the lower court, was composed of Governor Warmoth, John Lynch, F. J. Herron (acting secretary of state when the suit was commenced), James Longstreet, and Jacob Hawkins; that Governor Warmoth had no power to remove Herron and appoint Wharton secretary of state; and that Wharton, Hatch, and Da Ponte had no authority whatever. On the 16th of November, Kellogg, who claimed to have been elected governor, com- menced a suit in the circuit court of the United States before Judge Durell, for the osten- sible purpose of perpetuating testimony, in which he alleged that he had been a candidate for governor before the election, and had been deprived of the office by the wrongful de- nial of the right to vote of 10,000 persons on account of their race, color, and previous con- dition of servitude. Upon the filing of the bill Judge Durell granted an order restraining THE LOUISIANA CASES, 1873-80. 527 Wharton, Hatch, and Da Ponte from acting as members of the returning board, openmg and counting the votes, or in any way meddling with the election returns. On the 6th of December he decided the case, holding that Lynch, Hawkins, Longstreet, and Bovee, secretary of state, together with Governor Warmoth, constituted the legal returning board, and enjoining Wharton, Hatch, and Da Ponte from assuming to act as members thereof. On the day previous he had issued an order to the United States marshal to take possession of the State-house, and prevent any illegal assemblage, which the mar- shal executed by summoning as a posse comitatus a detachment of United States troops. On the 6th of December, Armstead, who claimed to have been elected secretary of state, commenced a suit before Judge Elmore to restrain the members of the Lynch board from counting the votes and making returns in the absence of the official returns of the elec- tion. The restraining order was granted, but the case was removed the next day to the circuit court of the United States by certiorari. On the 7th of December, Antoine, who claimed to have been elected lieutenant-governor on the same ticket with Kellogg, cora- menced suit in the circuit court of the United States, upon which Judge Durell granted an order restraining all persons from taking part in organizing the legislature whose names were not on the lists issued by the secretary of state, and returned as elected by tke Lynch board. In the month of March, 1872, the legislature passed a new election act, which assumeil to abolish the returning board, as created by the law of 1870, and authorized the State senate to elect a board of five from outside of its own members, which act Governor War- moth kept in his possession without signing until the 20th of November, and then signed and published it as a law; but the supreme court of the State, in the case before referred to, decided that this law did not have the effect to abolish the returning board, as created by the law of 1870, until after the returns for the election of 1872, which had been held before the bill was signed, had been counted and the new legislature organized. On the 21st of November, Governor Warmoth, assuming that the act he had signed the day before had abolished the returning board as created by the law of 1870, and that he had power under the constitution to fill vacancies, appointed Mr. De Feriet and four other persons to act as a returning board, to count the votes for State officers and members of the legislature. He placed in their hands for that purpose what purported to be the official returns of the election, upon which they proceeded to count the votes and make proclamation of their finding as to members of the legislature. Mr. Bovee was elected secretary of state in 1868, to hold his office for the same term as the governor, and until the meeting of the regular session of the legislature in 1873. On the 2ist day of August, 1871, Governor Warmoth assumed the power to suspend Mr. Bovee from office and appoint in his stead F. J. Herron as acting secretary of state dur- ing the suspension of Mr. Bovee. In March, 1872, Mr. Bovee commenced a suit to as- sert his title to the office, which was appealed to the supreme court, and decided in his favor on the 2d December, 1872; but he was not restored to the actual possession of the office until the 6th December. On the 20th day of November, in the exercise of the power reposed in him by the con- stituti@n, Governor Warmoth issued a proclamation convening the legislature in extra ses- sion on the 9th of December, at the Mechanics’ Institute, in the city of New Orleans, then used and known as the State-house. By the law the house consisted of one hundred and eight members and the senate of thirty-six members, and, under the construction of the clause in the constitution in regard to a quorum, it was held that it required-a ma- jority of the whole number of which each house should properly consist to constitute a quorum; that is, 55 in the house, and 19 in the senate. The members of the house held their office for two years, and of the senate for four years; one-half of the senate to be elected every two years. Owing to several causes there were but fifteen senators left of those holding over from the election in 1870, and twenty- one were to have been elected at the late election. Mr. Pinchback, who had been elected a senator in 1868, and whose time would expire on the 4th November, 1872, had, on the death of Lieutenant-Governor Dunn, in December, 1871, been elected president of the senate and lieutenant-governor of the State in accordance with the law. The act to provide for filling a vacancy in the office of lieutenant-governor is in these words: ‘‘In case of vacancy in the office of governor the lieutenant-governor shall be gov- ernor; in case of vacancy in the office of lieutenant-governor the senate shaJ] elect a pres- ident, who shall be lieutenant-governor.’’—(Sec. 1580 rev. stat., act of 1865.) There was a dispute in regard to the character of his office, it being held by one party that he was only acting lieutenant-governor by his election as president of the senate, and by the other that he actually became lieutenant-governor, and would continue to hold that office after his term as senator had expired. It is not necessary to go into this question, as it has since been decided by the supreme court of the State that, by such election, Mr. Pinchback became lieutenant-governor, and his office as such did not ex- pire with his term of senator; that he continued legally to pe.form the duties of lieuten- 528 SENATE ELECTION CASES. ant-governor up to the period when the term of Lieutenant-Governor Dunn would have expired had he lived. By the law of the State the legislature was to be organized. by the secretary of the sen- ate and the clerk of the house of representatives of the last legislature. The secretary of state is directed to furnish to those officers a list of the members of the senate and of the house returned as elected by the legal returning board, and no person is entitled to take a seat in either house whose name is not found upon such list. On the day fixed for the meeting of the legislature in extra session, Governor Pinch- back appeared in the senate, took the chair and proceeded to the organization of that body. The secretary of the last senate produced a list from the secretary of state of the newly elected senators. and fourteen appeared and were sworn in; two others appeared the next day, and were admitted to their seats upon taking the oath; and these with four- teen of the senators holding over made thirty present on the second day. Of the sixteen new senators, seven were returned by both the Lynch and De Feriet boards, and about their election there was no dispute. Four others were returned by the Lynch board from strong Republican districts, in which the regular official returns had been thrown out by the De Feriet board, in whole or in part, and about whose actual election by the votes cast there can hardly be any dispute. The house of representatives was organized by the clerk of the last house, who had a list of the members from the secretary of state returned as elected by the Lynch board; and representatives thus returned as elected appeared and were sworn in to the number of seventy-six. Of this number, forty-five were returned as elected by both the Lynch and De Feriet boards, and about their election there is no dispute, leaving thirty-one who were returned by the Lynch board only, whose election was disputed by the De Feriet board. The house then proceeded to the election of a speaker and other officers, and the two bodies were declared to be duly organized according to law. Within three days after this eleven members seceded from the house, and six members from the senate, who proceeded to Lyceum Hall, and there, in connection with a num- ber of persons who had been returned by the De Feriet board, attempted to organize a new legislature, which we will disignate as the ‘‘McEnery legislature.’’? This pretended legislature was organized by the admission of persons who were not returned as elected by any person having authority, and in the absence of those lists of elected members to be issued by the secretary of state as expressly required by the law. It did not meet until three days after the time fixed in the governor’s proclamation for the assembling of the legislature, nor at the place, fixed in that proclamation; and it hasno semblance of legal authority in any respect, but rests entirely upon the unauthorized and unofficial decla- rations that the persons composing it were elected at the election on the 4th of Novem- ber last. But I do not think it necessary to pursue its history any further, as in my opinion it could not under any circumstances come to be regarded as the legal legislature of the State. If, after the legal organization of the Senate and House of Representatives of the United States at the beginning of a new Congress, even a majority of the lawfullywelected members of each body should secede from it and go to the city hall and there attempt to organize a new Congress, it will not be pretended that such new organization could legally become the Congress of the United States. By such act they might disable either House from doing business; but it would be absurd to say that the new one could be received as the legal Congress. The proposition that, after a legislature has been com- pletely organized, it is in the power of seceding members to form a new one which, in contemplation of law, can take the place of the first, is so manifestly unreasonable that I dismiss the claim of the McEnery legislature from further consideration. After the legislature became duly organized, as already stated, it was invested with power expressly conferred by the constitution of Louisiana to determine the qualifications and elections of its own members. This is in its nature an exclusive power. One house cannot divide it-with the other, nor can the exercise of it be controlled by courts. From that time each house has the exclusive control over its membership, whether in the re- tention of old members or in the admission of new ones. If in the original organization a number of persons were admitted as members who had not been legally elected, but whose names were on the list of persons furnished by the secretary of state returned as elected by the proper returning board, their seats were liable to contest, and such contest could only be determined by the house of which they claimed to be members; and under no circumstance could a court inquire into the expulsion of a member of either house or the admission of a new one. Such a power has never been recognized in any State or by any Federal court in regard to Congress. Ifa quorum in each house, who were on the list furnished by the secretary of state as having been returned as elected. by the legal returning board, take their seats and proceed to the work of organization, such organization must in contemplation of law be held to be legal. THE LOUISIANA CASES, 1873-80. 529 The action of Congress in regard to Georgia is no exception to this principle. That was put upon the ground that Georgia had not been fully reconstructed, and that the fundamental conditions upon which reconstruction was to take place, as prescribed by Congress, had been violated before the work of reconstruction had been completed. But this precedent will not apply to the case of any State which has been fully received into the Union and occupies the situation of other States. This principle that each house has the exclusive jurisdiction over all questions touching the election and qualification of its members, and is to determine for itself whether a lawful quorum is present to do business, is so well established that it has been holden by the courts in all the States in which the question has arisen, as well as by the Supreme Court of the United States, that the validity of a statute cannot be impeached by a plea that members took part in its enactment who were not lawfully elected, or that it was passed in the absence of a lawfal quorum, or that its enactment was procured by bribery, or attended by other gross irregularity. After the organization of the two houses was completed, the house of representatives passed a resolution impeaching Governor Warmoth of high crimes and misdemeanors, of which the senate was notified, and then a joint resolution was passed by both houses suspending him from office pending the trial. This devolved the duties of governor, under the constitution, upon Lieutenant-Governor Pinchback. Early in December, Lieutenant-Governor Pinchback, acting as governor, nominated to the senate for con- firmation P. H. Morgan for associate justice of the supreme court to fill the vacancy occasioned by the resignation of W. W. Howe. The nomination was confirmed; but J. H. Kennard, who had been previously appointed by Governor Warmoth to fill the vacancy occasioned by the resignation of Howe and not confirmed by the senate, refused to surrender his seat, and a proceeding was instituted by Morgan to get possession of the office, which was carried by appeal to the supreme court, and on the 31st day of January the supreme court decided that Pinchback was lieutenant-governor, and by the impeach- ment of Governor Warmoth was legally acting as governor; that his nomination of Morgan to the senate for associate justice was in accordance with law; that the senate by which Morgan was confirmed was the legal senate of Louisiana, and that Morgan was entitled to take his seat upon the bench. The legislature during its extra session, which terminated on the 6th of January, passed a number of laws of a general character, which went into operation and were recognized by the courts as being the laws of the State, and among them one abolishing the seventh and eight district courts and creating the superior district court of New Orleans, which court was duly organized and is in the active discharge of its duties. A few minutes after the adjournment of the extra session the regular session began, as provided by the constitution of the State, and the legislature proceeded to the business of the session. Under the laws of Louisiana the life-time of a legislature, like that of a Congress, is two years, and when once it is organized that organization extends throughout the period. The organization at the beginning of the extra session rendered any subsequent one unnecessary, and at the opening of the regular session the members who had been admitted at the extra session appeared and took their seats without further qualification, and by the rules the unfinished business of the extra session was continued in the reg- ular session as if no interregnum had taken place. Should the President convene an extra session of Congress in the month of March, the organization of the House of Rep- resentatives then made would continue through the Congress just as if it was made at the beginning of the regular session. On the 14th of January, an act was passed to promote the speedy trial of contests for judicial offices, the validity of which came before the supreme court in the case of Mor- gan vs. Kennard, and in regard to which the court held that while they could not deter- mine judicially the persons who composed the legislature, yet that they could take judicial notice of the body constituting the legal legislature, and that the law in ques- tion was passed by the legal legislature. This legislature has continued in session up to this time engaged in general and special legislation, the validity of which is recog- nized by all the courts of the State and generally by the people. Louisiana has a constitution which has been ratified by the people; a code of laws enacted by her legislature from time to time; a general system and body of ? law which is recognized and administered by her courts; a supreme court in full operation, district and subordinate courts discharging their duties without obstruction in every part of the State. She has her full complement of parish and local officers, who are performing their duties without resistance or interruption. She has a legislature which was organ- ized under the forms of law, the members of which were declared elected by a tribunal which has been pronounced by the supreme court the lawful one for that purpose, and this legislature has been expressly recognized by the supreme court as being the lawful legislature. She bas an acting governor who has been declared elected by the legislature and installed in office under the forms of law. It cannot be said, therefore, that Lou- S. Doc. 11——34 530 SENATE ELECTION CASES. isiana has not a State government, and that the government is not in all outward as- spects legal and normal. The late insurrrectionary States at the end of the war were without governments of any kind. They were without governors, legislatures, courts, State or subordinate offi- cers; and the United States had the power to provide for the reconstruction of the State governments, and it was their duty to doso. The broad difference between the condi- tion of Louisiana at present and the insurrectionary States at the end of the war must be comprehended by all. The interference of the United States at that time, and under- taking the work of reconstruction, was a constitutional and political necessity. The Constitution declares that the United States shall guarantee to each State a republican form of government, and, by generally received construction, this does not limit the power of Congress to a mere inquiry as to the form, but it is construed to mean as if it read, “the United States shall guarantee to each State a government, republican in its form.’’ Where there are two rival governments in a State, Congress must first ascertain which is the legal government before it can determine the question whether it is republican in form; and if there be no legal actual government, it is impossible that it should be repub- lican in form. But it is not every irregularity in a State government that will destroy its existence or impair its republican or legal character. A State government consists of too many constituent parts to say that the absence of the governor or the presence of a fraudulent one will destroy its existence, and the Constitution and laws have provided the machinery by which the intruder may be expelled and the lawful governor put in his place. Should the legislature be broken up by the secession or resignation of a majority of its members leaving it without a quorum—which has happened in many of the States—that would not destroy the existence of a State government; or, if it be irregu- larly or fraudulently organized by the admission of persons as members who were not elected, it could not be said to have destroyed the existence of the State government. It is hardly necessary to consider how many of the constituent parts of a State government must disappear before the government ceases to exist. The presence of governors and State officers who secured their offices by fraud has occurred many times in our political history, and has never been held to have destroyed the existence of a State government or its legal character. And we know that there have been numerous instances where State legislatures have been broken up by the resignation of members, or by what is commonly called ‘‘ bolting,’’ and yet it was never claimed that such a result destroyed the State government or took away its legal character. The theory of our system is that every State government possesses the power and ma- chinery to correct the wrongs and frauds within itself, practiced under color of or in open violation of its own laws, and that the decision of its own tribunals, created by its con- stitution and laws for such purpose, must be received as final. When the constitution of a State provides that each house of its legislature shall be the judge of its election and qualification of its members, full faith and credit must be given to theiraction; and should the Government of the United States go behind their action to inquire whether the members have been lawfully elected to the legislature, their independence would be wholly destroyed and the validity of their action made to depend upon the will of Con- gress. So, when the laws of a State have constitutionally created a returning board to ascertain who are elected State officers and members of the legislature, if Congress may go behind the decision of that board and inquire whether they had the returns before them, and whether they were acting in accordance with the laws of the State, the elec- tion of State officers and members of the legislature would be placed absolutely under the control of Congress. The Constitution says that ‘‘the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years.’? The manner of constituting thelegislature is left absolutely to each State, and the question of its organiza- tion must be left to be decided by such tribunals or regulationsas are provided by the con- stitution and laws of the State; and the only question about which the Senate may mquire in determining the admission of Senators is whether they have been chosen by the legisla- ture of the State—that legislature recognized by the State, or whose organization has been accepted by other departments of the State government. Under our complex system of government all questions of the organization of State governments, under their own laws. must be left to the decision of the tribunals in such States created for that purpose: and when such decisions have been made they must be accepted by the Government of the United States in their dealings with such States. It is no answer to this to say that in a particular case such tribunals will or have decided wrongfully. The Government of the United States has no right to review their decisions so long as the State possesses a government republican in its form. The doctrine that all questions of election arising exclusively under the constitution and laws of a State must be left to the settlement and determination of the proper tribu- nals created by the State for the adjustment of such matters, was distinctly recognized THE LOUISIANA CASES, 1873-80. 531 by the Supreme Court of the United States in the celebrated case of Luther vs. Borden, growing out of the attempt in the State of Rhode Island to overturn the old charter government and establish a new one in its stead. In that case the Supreme Court said: ‘The point, then, raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of the State; and the well- settled rule in this court is that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of a State. Upon what ground could the circuit court of the United States, which tried this case, have departed from this rule and disregarded and overruled the decision of the courts of Rhode Island? Undoubtedly the courts of the United States have cer- tain powers under the Constitution and laws of the United States which do not belong to the State courts. But the powerof determining that a State government has been law- fully established, which the courts of the State disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals.”’ But the reason for the rule in Luther vs. Borden is much stronger in this case than in that. In that case there was an attempt to set up a new constitution over the old char- ter under which it was claimed that a new government had been organized throughout, involving a new supreme court, as well as legislature and State officers. But in Louisi- ana there is but one constitution, and but one supreme court, which is recognized by all parties, and no attempt made to set up another in its stead, and the only question is as to who were elected State officers and members of the legislature under the recognized constitution and laws of the State, of which the supreme court must necessarily be the final arbiter. There is no impeachment of the supreme court of Louisiana presented to the committee or to the country. All its members but one were placed upon the bench in 1868, before the present troubles arose, and hold their office for four years longer; and although im- putations have been cast upon its action, I know of no foundation for them, and it is not legitimate for Congress to make an inquiry into its motives. The power and duty con- ferred upon the United States by the fourth article to guarantee to every State in the Union a republican form of government is political in its character, and not subject to revision by the judiciary; but when, upon inquiry, it is ascertained that a State has an existing government in active operation, which is not obstructed by violence, in which each department is mutually recognized by the other, and which is republican in its form, there is no foundation for the interference of Congress, and no condition to which its power can attach; and although its officers may have been elected by fraud or installed without election, yet all questions in relation to them must necessarily arise under the constitution and laws of the State, and, under the decision in Luther vs. Borden, be re- ferred for determination to the tribunal of the State. This whole affair, on both sides, is unfortunate and painful, and if Congress could, without exercising a dangerous power and establishing a perilous precedent, set aside the election and provide for a new one, with security that it should be fair, it would be far more satisfactory to the people of the whole nation. Murder is the highest crime; but it is not every court that has jurisdiction to punish it; and one court cannot assume such jurisdiction upon the ground that another, to which it has been granted, will not properly exercise it; and Congress has not the jurisdiction to examine and redress every great wrong that may take place in a State. Where, by the constitution and laws of a State, legal remedies are provided for the redress of all wrongs that may take place in regard to elections, it would be inconsistent with the independence and integrity of the State governments for the United States to interfere and assume jurisdiction upon the ground that the State tribunals have acted wrongfully and fraudulently, or will so act. The Government of the United States is not a Don Quixote, going forth to hunt up and redress all the wrongs that may be inflicted upon the people in any part of the country; but is a Government limited and restrained im its jurisdiction by the charter of its crea- tion, and that charter distinctly recognizes the existence of State governments to be con- stituted legally by the States themselves, subject only to the provision of the higher law that they shall be republican in form. This doctrine in no wise recognizes the blood- stained theory of State sovereignty, which has been the evil spirit in our political system, and to which the present troubles in Louisiana may be traced back, but springs from the great fact that the States have a vast body of rights distinctly guaranteed and recognized by the Constitution of the United States, and that among these is the right to constitute their own legislatures, and determine by their own tribunals the legality of their organi- zation. This great power to guarantee to each State a republican form of government is intended only for the highest and most solemn occasions. If it is invoked for every disorder in a State, it must result in the absorption of the State governments and subvert the whole theory and plan of our political institutions. While we are a nation, in which alone the 532 SENATE ELECTION CASES. sovereignty resides, yet local self-governments which preceded the Constitution, and are recognized and continued by it as a part of the great plan of political salvation, are in- dispensable to our liberty, progress, and happiness, and must be preserved. 1t should be exercised only upon well-defined principles, in cases corhing clearly within their limits, and with all the more caution because it is political in its character, and the use or abuse of it cannot be reviewed by the courts. While it would be imprudent to attempt to define the cases that come within its scope, it may be safely said that it does not com- prehend a disorder in a State arising under its own constitution and laws, for which those laws provide remedies, a State in which there is profound peace, and in which the State government is republican in its form, and discharging its functions in every department without interruption. Even in cases that come within its scope it should not be exer- cised except in the last resort, and the States should be left to work out their own relief and reformation as long as there is any hope. There is a government in Louisiana. In all outward aspects it is legal and normal. Profound peace prevails throughout the State. The government, through the courts and through its legislature and administrative officers, is operating without interruption or hindrance. Should Congress determine to undertake the work of reconstruction, it must first overturn an actually existing government which is republican in its form. The conduct of Judge Durell, sitting in the circuit court of the United States, cannot be justified or defended. He grossly exceeded his jurisdiction, and assumed the exercise of powers to which he could lay no claim. The only authority he had in the matter grew out of the act of Congress of 1870 to enforce the fifteenth amendment, and the act amend- atory of that, passed in 1871, which gave to the courts of the United States jurisdiction in all cases in law and equity arising under the former act. Under the first act two classes of cases might arise: First, actions to enforce the rights of those who had been illegally denied the right to vote upon the ground of race, color, or previous condition of servitude; and second, actions to enforce the rights of those who had been deprived of office by reason of the denial to persons of the right to vote on account of race, color, or previous condition of servitude; and suits in equity ancillary or in aid of these rights of action would come within the jurisdiction of the circuit court of the United States, among which would be a suit to perpetuate testimony. But the pretense that in a suit to perpetuate testimony the court could go beyond the natural and reasonable jurisdic- tion to decide who constituted the legal returning board under the laws of Louisiana, and to enforce the rights of such as it might determine to be members of that board, and to enjoin others who were not, is without any foundation in law or logic. In the Antoine case Judge Durell not only assumed to determine who constituted the legal returning board, but to prescribe who should be permitted to take part in the organi- zation of the legislature and to enjoin all persons from taking part in such organization who were not returned by the Lynch board as elected; and this assumption of jurisdic- tion was made in the face of the express provision in the act of 1870 that its benefits should not extend to candidates for electors, for Congress, or for the State legislature. His order issued in the Kellogg case to the United States marshal to take possession of the State-house for the purpose of preventing unlawful assemblages, under which the marshal called to his aid a portion of the Army of the United States as a posse comitatus, can only be characterized as a gross usurpation. It was not for the United States marshal or for the President to review the decisions and order of Judge Durell, and determine whether he had exceeded his jurisdiction. By the tenth section of the act of 1870, under which Judge Durell had assumed jurisdiction in the case, it is declared to ‘‘be the duty of all marshals and deputy marshals to aid and execute all warrants and precepts issued under the provisions of this act when to them directed;’’ and that they ‘‘shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged.”’ Under this authority the United States marshal called upon the general in command of the United States troops at New Orleans for a detachment to aid him in the enforce- ment of the orders and decree of the court, which demand was complied with. The Constitution enjoins the President to ‘‘ take care that the laws be faithfully exe- cuted,’’ and this involves the enforcement of the orders, decrees, and judgments of the courts of the United States. But by the provisions of the act of 1870 it would seem that the United States marshal has a right to summon upon the instant a portion of the land or naval forces of the United States, without previous authority from the President, to enforce the orders or precepts of the courts. 2 But conceding all the facts in regard to Judge Durell, the question arises how they affect: the legal rights of the parties, and the actual status of the Kellogg government. The Lynch returning board has been decided by the supreme court of the State to be the legal one, and the other boards, known as the Wharton, the De Feriet, and the Forman THE LOUISIANA CASES, 1873-80. 533 boards, to have been without any authority whatever. Has the legal character of that board been impaired or vitiated by the illegal interference of Judge Durell? Conceding that interference to have been in every way wrongful, would it have the effect to vitiate the title of the Lynch returning board, as determined by the supreme court of the State? I think not. A title which the highest legal tribunal has declared to be good is not im- paired by unlawful interference, even by violence in its support. And the case stands thus: That the circuit court of the United States has unlawfully interfered to do certain things which the highest tribunal of the State decides to be lawful and proper in them- selves. The supreme court of the State having held that the legislature was the lawful one which was organized by the admission of such persons only as were returned by the Lynch board as elected members, is the legality of that organization affected by the fact that the circuit court of the United States interfered to prevent the organization of a legislature by persons who were not returned as elected by the Lynch board? If an officer in the performance of his duty were aided by a mob, the performance would not be made illegal by the presence and co-operation of an unlawful assemblage. The Kellogg government is a fact, and its legality is sustained by the judicial tribu- nals of the State, and it is in active operation in all its departments without actual resist- ance anywhere. The McEnery government exists only on paper. McEnery and all those claiming office under it have never been returned as elected by any person having authority under the laws of Louisiana. Every offense complained of on either side in this case was against the constitution and laws of Louisiana, and the question now presented broadly is whether the Congress of the United States shall interfere to correct violations of the laws of the State and to redress wrongs for which redress is provided by the State tribunals. In the report of the majority of the committee it is alleged that the election on the 4th of November was so grossly fraudulent as to make it void; that if it had been fair, Kel- logg and the other candidates on the Republican ticket would have been elected by a large majority. Without concurring in the opinion that the election was void, I enter- tain no doubt that it wasan organized fraud of the largest dimensions, and that a decided majority of the people of Louisiana sympathize with the Kellogg government and ear- nestly desire to see it maintained. Should Congress declare that Louisiana has no legal State government and provide by law for a new election, it would establish a precedent for overturning State governments and setting up new ones under which the government of every State would be at the mercy of Congress as controlled by the passions or exigency of parties. Deploring this condition of things in Louisiana, and earnestly hoping that the people will take warning, and with one accord insist upon honest elections and the faithful observance of the laws, it is my deliberate judgment that it is better for them to bear the ills they have and seek reformation and relief under their own laws and tribunals than to invoke the National Government to the assertion of a power under which State governments would exist hereafter only by sufferance. VIEWS OF MR. HILL. Assenting asI do in the main to the correctness of the statement of facts touching the recent election in the State of Louisiana, and the history of the legal proceedings connected therewith, as set forth in the report of the committee, and commending the just though severe criticisms of a judicial tribunal for its improper intervention, I am still of opinion that the remedy for existing evils proposed by the committee is of ques- tionable expediency and not the most effectual method of restoring order and quiet to a distracted -ommunity. While it must be conceded that the election in certain parishes was not conducted with entire tairness, and in others frauds were committed, it is nevertheless true, according to the evidence before the committee, that on the whole the election was as fair and certainly as peaceable as the people of Louisiana are accustomed to hold. Irregularities and frauds in State elections, unfortunately, are not of rare occurrence beyond the limits of Louisiana. The intervention of a judge without jurisdiction of the cause presented to him prevented the counting of the election returns according to the forms of law. As it is, there has been no legal count of the returns. No one doubts but that for the interposition of a judge of the United States district court the returns of the election would have been counted by a board of canvassers under the laws of the State, and that a result would have been reached, at least, with all the appearances of regularity in which a majority of the people would have acquiesced. Shall the unauthorized act of this official, condemned as it is by all legal minds, be per- mitted of itself to reverse the expressed will of a majority of the voters of Louisiana, or at least a majority of those that voted? Surely it cannot be a sound principle in poli- tics or ethics that an admitted usurpation can create anything more than a government 534 SENATE ELECTION CASES. de facto. To-assert that it may bring into existence by its mere recognition a govern- ment that lives, moves, and has its being solely by such adoption is to declare that the usurping tribunal is supreme and its decisions and orders are irreversible. What boots it to rebuke the illegal and tyrannical assumptions of a judge if his orders and decrees must have all the effect he designed to give them? Of what consequence is it that his violations of law should be reviewed and censured if the effect is the same as though he had not exceeded his jurisdiction and abused the authority of his office? It would seem to be an act of supererogation to pause to wonder at the fatuity that dictated his course, if its end and aim are to stand as facts accomplished. In the light of policy it would seem better in deciding that a government foully and fraudulently set up by the fiat of a judge shall stand because it is a de facto government; that no discredit should be cast upon the integrity or intelligence of the magistrate. It certainly cannot commend a State government to those who are to live under it to inform them that the National Legislature, after a thorough examination into the history of its origin, have ascertained that it was born of fraud and arrogated power, and but for these could never have had existence. To avoid the exercise by Congress of a power so delicate as that of annulling the en- tire election of a State, embracing the highest officials and parish officers of every grade, and a State legislature besides, I would prefer that only such legislation be had as is necessary to preserve order and respect for law in theState. This I think may be effected by enacting a law convening by name the members-elect to the two houses of the legis- lature (whose election has not been disputed before the committee by the contending partisans) on a day certain, in their respective chambers in the Mechanic’s Institute in the city of New Orleans, and requiring them to organize their said houses by electing the necessary officers, and having organized, to proceed to count the said election returns and to declare the result of such count; to seat only such members as may appear by said returns to have been elected to the particular house, as the case may be, and to announce the election of a governor and lieutenant-governor, who shall thereupon be inaugurated for the terms for which they have been chosen at said election, and who shall thereupon proceed to execute the duties required of them by the constitution and laws of the State. JOSHUA HILL. COMPENSATION OF MESSRS. BAY AND M’MILLEN. Monbay, March 3, 1873. Mr. West submitted the following resolution; which was referred to the Committee on Privileges and Elections: “Resolved, That the Secretary of the Senate be, and he is hereby, directed to pay to John Ray and W. L. McMillen, each, full compensation as Senator for the unexpired term for which they were elected, as shown by their respective credentials, until the 4th of March, 1873; and also mileage.’’ [Special session of Senate, March, 1873. ] THURSDAY, March 13, 1873. Mr. West submitted the following resolution; which was referred to the Committee on Privileges and Elections. [Resolution same as that submitted March 3, given above. ] [First session of the Forty-third Congress. ] Mr. West submitted the following resolution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate. [Resolution same as that submitted March 3, given above. ] : Monpay, June 22, 1874, Mr. Carpenter, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution to pay John Ray and William L. Mc- Millen compensation as Senators from the State of Louisiana, submitted a report (No. 476), accompanied by the following resolution; which was ordered to be printed. [Resolution found at end of report. ] THE LOUISIANA CASES, 1873-80. 535 REPORT OF COMMITTEE.* [The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury. ] IN THE SENATE OF THE UNITED STATES. JUNE 22, 1874.—Ordered to be printed. Mr. Carpenter submitted the following report: The Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution offered by Senator West, as follows: ‘‘Resolved, That theSec- retary of the Senate be, and he is hereby, directed to pay John Ray and William L. McMillen, each, full compensation as Senator for the unexpired term for which they were elected, as shown by their respective credentials, until the 4th of March, 1873,’’ submit the following report: Owing to the fact that in the State of Louisiana, in 1872 and 1873, there were two bodies claiming to be the legislature of that State, one known as the McEnery and the other as the Kellogg legislature, John Ray and William L. McMillen each claimed the seat, made vacant in the Senate by the resignation of Hon. William P. Kellogg, and appeared and presented their credentials to the Senate, and attended before the Commit- tee on Privileges and Elections, charged with the investigation of their claims. The committee reported against seating either of them, but both had incurred expenses in the prosecution of their claims. ‘ By analogy to the precedents of the Senate, your committee are of opinion that both Ray and McMillen would be entitled to the salary of a Senator from the time of their election until the disposition of their claims respectively by the Senate; but regarding this precedent as vicious, your committee recommend the adoption of the following resolution: ‘‘Resolved, That the actual expenses necessarily incurred by John Ray and William L. McMillen, claimants to a seat in the Senate from the State of Louisiana in the Forty- second Congress, in presenting their respective claims to a seat in the Senate, be paid out of the contingent fund of the Senate, which expenses shall be presented itemized and verified by the oath of the said Ray and McMillen respectively, and the amounts shall be audited by the Committee to Audit and Control the Contingent Expenses of the Senate. [First session of the Forty-fourth Congress. ] Mr. West submitted the following resolution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate: “Resolved, That the Committee on Contingent Expenses be instructed to report what amounts of compensation, if any, are, in their opinion, due to the respective contestants, William L. McMillen and John Ray, claimants to a seat in the Senate for the unexpired term of William P. Kellogg; and to William L. McMillen as claimant heretofore to a seat in the Senate for the term commencing March 4, 1873.”’ WEDNESDAY, July 5, 1876. Mr. West submitted the following resolution; which was considered by unanimous consent, and agreed to: ‘Resolved, That the claims of William L. McMillen and John Ray, contestants for the seat vacated by the resignation of William P. Kellogg, a Senator from Louisiana, for pay and mileage as Senators for the unexpired term named, be referred to the Committee on Privileges and Elections.’’ [Second session of the Forty-fourth Congress. ] Mr. West submitted the following resolution for consideration: “Resolved, That John Ray, claimant for the seat in the Senate vacated by the resigna- tion of William P. Kellogg, late Senator of Louisiana, be paid the sum of $1,329.14 out of the contingent fund of the Senate.’’ [Second session of the Forty-fifth Congress. ] TUESDAY, January 15, 1878. Mr. Kellogg submitted the following resolution; which was referred to the Committee on Privileges and Elections: “Resolved, That the Secretary of the Senate be, and he is hereby, directed to pay out *Taken from Senate Reports, Ist sess. 48d Cong., No. 476. 536 SENATE ELECTION CASES. of the contingent fund of the Senate full compensation and mileage as Senators to John Ray and William L. McMillen for the unexpired term of William P. Kellogg in the Forty-second Congress.’’ FRIDAY, March 22, 1878. Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the resolution submitted by Mr. Kellogg January 15, 1878, directing the Secretary of the Senate to pay to John Ray and William L. McMillen the compensation and mileage of Senators for the unexpired term of William P. Kellogg in the Forty-second Congress, teported it with an amendment, and submitted a report (No. 182) thereon. REPORT OF COMMITTEE.* [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wis- eonsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] IN THE SENATE OF THE UNITED STATES. MARCH 22, 1878.—Ordered to be printed. Mr. Hoar, from the Committee on Privileges and Elections, submitted the following report: The Committee on Privileges and Elections, to whom was referred Senate resolution to pay John Ray and William McMillen compensation and mileage, report as follows: The full term of William P. Kellogg, Senator from Louisiana, expired March 3, 1873. He resigned January 13, 1873. At the last-named date there were two bodies in Louisiana claiming to be the legal legislatures of that State. One of these bodies elected John Ray to fill the unexpired term; the other elected William L. McMillen. Their respective credentials in due form were presented to the Senate on the 22d day of January, 1873. Those of John Ray were certified to by William P. Kellogg, governor; those of William L. McMillen were certi- fied to by John McEnery. Both sets of credentials were, on the day of their presentation to the Senate, referred to the Committee on Privileges and Elections. On the 20th of February, 1873, the Committee on Privileges and Elections reported— 1. That there is no State government at present existing in the State of Louisiana. 2. That neither John Ray nor W. L. McMillen is entitled to a seat in the Senate, neither having been elected by the legislature of the State of Louisiana. The first proposition was submitted by the committee to the Senate by virtue of a res- olution passed January 16, 1873, in the following terms: “Resolved, That the Committee on Privileges and Elections be instructed to inquire and report to the Senate whether there is a legal State government in Louisiana, and how and by whom it was constituted.” As part of the committee’s report of February 20, 1873, a bill was submitted ordering an election in Louisiana. This measure was considered at great length by the Senate, and was rejected February 27, 1873. A motion to reconsider was laid on the table March 1, 1873. No decision was ever made by the Senate of the question whether there was or was not, at the time specified, a legal State government in Louisiana, but the Senate rejected the bill ordering a new election to be held in Louisiana. The second proposition submitted by the committee, that neither Ray nor McMillen were entitled to a seat in the Senate, was never acted upon by the Senate, as the term for which they claimed to be elected expired without the question having been considered. Throughout the investigation made by the Committee of Privileges and Elections, by order of the Senate, of the affairs of the State of Louisiana, both Ray and McMillen were in constant attendance, aiding the committee by their knowledge of the case and by their testimony in the discharge of the duty imposed upon it. In the Forty-third Congress a resolution that Ray and McMillen be paid as Senators for the unexpired term to which they were elected was referred to the Committee to Audit and Control] the Contingent Expenses of the Senate. Mr. Carpenter, of Wisconsin, who made the report on the Louisiana case from the Committee of Privileges and Elec- tions, was chairman of the Committee on Contingent Expenses. He submitted the following report upon the resolution giving compensation: ‘‘Owing to the fact that in the State of Louisiana, in 1872 and 1873, there were two bodies claiming to be the legislature of that State, one known as the McEnery and the other as the Kellogg legislature, John Ray and William L. McMillen each claimed the seat made vacant in the Senate by the resignation of Hon. William P. Kellogg, and appeared and presented their credentials to the Senate, and attended before the Com- * Taken from Senate Reports, 2d sess. 45th Cong., No. 182. THE LOUISIANA CASES, 1873-80, 537 mittee on Privileges and Elections, charged with the investigation of their claims. The committee reported against seating either of them, but both had incurred expenses in the prosecution of their claims. ‘By analogy to the precedents of the Senate, your committee are of opinion that both Ray and McMillen would be entitled to the salary of a Senator from the time of their election until the disposition of their claims respectively by the Senate; but regarding this precedent as vicious, your committee recommend the adoption of the following resolution: ‘** Resolved, That the actual expenses necessarily incurred by John Ray and William L. McMillen, claimants to a seat in the Senate from the State of Louisiana in the Forty- second Congress, in presenting their respective claims to a seat in the Senate, be paid out of the contingent fund of the Senate; which expenses shall be presented itemized and verified by the oath of the said Ray and McMillen respectively, and the amounts shall be audited by the Committee to Audit and Control the Contingent Expenses of the Senate.’”’ No action was ever had by the Senate upon this recommendation; it was not made until eighteen months after the respective credentials were presented. The claimants to the seat could not have been expected to preserve an account of items of their ex- penditure, nor could they have anticipated that a proposition would be submitted so entirely at variance with the idea of compensation attending Senatorial service, and so contrary to the uniform practice of the Senate. , The chairman of the Committee on Contingent Expenses of the Forty-third Congress was entirely familiar with the claims of Ray and McMillen. He made the report from that committee that they were entitled to compensation, but he proposed an innovation upon the precedents of the Senate in the manner of that compensation. The proposi- tion to change the usages of the Senate did not meet with favor, and by the action had upon the cases of Mr. Pinchback, of Louisiana, and of Mr. Sykes, »f Alabama, occur- ring and passed upon subsequently, the Senate confirmed its uninterrupted usage. In acting upon the two last-cited cases the Senate stipulated ‘‘that in no case shall any pay be allowed to a Senator to begin earlier than the date of his election or appoint- ment.’’ Upon the foregoing facts we are of opinion that each of the contestants was justified in making the contest for the seat. Ifthe usage of the Senate in such cases be followed each should be allowed the sum of $1,334.67, being the amount of compensation and mileage from the date of his alleged election to the end of the term. But we do not recommend such an allowance, but prefer to allow to each claimant only his actual and reasonable expenses incurred in-making the contest. Under the circumstances, however, it would be clearly unjust to require of the claim- ants an itemized account of such expenses. They allege that they kept no such account, relying on the unbroken usage of the Senate to allow salary and not compensation, and that they cannot now furnish either items or vouchers. It appears, however, that each of these gentlemen traveled from New Orleans to Washington, remained here more than a month, laying aside all other business, and wholly devoting himself to this contest. The question required an elaborate and thorough examination of the history of the Lou- isiana election and the claims of the rival State governments. In this examination the contestants acted as counsel, and rendered a service in which, if they had employed other suitable counsel, they might properly pay a large fee, which should be reimbursed by the Senate. On the whole, we recommend the payment to each of the sum of $1,000, which is con- siderably less than the salary and mileage, and is a moderate estimate of the actual cost and expense incurred by each. We therefore recommend that the resolution be amended by substituting therefor the following, and that, so amended, the same be adopted: Strike out all after the words ‘‘eontingent fund of the Senate’’ and insert ‘‘the sum of $1,000 each to John Ray and William L. McMillen, as full compensation for their expenses as contestants for a seat in the Senate for the unexpired term of William P. Kellogg in 1873.” WEDNESDAY, March 27, 1878. On motion by Mr. Hoar, the Senate proceeded to consider the resolution submitted by Mr. Kellogg January 15, 1878, to pay John Ray and William L. McMillen compensation and mileage as Senators from Louisiana; and the amendment reported by the Committee on Privileges and Elections having been agreed to, On the question to agree to the resolution as amended, as follows: “¢ Resolved, That the Secretary ot the Senate be, and he is hereby, directed to pay out of the contingent fund of the Senate the sum of $1,000 each to John Ray and William L. McMillen, as fall compensation for their expenses as contestants for a seat in the Senate for the unexpired term of William P. Kellogg in 1873,” It was determined in the affirmative—yeas 51, nays 7. 538 SENATE ELECTION CASES. On motion by Mr. Cockrell, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Allison, Anthony, Armstrong, Bailey, Blaine, Booth, Bruce, Burnside, Butler, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Conkling, Conover, Davis of West Virginia, Dennis, Dorsey, Eustis, Ferry, Gar- land, Gordon, Grover, Hamlin, Hereford, Hill, Hoar, Ingalls, Johnston, Jones of Florida, Kernan, Kirkwood, Lamar, McCreery, McMillan, Matthews, Maxey, Merrimon, Mitchell, Morgan, Morrill, Oglesby, Paddock, Randolph, Rollins, Saulsbury, Saunders, Spencer, Teller, Thurman, Windom, and Withers. Those who voted in the negative are Messrs. Cockrell, Coke, Eaton, McDonald, Sargent, Wallace, and Whyte. So the resolution was agreed to. [The debate is found on pages 2053-2056 of the Congressional Record, volume 7, part 3, 2d sess. 45th Cong. ] McMILLEN vs. PINCHBACK (MARR AnD EUSTIS). Contest for seat for term beginning March 4, 1873. TUESDAY, January 21, 1873. Mr. West presented the credentials of Pinckney B. S. Pinchback, elected a Senator by the general assembly of the State of Louisiana for the term of six years commencing March 4, 1873. Ordered, That they lie on the table. Monpay, March 3, 1873. The Vice-President presented a telegraphic dispatch, signed by John McEnery as gov- ernor of Louisiana, notifying him of the election of W. L. McMillen as a Senator from that State; and, Objection having been made by Mr. West to the reception of the dispatch, On motion by Mr. Sherman, Ordered, That the question of the reception of the dispatch lie on the table. [The debate is found on page 2147 of the Congressional Globe, part 3, 3d sess. 42d ne 1 * * * * * * Mr. Schurz presented the memorial of W. L. McMillen, praying that the Senate may take notice of his election as a Senator from the State of Louisiana for the term com- mencing March 4, 1873. Ordered, That it lie on the table. FRIDAY, March 7, 1873. Mr. West presented the credentials of William L. McMillen, elected a Senator by the legislature of Louisiana for the term of six years commencing March 4, 1873; which were read. Ordered, That they lie on the table and be printed. a (First session of the Forty-third Congress. ] THURSDAY, December 4, 1873. On motion by Mr. Morton, Ordered, That the credentials of P. B. 8S. Pinchback and W. L. McMillen, claiming seats as Senators from the State of Louisiana, on the files of the Senate, be referred to the Committee on Privileges and Elections. Monpay, December 15, 1873. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred the credentials of P. B. S. Pinchback and W. L. McMillen, claiming seats in the Senate as Senators from Louisiana, reported that the committee were evenly divided upon the question as to whether Mr. Pinchback is, upon his credentials, entitled to be sworn in as a member, and asked to be discharged from the further consideration of the subject, and to Toler the whole matter to the determination of the Senate. * * Mr. Morton submitted the following resolution for consideration; which was ordered to be printed: ‘Resolved, That the credentials of P. B. S. Pinchback for a seat in the Senate of the THE LOUISIANA CASES, 1873-80; 539 United States for six years, commencing on the 4th of March, 1873, being in regular form. he is entitled under the law, and in conformity with the usages of the Senate, to be sworn in as a member; and that whatever grounds of contest there may be as to his right to a seat should be made thereafter.’’ [The debate is found on pages 189-191 of the Congressional Record, vol. ii, part 1.] TuESDAY, December 16, 1873. On motion by Mr. Morton, the Senate resumed the consideration of the resolution de- claring P. B. 8. Pinchback entitled to a seat in the Senate from the State of Louisiana. After debate, Ordered, That the said resolution lie on the table. [The debate is found on pages 220-228 of the Congressional Record, vol. ii, part 1.] MonpDaAyY, January 12,- 1874. Mr. West presented a paper purporting to be a joint resolution of the legislature of Louisiana, expressive of confidence in Hon. P. B. 8. Pinchback, claiming a seat in the Senate as Senator from that State. Ordered, That it lie on the table. TUESDAY, January 20, 1874. Mr. Morton submitted the following resolution for consideration; which was ordered to be printed: ‘Resolved, That the credentials of the Hon. P. B. 8. Pinchback be“referred to the Committee on Privileges and Elections; that the committee have power to send for per- sons and papers, and be instructed to investigate the circumstances attending the election of said Pinchback to a seat in this body.”’ Monpbay, January 26, 1874. On motion by Mr. Morton, the Senate resumed the consideration of the resolution sub- mitted by him on the 15th December last, viz: “Resolved, That the credentials of P. B. 8. Pinchback for a seat in the Senate of the United States for six years, commencing on the 4th of March, 1873, being in regular form, he is entitled under the law, and in conformity with the usages of the Senate, to be sworn in as a member; and that whatever ground of contest there may be as to his right to a seat should be made thereafter.’’ Mr. Morton having modified his resolution to read as follows: “‘Resolved, That the credentials of the Hon. P. B. S. Pinchback be referred tothe Com- mittee on Privileges and Elections; that the committee have power to send for persons and papers, and be instructed to inquire into the conduct of said Pinchback in connection with said election,’’ , After debate, On motion by Mr. Sherman, Ordered, That the further consideration of the said resolution be postponed to Wednes- day next at 1 o’clock. [The detate is found on pages 913-921 of the Congressional Record, vol. ii, part 1.] TUESDAY, January 27, 1874. On motion by Mr. McCreery, Ordered, That the credentials of W. L. McMillen, claiming a seat in the Senate as Senator from the State of Louisiana, be recommitted to the Committee on Privileges and Elections. THURSDAY, January 29, 1874. On motion by Mr. Se to postpone the further consideration of the unfinished business, and that the Senate resume the consideration of the resolution submitted by Mr. Morton on the 15th December last, and modified by him on the 26th instant to read as follows: ‘* Resolved, That the credentials of the Hon. P. B. 8. Pinchback be referred to the Com- mittee on Privileges and Elections; that the committee have power to send for persons and papers, and be instructed to inquire into the conduct of said Pinchback in connec- tion with said election,” Pending debate, . : On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. ‘540 SENATE ELECTION CASES. FRIDAY, January 30, 1874. The Senate resumed, &c. [The debate of the last two days, including. a speech by Mr. Carpenter, is found on pages 1036-1058 of the Congressional Record, vol. ii, part 2. Mr. cia s speech is found on pages 41-43 of the Congressional Record, vol. ii, Appendix. Monpay, February 2, 1874. The Senate resumed, &c. [The debate is found on pages 1109-1111 of the Congressional Record, vol. ii, part 2. Mr. cr speech is found on pages 43-48 of the Congressional Record. vol. ii, Ap- pendix. [Second session of the Forty-third Congress. ] WEDNESDAY, December 16, 1874. The Vice-President laid before the Senate a letter of W. L. McMillen requesting the speedy action of the Senate upon his credentials as Senator-elect from the State of Lou- isiana; which was referred to the Committee on Privileges and Elections. WEDNESDAY, December 23, 1874. Mr. Morton submitted the following resolution for consideration; which was ordered to be printed: “¢ Resolved, That the Senate recognize the validity of the credentials of P. B.S. Pinch- back as certified to by Governor William P. Kellogg, of Louisiana, under the seal of said State; and the Committee on Privileges and Elections are instructed to examine and re- port if said Pinchback is entitled to be admitted on the prima facie case thus made, or if such admission should be postponed until investigation is made as to the charges of corruption in his election alleged against him.’’ FRIDAY, January 22, 1875. Mr. West presented the credentials* of Pinckney B. 8. Pinchback, elected a Senator by the legislature of Louisiana for the term expiring March 3, 1879; which were read. On motion by Mr. Sherman, Ordered, That the credentials, together with the papers in relation to the contested seat in the Senate from the State of Louisiana on the files of the Senate, be referred to the Committee on Privileges and Elections. SATURDAY, February 6, 1875. Mr. West presented a memorial of P. B. S. Pinchback, praying speedy and definite action upon his credentials as Senator-elect from the State of Louisiana; which was re- ferred to the Committee on Privileges and Elections. Monpay, February 8, 1875. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred the credentials of P. B. S. Pinchback, by unanimous consent submitted a report (No. 626), accompanied by the following resolution: “ Resolved, That P. B.S. Pinchback be admitted as a Senator from the State of Lou- isiana for the term of six years beginning on the 4th of March, 1873.”’ [The debate is found on page 1063 of the Congressional Record, vol. iii, part 2.] REPORT OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.] IN THE SENATE OF THE UNITED STATES, FFBEUARY 8, 1875.—Ordered to be printed. Mr. Morton, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, to which were referred the credentials ot * A copy of the credentials is found on page 647 of the Congressional Record, vol. iii, part 1. THE LOUISIANA CASES, 1873-80, 541 P. B.S. Pinchback for a seat in the Senate from the State of Louisiana, have had the same under consideration, and submit the following report: That the certificate of William Pitt Kellogg, then and now the governor of the State of Louisiana, which certificate is verified by the great seal of the State, shows that on the 17th day of January, 1873, the Hon. P. B.S. Pinchback was elected to a seat in the Senate of the United States for the term of six years, beginning on the 4th March, 1873, by the legislature of Louisiana, in manner and form as prescribed by the act of Congress regulating the elections of Senators of the United States. Upon this certificate the committee are of opinion that Mr. Pinchback has a prima facie title to admission as a member of the Senate, and that whatever objections may exist, if any, as to the manner of his election or as to the legal character of the body by which he was elected, should be inquired into afterward. : The committee, therefore, recommend the adoption of the following resolution: Resolved, That P. B.S. Pinchback be admitted as a Senator from the State of Louisi ana for the term of six years beginning on the 4th of March, 1873. IN THE SENATE OF THE UNITED STATES. FEBRUARY 11, 1875.—Ordered to be printed to accompany Report No. 626. VIEWS OF THE MINORITY. The undersigned members of the Committee on Privileges and Elections beg leave to submit their views in relation to the admission of P. B. S. Pinchback as a Senator from the State of Louisiana. The importance that the subject has attained by reason of the complications which now surround it impress it with a gravity not hitherto surpassed by any since the or- ganization of the Government. We feel it to be a proper occasion to give our reasons for the course which our convictions of what is due alike to this body, to the people of Louisiana, and to the whole country impel us to pursue. a resolution to be reported by the committee to the Senate for its consideration is as follows: “‘ Resolved, That P. B. 8S. Pinchback be admitted as a Senator from the State of Lou- isiana for the term of six years beginning on the 4th of March, 1873.”’ The-certificate upon which this resolution is based is as follows: STATE oF LovISsIANA, EXECUTIVE DEPARTMENT, New Orleans, January 15, 1873. I, William Pitt Kellogg, governor of the State of Louisiana, do hereby certify that on the fifteenth day of January, in the year of our Lord one thousand eight hundred and seventy-three, Pinckney B. 8. Pinchback was duly elected by the general assembly of this State to represent this State in the Senate of the United States for the full term of six years from the fourth day of March, one thousand eight hundred and seventy- three. Given under my hand and the seal of this State this fifteenth day of January, A. D. one thousand eight hundred and seventy-three, and the Independence of the United States the ninety-seventh. WM. P. KELLOGG. By the governor: (SEAL. P. G. DESLONDE, Secretary of State. The power of the Senate under section 5, article 1 of the Constitution, to ‘‘judge of the election, returns, and qualifications of its own members”’ is absolute and unlimited. The object in this case is to seat P. B. 8S. Pinchback upon this certificate alone, irre- spective of his election, and which in effect for the present excludes any consideration of the election itself. It may be admitted that the general practice has been to admit the person chosen as a Senator to his seat upon credentials sufficiently authenticated either by the legislature or the governor of the State, subject of course to any contest that might be thereafter prosecuted in respect to his right to the seat. The credentials in themselves, it will be conceded, have no substantial value. It is the election, and the election alone, that gives to the person chosen the right to be a Senator. The certificate of the governor of a State directed to be given by the act of Congress approved July 25, 1866, upon the election of a Senator, is but the certificate of a fact upon which the official existence of the person chosen depends. It gives to it no force whatever, and without it the election is just as good. It is merely one of the evidences 542 SENATE ELECTION CASES. e of the election in a solemn form, and to which due respect should always be paid. In the act referred to there is nothing said as to what effect should be given to such a certificate. It has, however, been generally regarded as sufficient in itself to presume 4 lawfal election of the person represented by it to be chosen. It is most certainly appropriate that this act did not define the force of such a certificate. It prescribes a duty that the governor might or might not observe. The Constitution of the United States provides for the election of Senators by the legislatures of the States. This is their absolute right. Congress may regulate the time and manner of choosing Senators, and the power of Congress over the subject is limited to this only. The right of choos- ing Senators belongs to the legislatures alone, and such election is alone in all cases of inquiry to be determined by its records. The governor is not known in the election; no duty is imposed upon him by the Constitution in respect to it, or in respect to its authentication. The legislature, to which is alone confided the high trust of choosing Senators, can speak through its own organization, its own officers, and its own acts, as its official record will show. The right of election is sacred; the right of having this election determined by its own record is equally sacred; for it might be that if other independent departments of the Government, as the executive, for example, possessed the right or power of authentica- tion in the election of a Senator, you might impinge upon the full enjoyment of the power of the legislature in the due choosing of Senators. This absolute right to choose we hold should not and does not depend for its efficiency upon the action of the execu- tive or any other officer of the State or Federal Government. It will be observed that the certificate, such as we now have under consideration, necessarily involves these elements of belief before it can have the force which is now attempted to be given to it by the report of the committee in this case: first, that the facts stated in regard to the election are true; and second, that the person certifying as governor is in fact what he represents himself to be. The efficacy sought to be im- pressed upon this certificate, in at once admitting the person represented to be chosen to a seat, alone depends upon the latter fact. With this in dispute the efficient power is gone. Investigation is at once inaugurated to settle the disputed point. Inquiry leads to inquiry, and the real life of the certificate is lost in the strife, for it can be readily seen that in a contest as to whether the certificate has any validity, either by reason of the allegation that the person certifying was not in fact the governor, or from any other reason, the State might be left without a Senator, when by refererice to the acts of the legislature the records would show a lawful election by a lawful body, and who could deny that a person so chosen and with such a record could not be admitted without regarding at all the contest about the certificate of the governor, or whether he was in fact governor ? y We advert to this to show that a contest upon the subject of certificates at all for any legitimate cause destroys their force. It was intended that by their force alone there should be immediate unobstructed admission to a seat. It must be conceded, in order to give this effect to the certificate before us, that William Pitt Kellogg was at the time the governor of Louisiana. If he were not the governor, then it is no more than waste paper. All will admit, we presume, that this has been a subject of dispute at least since the State election which took place on the 4th day of November, A. D. 1872. A con- stant, earnest, and at times an aggressive protest has been made against Kellogg, as not only not entitled to be the constitutional and rightful governor of Louisiana, but as a notorious usurper, held in the position he has seized without color of right by means of the armed forces of the United States. Events occurring at the time, and continually since, and some of the most painful character, prove that he does not hold this place practically by any other tenure or power. Whatever else may be said of this notable prominent fact, all are well advised that the right of Kellogg to be governor of Louisiana is in good faith denied and resisted in every way possible to a peaceful resistance. This at once, most naturally, opens up the inquiry as to the certificate itself, and no efficacy is to be ascribed to it until this is satisfactorily settled, for without this it is worthless for any purpose. We apprehend there is no diversity in the committee on this point. The report of the committee insists that Kellogg is the governor of Louisiana, and would proceed to show it by a course of argument and a system of evidence satisfac- tory to gentlemen uniting in that report. On the contrary, another course of argument, and other evidence equally satisfactory, have brought the undersigned to a very different conclusion. The broad field of inquiry and investigation is therefore opened up, for it must be menifest to an unprejudiced mind that an examination into the fact whether Kellogg was the rightful governor of Louisiana at the time he signed this certificate must bring us to his pretended election, and, with it, to the election of the body which chose Pinchback. The whole subject relating to the affairs of this State, in connection with the election held on the 4th of November, 1872, for the election of governor and ather State officers, and members of the legislature, becomes involved in the very first THE LOUISIANA CASES, 1873-80. 543 branch of the inquiry which it is conceded by all must be made and settled betore any force can be imparted to the certificate. Before entering upon this inquiry we submit most respectfully, putting it in the mildest form, whether this is not an exceptional case from the ordinary one, where it is conceded that there was a rightful governor to sign certificates and where there was a legislature to elect. It must be admitted that no such case was ever before presented to the con- sideration of the Senate. Notwithstanding it has been the usual practice to admit, in the first instance, persons to a seat upon such certificates, leaving the contest, if any, to be proceeded with thereafter in the usual way, yet the very first question as to the official character of the person pretending to be governor impairs, as we have before said, the wonted efficacy of such certificate; so that when in the examination of this primary ques- tion is involved the body that chose Pinchback, and in fact the whole State government of Louisiana, would it be fair, rational, and just to stop short of the substantial merits of the case when all can be settled at once? It will be admitted, we think, that in such a controversy, opening up both the official character of the governor and the legal validity of the legislature choosing the Senator, we could determine against the validity of the certificate, and at the same time determine the validity of the election upon the record of the legislature and upon its official power of election. Suppose that such certificates should be attacked for fraud, as they could be, could any one say that such attack would involve alone the fraudulent character of the certificate, and not the rightful issue—the election itself? The attack would involve both, and involving both, common reason would dictate that we should decide the sub- stantial question. While we could, in such an inquiry, set aside the certificate, we would give to the person rightfully chosen his seat, and all done in the same proceeding. For if our inquiry should be alone confined to the certificate, for whatever cause, we would be exposed to the fallacy of setting it aside and then remitting the case to the governor for other or further certificate of a fact simply, when we could, and it would be our duty, ascertain the fact ourselves to end the matter. Therefore we conceive that even in a technical sense, upon a question submitted as this is, an examination of the whole subject is necessary to come to right conclusions; but when we view it in its broad sense, and as we have it in the light of history and events daily tramspiring, many of which we must or are presumed to know, as legislators and members of this body, we would consider it a gross dereliction of public duty did we confine ourselves to a technical consideration of matter not substantial when in it are in- volved questions of the greatest moment, and which in their proper solution demand our earnest efforts and soundest judgment. The facts present the broadest grounds for interposition in the broadest sense to ascer- tain the real right and settle a question that has already given, and, until rightly settled, will give to the country the greatest concern. The facts cannot be denied that impera- tively call for such an interposition; mere parchment titles, mere certificates, sink into insignificance before the patent and undeniable facts which environ this case. Never before has such a case been made, and it is to be hoped that no such one will ever be made again. A brief reference to the prominent facts will show how entirely and necessarily the whole case is before us. A general election was held in the State of Louisiana on the 4th day of November, 1872, for governor and other State officers, for one-half of the senate, and for all the members of the house. John McEnery and William Pitt Kellogg were the opposing candidates for governor, the former in politics being the Democratic and the latter being the Repub- lican candidate. By the official returns made by the regular officers of election to Henry C. Warmoth, then the acknowledged governor of Louisiana, and canvassed and counted by a returning board claiming to be a legal tribunal for this purpose, McEnery was found to have 9,606 majority over Kellogg; and, in respect to the legislature, according to these same official returns, and with the overholding senators, the senate stood— Democrats and Conservatives, 22; Republicans, 11; and there were two vacancies. The house of repre- sentatives stood— Democrats and Conservatives, 71; Republicans, 39; and there were seven vacancies, showing a large majority of Democrats and Conservatives in both branches of the legislature. Another board of returning officers, claiming also to be legally constituted, found that Kellogg was elected, and also found that a large majority of Republican members were elected to the legislature. It is admitted on all hands that this board had no official returns of the election before it, but that its.canvass and count were made up from news- paper reports, the statements of unofficial persons, the political complexion of the parish, and also by counting as votes cast a large number of affidavits of persons who represented in such affidavits that they were from various causes prevented from voting, and the large mass of which, in the end, turned out to be forgeries. In this condition of things, Governor Warmoth, by his proclamation of the20th Novem- 544 SENATE ELECTION CASES. ber, 1872, called an extrasession of the legislature, to be held on the 9th day of December thence following. The regular session, as provided by the constitution, would begin on the 6th day of January, A. D. 1873. On thenight of the 5th day of December, just five days before the meeting of the legislature in extra session, as called to convene by this procla- mation, E. H. Durell, a judge of the district court of the United States at New Orleans, passed an order directing Packard, the United States marshal, to take possession of the State-house, and to hold it subject to his further order, and meanwhile to prevent all unlawful assemblages therein. Packard, with a detachment of United States troops, seized the State-house, held it for weeks, and refused admission to any member of the legislature not returned by the board of returning officers headed by John Lynch, and which, in the course of these views, we shall designate as the Lynch board to distinguish it from the other boards. The consequence was thaton the day of meeting, the 9th of De- cember, no member not returned by the Lynch board was permitted to enter into the State-house. The members meeting there organized. The members, or rather the Dem- ocratic and Conservative portion of them, returned by the board of returning officers, which we shall designate by calling it the De Feriet board, met at the city hall and or- ganized. Governor Warmoth at once recognized the latter body as the lawful legislature of Louisiana, and their place of meeting as the State-house. Upon the organization of the body at the State-house, so called—it being the Mechan- ics’ Institute hall, it being improvised into a State-house, there being no State-house _for the purpose provided by the State since the removal of the capital to New Orleans— consisting of Republicans, it at once passed articles of impeachment against Warmoth, and, by virtue thereof, P. B. S. Pinchback, then lieutenant-governor, took upon himself the office of governor, and claimed to act as such. Kellogg, who was a Senator in Con- gress at the time he became a candidate for governor, resigned his seat in the Senate, by reason of which a vacancy took place in this body from that State. Each of these bodies thus organized elected a Senator to fill this vacancy. One, the McEnery body, as we shall designate it, elected Mr. McMillen, and the other, the Kellogg body, elected Mr. Ray for the unexpired term. Each presented their credentials regularly signed and attested, Mr. McMillen by Governor Warmoth, and Mr. Ray by Acting Governor Pinch- back, each claiming to be the lawful governor of Louisiana. The extra session closed, and on the 6th day of January, 1873, the regular session began. Both bodies met at the same places and both organized. The one, Democratic, declared John McEnery duly elected, and the other, Republican, declared William P. Kellogg duly elected. Both qualified, and both proclaimed themselves to be the governor of Louisiana. On Tuesday, the 15th day of January, the day fixed for electing a Senator for the long term, commencing on the 4th day of March, 1873, the one body, the Democratic, elected W. L. McMillen, and the other, the Republican, P. B.S. Pinchback. Both came here with credentials, those of McMillen signed by McEnery, and those of Pinchback signed by Kellogg, each representing himself to be governor, and in all other respects are in due form, and attested by the seal, or the pretended seal, of the State. The certificates of both were presented in March, 1873, and ultimately referred to the Committee on Privileges and Elections. We have, therefore, presented to our consideration by the certificates before us the fact of two rival bodies and of two rival governors in the State of Louisiana—in fact, of two rival governments, each claiming to be the rightful government of Louisiana, each body claiming to be the lawful legislature of Louisiana and each sending rival Senators for a seat in this body, and each coming accredited with his certificate of election from the respective governors, each claiming to be the rightful governor of Louisiana. It is due alike to the people of Louisiana and to the dignity and constitution of this body that we use all the means in our power for a fair and just ascertainment of the rights of each to send a representative here. It must be acknowleged that as presented it is an exceed- ingly delicate question, and should be approached with all the spirit of fairness and can- dor of which the human judgment iscapable. It-is the first time in our history in which any such case has ever been presented to us, and it grows out of the unsettled condition of society in that State. The question involves an inquiry into the fact as to which of two governors and of two bodies constitute the rightful governor and the rightful legislature of the State. And, indeed, further, in the progress of such an inquiry, whether there is any legislature at all qualified to elect a representative in this body to legislate not only upon matters affecting the affairs of Louisiana but of the whole country. To our minds such a development of facts as we have, both historically and by the investigations and reports of both Houses of Congress made upon the subject-matter, that we should be confined to the inquiry only of ascertaining whether the certificate of the governor was surreptitious, or whether the person certifying was, in truth, the governor he represents himself to be, and not permitted to inquire whether the governor and the body electing (of which he is certifying) are both surreptitious, is beyond our compre- THE LOUISIANA CASES, 1873-80. 545 hension, and where, especially as in this case, the examination of one is the examination of both, one is incidental to the other, and the facts upon which either claim their right of action are interwoven with the facts that apply to both—the one an examina- tion of the certificate of what was done, and the other of the fact of what was done. With these views we beg leave to examine the whole case, and to submit the conclu- sions to which we have arrived. In the first place, however, we propose to confine ourselves to the consideration of the case as presented by the committee upon the certificate alone of Kellogg. It will be observed that the report of the committee puts the question in definite terms. It de- clares Kellogg ‘‘ then and now the governor of Louisiana.’ It asserts what is denied, and presents as the sole question to be determined whether Kellogg was the governor of Louisiana at the time he signed this certificate; and this being so, we are then estopped from going behind it in the first instance by the usage of the Senate. Thus confined in this stage of our inquiry to this single question, it becomes important for us to know all the facts and circumstances upon which Kellogg must rely in order to constitute him the rightful governor of Louisiana, and to this point we shall now direct our attention. When we speak of the governor of Louisiana of course we must mean only that he is the governor according to the constitution and laws of thatState. By the forty-eighth ar- ticle, title 3, of the constitution of Louisiana it is provided that the supreme executive power shall be vested in a governor, who is to hold his office for four years, to be elected by the people. The person having the greatest numbeg of votes shall be declared duly elected. In case of a tie between two or more candidates one of them shall be immedi- ately chosen governor by the joint vote of the members of the general assembly. No one, therefore, can be the constitutional governor of that State unless he be chosen in the manner prescribed. ‘We should, however, always be careful when the question, so grave in its nature, is raised, as in this case, to consider all the direct as well as the indirect facts and circum- stances proving or tending to prove the real issue. And here it is important to remember, in order to avoid misconception, that in deter- mining this question in this or any similar case we are confined solely to powers conferred upon this body to judge of the elections, returns, and qualifications of its own members. Within this scope we possess all power, and our judgment is binding upon all, and can- not be brought into question by any person or tribunal whatever. But beyond this we cannot go; our acts can only have reference to one thing—whether the person chosen is entitled to be a member. Our decision is only binding when applied to this one partic- ular fact. Our decision may be right or it may be wrong—that is for us to bear; but it does not bind other persons or other departments of the Federal or State governments, having other and different relations with the governor or legislature, or both, from con- testing or confirming the rights of either or both to legal existence. Our decision here may be cited to show what we did, but it can be used only as an illustration of what others thought and did, and not as binding upon them except, as we have before stated, upon the fact of Senatorship, in which our jurisdiction is complete and final and binding upon all. The decision of this body upon this questior, be it what it may, does not establish or disestablish the Kellogg government, so as to uffect or conclude the rights of others not involved in the election of Senator itself. The people of Louisiana may con- sider themselves outraged by our action in receiving a Senator not elected by what they may hold to be the rightful legislature; nevertheless they are bound by it, because we have the right to judge and determine; but will any one pretend tosay that the separate action of this body upon this single question, committed exclusively to its jurisdiction, should bind and conclude any other person and any other department, either State or Federal, in their own separate and distinct relations with this legislature, or as to any rights they may have as against or instead of it? Surely not! Therefore our decision does not vest a single right or confer a single power upon any other human being save the person upon which we have passed and admitted to membership upon this floor. But to recur to the question. If, in the course of the investigation, from: all the facts drawn from all the sources to which we have referred, we conclude that the pretended governor is a mere usurper, then his acts are void and avail nothing. Persons hold office or place under three different tenures—first, de jure; second, de facto; and, third, as a usurper—the only three modes, we believe, known to the law; and by one or the other of these tenures does the person exercise the office or place that he holds. The first is clothed with all the powers that right, combined with possession, can give. The second is only clothed with the powers possession can give, that possession being obtained under a color of right; and these powers are limited to certain well-defined acts. The third refers to a person undertaking to hold office without any color of right; he is a mere usurper, whose acts are void. The distinguishing differences between officers de jure and de facto and a mere usurper are well laid down in the books in the earlier days, and the same are observed to this S. Doc. 11 85 546 SENATE ELECTION CASES. day. Ina leading case, decided so far back as 1738, the general principles relating to officers de jure and de facto were well defined. In this case one Goldwire, ‘‘under pre- tense and color of being elected mayor of Christ Church, in the county of Southampton,” was presented unto William Willis, steward of the court leet, and was there sworn into the office of mayor, and, in fact, exercised the office till —— day of ——, 1736, and that being in the exercise of said office, and under ‘‘ pretense of being elected, and sworn into the same, he issued 2 summons to the several burgesses of the corporation to meet,’’ &c., and at such meeting he nominated the defendant Lisle as one of the burgesses, and the question was whether, when he made such nomination, he was mayor de facto, for it was found that he had never been elected, and, if mayor de facto, whether he had the power to make the appointment. It was held by the court that Goldwire was not so much as a mayor de facto; for in order to constitute a mayor de facto it is necessary that there be some form or color of an election; but without this, the taking the title and regalia of the office, and the acting and being sworn in as mayor are not sufficient. Now, here it appears that Goldwire was never elected in fact; and though it be stated that he was sworr at the leet, it does not appear (as it ought) that this was agreeable to the consti- tution of the borough. And it isnot material that he acted as mayor, as it is found that @ quo warranto was recently prosecuted against him, pending which the present election was made, and that he was thereupon adjudged to be a usurper.’? (Andrews’s Reports, Henry vs. Lisle, 173.) The distinctions then made are continued to this day, and are as clearly defined: ‘An officer de facto is one who exercises the duties of an office under color of an ap- pointment or election to that office. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without any color of right, and on the other from an officer de jure, who is in all respects Jegally appointed and qualified to exercise the office. These distinctions are very obvious, and have always been recog- i Connecticut, Plymouth vs. Painter, 588; '7 Johnson, People vs. Collins, 549; 2 Kent. It is claimed by some that though it be a question whether Kellogg be a governor de jure, yet he is a governor de facto, and as such his certificate of the election of Pinchback is to be recognized as equally binding upon us as if he were governor de jure. Holding, as we do, that he is neither the governor de jure nor de facto, but a mere usurper, and a usurper not keeping himself in position by his own unaided local power, but by the aid of armed forces of a foreign power—in its true relations to this case as much a foreign power as that of Great Britain could be—we desire, briefly, to examine this phase of the subject. Keeping in view the rulings we have cited, is Kellogg so much as a governor de facto? In disposing of this we dispose of his character as governor de jure. As we have already noticed, the constitution of Louisiana provides that the governor shall be elected by the people. To be such de facto, he must be in by color of an elec- tion. If he has no color of an election, he is nothing but a usurper, ‘‘ who is one under- taking to act without a color of right.’’ Two propositions are to be here considered, in order to arrive at correct conclusions— 1. Was Kellogg elected by a majority of the votes of the people at the election held on the 4th day of November, 1872? 2. If he was not, then had he such a color of an election as to constitute him governor de facto? This brings us to the wider domain of fact which at every step has marked this contro- versy from its inception in 1872 to the present period. In the direct examination of the matter, all the facts that may tend to a correct result should be considered. We havea great variety of facts and circumstances, some historical in their character, some which we are obliged to know or are assumed to know from our constitutional relations to the State, her people, her government, her officials, whether judicial, ministerial, executive, or political, and those which we have gathered ourselves through committees of this body in the investigation had by resolution of this body passed on 16th J anuary, 1873, and which is as follows: ‘‘ Resolved, That the Committee on Privileges and Elections be instructed to inquire and report to the Senate whether there is any existing State gov- ernment in Louisiana, and how and by whom it is constituted;’’ and to which commit- tee were also referred the certificates of John Ray and W. L. McMillen, both claiming the seat in this body supposed to have been made vacant by the resignation of William Pitt Kellogg. This committee, composed of Messrs. Morton, Carpenter, Logan, Anthony, Trumbull, Alcorn, and Hill, made a diligent and laborious investigation of all the matters con- nected with both questions, and made an elaborate report to the Senate, accompanied by a large amount of testimony. It is Senate report No. 457, Forty-second Congress, third session. From all the evidence, then, and which covers and exhausts the whole subject was Kellogg in fact elected by the people of Louisiana the governor of that State? The testimony shows that the election was held on the 4th day of November, 1872, and that THE LOUISIANA CASES, 1873-80. 547 it was held under the election laws of that State, approved March 16, 1870, and that official returns were made of that election to the governor of the State by the supervis- ors of registration as required by the fifty-third section of that act. The fifty-fourth section of the same act provides for a returning board, before whom all returns are to be laid by the governor, the governor being one of the board by virtue of his office, and this board is to canvass and compile these returns of elections and make returns of the persons elected to the secretary of state. Henry C. Warmoth was then governor of the State of Louisiana, having been elected in 1868, and who, by arti- cle 53, title 3 of the constitution, was to hold his office till the second Monday of Jan- uary thence following the election held on the 4th day of November, 1872, and until the Monday next succeeding the day that his successor shall have been declared as duly elected, and shall have taken the oath of office as required by the constitution. It is not our purpose just now to refer to the difficulties occurring in the organization of the board of returning officers; upon another branch of the subject we shall revert to it; but it is sufficient for our present purpose to ascertain that the election was held and the official returns were made of that election, and that they were counted and the result ascertained. ‘The official returns were made to the governor by the supervisors, and were by him laid before a board of returning officers, claiming to be legally constituted for this elec- tion. It may be necessary here to state that by the election law of 1870 the governor, lieutenant-governor, the secretary of state, one John Lynch, and T. C. Anderson, or a majority of them, were made the returning officers for all elections in the State. The governor had in his possession the official returns of the election, but by reason of the changes in the board through disqualifications and from other causes, and through which two boards were organized, each claiming to be the legal one, and both appealing to the courts of the State to settle their respective rights, he did not lay the official re- turns before either board; but, in view of the condition of things, and to get rid of the difficulties of the situation, and to get rid of both boards, he approved the law passed at the preceding session of the legislature providing the mode of conducting elections, and which repealed entirely and absolutely the election law of 1870. He approved this act November 20, 1872, and it provided specially for the selection of a board of returning officers, to be made by the senate. This at once put out of official existence the con- tending members of the rival boards. The senate not being in session, Warmoth then, by virtue of the power claimed by him under the constitution to fill vacancies, appointed De Feriet, Wiltz, Isabelle, Austin, and Taylor, who took the oath of office, and before whom, on the 4th day of December, 1872, he laid the official returns, and they proceeded to canvass and compile them for senators and members of the house of representatives, and declared the results, and which were then officially promulgated by Governor War- moth. This return gave the results in both branches of the legislature as we have al- ready stated them. On the 20th day of November, 1872, the day on:which he signed the act abolishing the old board, he issued his proclamation calling an extra session of the legislature, to convene on the 9th of December. The majority of the members of both branches of the legislature declared to be elected by this returning board met on the 9th December at the city hall in New Orleans, and organized both houses. They were recognized by Governor Warmoth as the legal legis- lature of Louisiana. After organization, the senate proceeded to elect five persons, taken from all political parties, to constitute the board of returning officers for elections, as required by section 2 of the act of November 20, 1872, and accordingly elected Mitchel, Forman, Thomas, Hunsaker, and Todd as such returning officers. The official returns were laid before this board by the secretary of the De Feriet board, which had just be- fore completed a canvass of them for members of the legislature, as we have stated, and they were all again canvassed by this new board, and with the following result: MeEnery 22s225-se ese se oe Soseetacsessesede nesses sess aces ateccessses 66, "67 Kellogg .-.-----.--.-----.----~---------------~---- 202-2 one e eens e+ 54, 479 Majority for McEmery _--_--------------------------- ---------------. 11, 288 The witness, Mr. Forman, a member of this board, brought with him the official re- turns and had them before the committee of the Senate, then investigating the case, and in all his testimony gave a satisfactory account of the manner in which the canvass was made. His evidence will be found, together with the official vote for governor, in the report made by Mr. Carpenter, and accompanying testimony on pages 75 to 83, in- clusive. There was no pretense that these were not the official returns; they were be- fore the committee. There was no effort made to invalidate them in any way. Every opportunity was given. The same section of the law requiring the supervisor of regis- tration to send the voting list and returns to the governor also required him to make triplicates and retain one. No effort was made by the production of any duplicates to 548 SENATE ELECTION CASES. impair their correctness. It must be conceded that they were the official results, and that according to them McEnery was elected. There can be no other conclusion. It must be conceded, too, that Kellogg was not elected. Whatever right to the position as governor Kellogg may have, he certainly has none by the regular official returns of the votes of the people, as cast and returned under the constitution and laws of Louisiana. Then, having no right whatever by virtue of the election itself, has he any right by color of an election? And this brings us to the second proposition. We can well con- ceive that this right by color of an election is somewhat indefinite in meaning and sub- ject to many deductions in inferences from a given statement of facts, as in this case. Some may ascribe a more rigid construction as to what may be meant by a colorable right to a place than others. But this must be determined upon all the facts and cir- cumstances as they are presented, and we must gather from them whether there is in good faith any colorable right to hold the place; otherwise it is a fraud and a usurpation. There must be some reasonable meaning attached to the words ‘‘colorable right,’’ or “under color of an election.’? Why use them in order to create an officer de facto, and to distinguish him from a usurper, unless they do mean something or have some force? We hold that, giving the weakest possible force to these words, there is nothing in this whole case that can give a pretense to the color of an election. It has been shown that Kellogg was not elected. Then what is there to impress him with the color of an election? Nothing whatever. A more bold, shameless, reckless usurpation is not found in history. He stands upon one thing, and upon one thing alone, and that is the declaration that if the people had voted and voted their sentiments he would have been elected. If this can give a color to a right, and dignify him with official power, even for the most lim- ited purposes, then he is endowed with it. He pretends to hold his election by virtue of a canvass under a board claiming to be returning officers—consisting of Lynch and Herron for a time, then Bovee, Longstreet, and Hawkins—in which they gave some 17,000 majority to Kellogg. The objections to this canvass are, first, that these gentlemen had not a tittle of au- thority to canvass, the law under which they pretended to act being absolutely repealed, and therefore they possessed no power whatever to do so. And next, that there was not an official return before them to canvass; but it is ad- mitted by Lynch in his testimony taken by the committee, found on page 155, that there were no returns before them, and that they obtained their information as to the results of the election from all kinds of sources, and from one particularly, the known political divisions of the voters of a county. Comment upon such a canvass is unnecessary. The machinery of elections by means of which public sentiment is definitely ascertained, and our governments, both Federal and State, are carried on, is an essential element in the American system. There is no substitute for it, and without it there is no order, government, or law. It must be established for the public good, and it must be supported when established for the pub- lic safety. The collected will of the people is only known through it. The voter that does not resort to it for the expression of his will from any cause cannot be heard above it or outside of it. True, an election may be set aside for fraud, intimidation, or other pregnant cause, but still the collected will of the people must be expressed through its machinery. A citizen not voting is as dead in law as if he were in fact dead so far as concerns the affirmative expression of his political will. The question is not what the yoter may have done had he voted or offered to vote, but what did he do by his vote? But to characterize properly the power of this board to make this canvass, and the supreme folly of the canvass itself, it will only be necessary to refer to the report from the Committee on Privileges and Elections, signed by Messrs. Carpenter, Logan, Anthony, and Alcorn, and to which we have already referred. The following extracts are to be found on pages 26, 27, and 28: ‘*One of two things is certain, the governor’s approval of the new election law on the 20th of November gave it effect on that day or it did not. ‘‘Assuming that the approval on that day was regular, the new law absolutely re- pealed all the laws under which the Warmoth board and the Lynch board were pre- tending to act, and of course abolished both boards without regard to the question which was the legal one. All that had been done in the election of November, 1872, in pur- suance of the old laws, that is, the registration, voting, and returns, was as valid after the act of November 20 as before. If the canvass had been made by the proper board under the old law, and in all things completed, the rights of parties based upon that canvass would not have heen affected by the repeal of the laws. But the act of Novem- ber 20 taking effect after the returns were made and before they were canvassed, trans- ferred the duty of canvassing to the new board created by the act.” : Again: ‘On the 6th of December, 1872, the Lynch board—Bovee (who was then acting as ~N THE LOUISIANA CASES, 1873-80, 549 secretary of state in place of Herron), Lynch, Longstreet, and Hawkins—pretended to have canvassed the returns of the election, and certified to the secretary of state that Kellogg had been elected governor; Antoine, lieutenant-governor; Clinton, auditor; Field, attorney-general; Brown, superintendent of education; and Deslondes, secretary of state; and also certified to a list of persons whom they had determined to be elected to the legislature. __ ‘There is nothing in all the comedy of blunders and frauds under consideration more indefensible than the pretended canvass of this board. The following are some of the objections to the validity of their proceedings: an The board had been abolished by the act of November 20. 2. The board was under valid and existing injunctions restraining it from acting at all, and an injunction in the Armstead case restraining it from making any canvass not based upon the official returns of the election. 3, Conceding the board was in existence, and had full authority to canvass the re- turns, it had no returns to canvass. “The returns from the parishes had been made under the law of 1870 to the governor, and not one of them was before the Lynch board. “Tt was testified before your committee by Mr. Bovee himself, who participated in this canvass by the Lynch board, that they were determined to have a Republican legis- lature, and made their canvass to that end. The testimony abundantly establishes the fraudulent character of their canvass. In some cases they had what were supposed to be copies of the original returns, in other cases they had nothing but newspaper'state- ments, and in other cases where they had nothing whatever to act upon they made an estimate based upon their knowledge of the political complexion of the parish of what the vote ought to have been. They also counted a large number of affidavits purporting to be sworn to by voters who had been wrongfully denied registration or the right to vote, many of which affidavits they must have known to be forgeries. It was testified by one witness that he forged over a thousand affidavits and delivered them to the Lynch board while it was in session. It is quite unnecessary to waste time in considering this part of the case, for no person can examine the testimony ever so cursorily without seeing that this pretended canvass had no semblance of integrity.”’ It may be well enough to observe here that besides the distinguished gentlemen who united in this report, Judge Trumbull and Mr. Hill, who were members of the commit- tee, in this respect concurred with the report, whilst differing upon some other things, and in conclusions upon the whole case. The ability of all these gentlemen in the per- formance of the grave duty assigned to them is unquestioned; their labor and attention about it known and appreciated; and their party affiliations must stamp their detail of facts with freedom from all political bias in favor of McEnery and his government. Can anything more be added to show that there is not a pretense by which Kellogg can manufacture a colorable title to an election in fact? It must be remembered that we are not in this controversy obliged to show that Mr. McEnery was elected in fact. Our purposes are answered when we show that Kellogg is not elected, or that he has no colorable title to an election. In simple justice to the gentlemen of the committee making the report to which I have referred, whilst thus admitting that Kellogg was not elected, they come to the conclusion that, from irregularities, intimidations, and frauds, and other causes, no fair election had been held, and that it should be annulled and a new one ordered by Congress, and to be conducted under the auspices of the General Government. In order that there may be no misconception, we give the following extract from their report, which will be found on pages 44 and 45: “The testimony shows that leading and sagacious politicians of the State, who were acting with Warmoth, entertained the opinion before the election that Warmoth’s con- trol of the election machinery was equivalent to 20,000 votes; and we are satisfied by the testimony that this opinion was well founded. We believe that, had registration been accessible to all, and the polling places been properly established, the result of the elec- tion would have been entirely different. And although we cannot approve of such a canvass as that made by the Lynch board, who seem to have acted upon the principle of ‘fighting the devil with fire,’ and circumventing fraud by fraud, and cannot say that Kellogg’s government was elected, nevertheless we believe that Kellogg’s government was defeated and the popular voice reversed by the fraudulent manipulation of the elec- tion. “Tf the Senate should be inclined not to go behind the official returns of the election, then the McEnery government and legislature must be recognized as the lawful govern- ment of the State; and McMillen, if regularly elected by that legislature, should be seated in the Senate in place of Kellogg. But your committee believe that this would be recognizing a government based upon fraud, in defiance of the wishes and intention of the voters of that State.’’ 550 SENATE ELECTION CASES. In all this it will be observed that, whilst they condemn the manner of the election of McEnery, they take care to affirm again that Kellogg was not elected. Then, so far as Kellogg is concerned, there is nothing to show that he had the slightest right, either by an election or the color of an election, to hold this office. He must there- fore be regarded as a usurper; for in no other character could he hold the place, if not in that of governor de jure or de facto. The principles are well and plainly defined in the case of Plymouth vs. Painter, 17 Conn., already quoted, in respect to the acts of persons holding place under one or the other of these modes. The following is from page 593: ‘‘ The acts of a mere usurper of an office, without any color of title, are undoubtedly wholly void, both as to individuals and the public. But where there is a color of a lawful title, the doings of an officer, as it respects third persons and the public, must be respected until he is ousted on a quo warranto, which is the appropriate proceeding to try the validity of a title to an office, and in which it would be necessary for him to show a complete title in all respects; although in a suit against a person for acts which he would have an authority to do only as an officer, he must, in order to make out a justification, show that he is an officer de jure; because the title to the office being directly drawn in question, in a suit to which he is a party, may be regularly decided. So where he sues for fees, or sets up a title to property by virtue of his office, he must show himself to be an officer de jure.’’ It is here laid down— First, that the acts of a usurper are void. Secondly, that the acts of an officer in by a color of title—that is, an officer de facto, where the rights of third persons or the public are concerned—are to be respected. Thirdly, that where he is directly concerned he must show himself to be an officer de jure whenever the direct issue is made, either as to title, or fees, or as a trespasser, or otherwise. If Kellogg, then, be a usurper, the certificate relied upon in this case has no value for any purpose. But let us assume, for the sake of the argument, that Kellogg was gov- ernor de facto; that he was in by color of an election, and by color of an election only, and not by an election itself; with such knowledge upon our part, with the known fact, besides, that his right to the place is denied and contested, that there is a rival governor, in fact a rival government, we should proceed with great caution in giving such efficacy to his simple certificate. True, the third section of the act of Congress of 1866, making provision for the election of Senators, makes it the duty of the governor to certify the election to the President of the Senate; it still stops short of prescribing the force of such a certificate. No doubt Congress intended that ordinarily it should be regarded as suffi- cient for admission to a seat, but it must be manifest that this certificate is not the real credentials of a Senator-elect, but intended originally, we may presume, as a substitute for it. The real credentials of the election is a copy of the record of the election itself, properly certified by the officers of the body electing; for Congress has no right to impose this duty upon the governor, and that neither it nor the person elected can compel the governor to issue any such certificate. There must be design in not presenting a certified copy of the record of election by the legislature instead of depending alone upon this certificate of the governor, when it was well known that every step in the progress of this case would be contested. The decla~ ration in the report submitted by the committee, that Kellogg was then and now the governor of Louisiana, defines the spirit of the whole proceeding; and that is that it is more of an object to get Kellogg recognized in some way as governor by this body than the admission of Pinchback to a seat in it. Therefore should we be more careful still how we undertake, in giving ostensible credence alone to a certificate, to pass upon a higher matter—the legal character of the person giving it. Why not, in such an acknowledged condition of things, recur to his credentials, which the record of the election or a copy of it can make? But, that pro- duced, it is too apparent that the contest would be transferred from the governor to the legislature; the legislature is out of being, and therefore the fact of an election by it can only be inquired into; but the governor is still living in the place in which he was put, and still kept by an armed force, and to be kept there if his acts are to be respected or sanctioned by us. How shall we close our eyes to the facts staring us in the face? We again beg leave to repeat that with the assumption that Kellogg is at best but a governor de facto, with arival governor claiming the right, and with the acknowledged power to exercise it in the absence of the troops of the United States, should we not be careful, if we can in any way abstain from determining questions of the present, which concern alone the present, and which should be determined in a different way and by all branches of the Government, if to be determined at all by it. The election of Pinchback does not concern the present; the body electing him is functus oficio. He must stand or fall by the action of that body. Let us go back to that, and upon the acts and legal validity of * THE LOUISIANA CASES, 1873-80, 551 that body determine the right to a seat. We say again that the passage of the resolution decides only one thing, the right of membership, and binds no one to anything besides; but the fact that in doing this we have acknowledged the legal validity of Kelloge’s official character may influence others or justify others in doing things to the infinite injustice of the people of Louisiana, and to the persons there claiming to be officers by virtue of a rightful election. Again, we well understand the principles which limit and qualify the powers of an officer de facto. His acts are scanned and judged; he can do only those that are to be considered as necessary to be done; indeed, so confined in this respect that it was held, in the case of King vs. Lisle, that the proper question in a case would be ‘‘ whether the person be an officer de facto as to the particular purpose under consideration ;’’ he can do nothing for himself; he cannot set up title by virtue of his office; he cannot sue for his fees or salary; he cannot justify in a trespass; he can do nothing that may bring in issue his right to hold the office without showing that de jure right for the exercise of it. As a judge de facto his judgment in a litigation between third parties would be good; a sale of property under such a judgment would be good to pass title; and for the rea- son that third parties are not supposed to be able toinquire into the rights of one holding and exercising the duties of the office, and must therefore act upon what appears to be the right. Buta sheriff de facto seizing and selling the property under that or any other judgment in a suit against him for the seizure by the owner or possessor of the property, he must for his defense show that he held his office de jure, for this concerns himself only, and he should know whether he was in right an officer. Shorn of the general and enlarged powers of an officer de jure by the plainest princi- ples of law, limited and circumscribed by rules founded in reason and having the sanction of ages, shall we be disposed to give to the act of such an officer—governor de facto, if even he be such—that full and unqualified effect in this case, with the extraordinary cir- cumstances surrounding it, as if he were an officer de jure, when that act, too, bears directly upon the constitution of this body, which we are bound to guard, and upon the right of a State to have its true representatives upon this floor? In regard to the con- stitution of this body the direct issue is made; this pretended governor represents himself to be the governor of Louisiana, and upon this alone does the committee rest the case. It is admitted that he must be the governor to give the certificate any power whatever. In raising the question it is shown that he is only governor de facto, if governor at all, and not de jure, that is, governor for a purpose only, and that purpose to be judged of, whether proper or not, when the exigency arises. It is upon us, and it is whether we shall constitute members of this body upon the certificates of such a governor, or shall we not rather recur, as we have before inquired, into the election itself or the record of it. Upon this body rests the duty of preserving its own organization, and of admitting its own members. Here its power is supreme, and for its independence it must depend upon this power, and its proper and legal and rational exercise; and it is to judge of the fact whether a certificate (not of a governor, as contemplated by the law, arighttul governor in all respects—but of such a governor) shall have the efficacy now asked for it. Indeed, in this very case, in the complications in Louisiana, the troubles and disorders there, the very soul of the objection that we now urge against the recognition of this cer- tificate is made to appear. There is trouble about the State government in that State. There is trouble as to who is the constitutionally elected governor, both claiming it, and as to which body of the two claiming to be the legislature is the real one. In this contest, where so much right is involved, and where right should be done, might it not be that, if we should admit Pinchback upon the certificate of Kellogg, we would to that extent recognize him as the rightful governor of Louisiana, and possibly direct additional power against the other side. Would this be wise, and just, and expedient; and when we know, too, that so far as the certificate in itself is concerned it adds nothing to title, but that the election constitutes this? If it is the policy to settle these disturbances in Louisiana, to recognize either governor or none, do it in the usual manner known to the - laws, and that is by legislation upon the part of Congress, when the whole subject can be considered, and the remedy, if any, be applied. a Having come to the conclusion that Kellogg was a mere usurper and the certificate not entitled to respect, or if itshould be considered by some that he was the governor de facto, that even in this view no force ought to be given to his certificate, we are brought to the consideration of the main fact itself, the election of Pinchback by a legislature. While this is not technically before us, it is substantially. While the report of the committee bases its action entirely upon the force of the certificate, the resolution submits the ques- tion of admission generally. It cannot be denied that the inquiry upon one branch opens up the whole subject, and one cannot be well considered without considering both. This brings us to the examination of the body organized under the returns made by the Lynch board, to which we have referred in the other branch of the case. In looking 552 SENATE ELECTION CASES. into the organization that elected Pinchback, the surreptitious inauguration of Kellogg into the gubernatorial office pales into insignificance before the fraudulent creation of this body imto a legislature and of its shameless pretension to power. ; Even admit that Kellogg was the rightful governor of Louisiana, and that bis certifi- cate should have all the force which could properly under ordinary circumstances attach to it, still all the facts are before us, and they are of the gravest character. Thequestion is not who are members of the legislature of Louisiana—for that body is the judge of this, and of their elections and qualifications; with these we have. nothing to do; but the question is as to the legislature as organized, whether there is one in being to elect, and whether such an one elected Pinchback. The existence of a legislature competent to elect a Senator is not only a historical fact to be known to us as any other patent fact, but it is one which is susceptible of proof. It will be necessary again to give a brief résumé of the facts known to exist in Lou- isiana respecting the organization of the body claiming to be the legislature of that State, and which elected Pinchback. It will be remembered that the election occurred on the 4th day of November, 1872, _and it was held under the election law passed in 1870. The law provided for a board of returning officers, before whom all the returns of the State were to be laid by the gov- ernor, to be canvassed and compiled; and farther provided that the governor, Warmoth; the lieutenant-governor, Pinchback; secretary of state, Herron, and John Lynch, and T. C. Anderson comprise this board. It met on the 13th and 14th November. Pinchback and Anderson, being candidates for office, were disqualified. The governor, Warmoth, removed Herron and appointed Wharton in his stead as secretary of state, by virtue of which he claimed to be a member of the board. Differences arose in supplying the va- eancies occasioned by the disqualification of Pinchback and Anderson. The result was two sets of returning officers, each claiming to be the rightful, legal board; one headed by Warmoth as governor, consisting of himself as governor, Wharton as secretary of state, Hatch and Da Ponte, the latter being chosen to fill the vacancies. The other board, headed by Lynch, consisting of himself, Herron, who still claimed to be secretary of state, Longstreet, and Hawkins, the latter being chosen to fill the vacancies. Both boards applied to the courts of the State, and in the midst of the litigation as to which was the legal board, the governor, Warmoth, on the 20th day of November, A. D. 1872, approved an act which had been passed at the previous session of the legislature, repeal- ing entirely the act passed March 16, 1870, for conducting elections, and under which this election had been conducted up to this time. This act abolished the returning board established by the act of 1870, and made provision for another one to be elected by the senate. This disposed of both boards. No election returns had been laid before’ either. There being no returning board in legal existence to canvass the returns, and’ there being no session of the senate, so that a board could be elected as provided by the law, to consist of five persons, the governor claimed his right to make the appointments under the power to fill vacancies as provided by this article of the constitution of Lou- isiana (article 61, title 3): ‘‘The governor shall have power to fill vacancies that may happen during the recess of the senate by granting commissions which shall expire at the end of the next sessien thereof unless otherwise provided for in this constitution,’ &c. On the 3d day of December he appointed De Feriet, Wiltz, Isabelle, Austin, and Taylor. On the day following he submitted the official returns to them, and they can- vassed and compiled them, and with the results we have before given, showing a large majority of Democrats. and Conservatives in both branches of the legislature. Upon coe same day he made official proclamation of the results ascertained by this board, as ‘ollows: Proclamation. STATE OF LOUISIANA, EXECUTIVE DEPARTMENT, New Orleans, December 4, 1872. Whereas P. S. Wiltz, Gabriel De Feriet, Thomas Isabelle, J. A. Taylor, and. J. E. Aus- tin, returning officers appointed by the governor to fill vacancies existing, in accordance with the constitution and laws of the State of Louisiana, have made declaration of the result of an election held November 4, 1872, and have declared certain persons elected to the senate and house of representatives of the State of Louisiana, as will appear from the returns herewith attached and made a part of this proclamation; and Whereas such returns are compiled from the official returns of - commissioners of elec- tion and sypervisors of registration, on file in this office, and are in fact and in forth accu- rate and correct, and made in accordance with law: Now, therefore, I, Henry Clay Warmoth, governor of the State of Louisiana, do issue this my proclamation, making known the result of said election aforesaid, and command all officers and persons within the State of Louisiana to take notice of and respect the same. THE LOUISIANA CASES, 1873-80. 553 Given under my hand and the seal of the State this 4th of December, A. D. 1872, and of the Independence of the United States the ninety-seventh. H. C. WARMOTH. By the governor: Y. A. WOODWARD, Assistant Secretary of State. At the same time the Lynch board, continuing its organization notwithstanding the repeal of the act under which they pretended to canvass, and from the data to which we have already referred, declared who were elected members of the legislature, a large ma- jority of whom were Republicans. Governor Warmoth, when he approved the bill on the 20th November repealing the election law of 1870, at the same time called an extra session of the legislature to con- vene on the 9th day of December, A. D. 1872, the regular session being that to begin in January, 1873. Warmoth was the regularly constituted governor of Louisiana. The only board ot returning officers in existence having the semblance of law to sustain a legal character was the De Feriet board, appointed by him. This board, and only this board, had can- vassed the official, regular returns of the election, and announced the result, and gave certificates of election. It was well known that the governor, wielding the whole exec- utive authority of Louisiana, would recognize the members as returned elected by the De Feriet board to be rightfully entitled to organize the legislature; that the members would meet on the 9th of December, as was directed by his proclamation, and organize the legislature; and that it would be recognized as the legislature of that State, as it would be in right and in fact the legislature. Itwas well known that that organization would run into the regular session, and that, continuing the legislature of this State, the returns as examined by the De Feriet board would besubmitted to it, and that McEnery would have been declared elected, and would have peaceably entered into the exercise of the office of governor, which would, of course, have closed the career of Kellogg, Pinchback, and their associates for the present in this respect. . All this was well apprehended by Kellogg and his associates. The State courts had failed them, and the determination was to resort to another and a stronger tribunal. Kel- logg, Pinchback, and Packard determined to enlist the courts of the United States in their behalf. So early as the 16th of November William Pitt Kellogg filed his bill in the circuit court of the United States for the district of Louisiana against Governor War- moth and others, ostensibly for the purpose of preserving or perpetuating the evidence of the official returns of the election, then in the hands of Warmoth, or under his control, and praying, among other things, for an injunction. On the day following, the injunc- tion was issued as prayed by the bill. On the 20th November the defendants answered the bill, and the case rested until the 5th of December. : On the 4th of December Governor Warmoth issued the proclamation before cited, whereupon the judge, E. H. Durell, without any application or motion whatever made In the cause, issued the following order: “Circuit court of the United States, fifth circuit and district of Louisiana, in equity. ‘WILLIAM P. KELLOGG vs. No. 6830. ‘HH. C. WaARMOTH ET AL. ‘“Whereas Henry C. Warmoth, one of the respondents herein, has, in violation of the restraining order herein, issued the following proclamation and returns of certain persons claiming to be a board of returning officers, all in violation and contempt of said re- straining order, as follows, viz, &c., &c.: “Now, therefore, in order to prevent the further obstruction of the proceedings in this cause, and, further, to prevent a violation of the orders of this court, to the imminent danger of disturbing the publicpeace, it is hereby ordered that the marshal of the United States for the district of Louisiana shall forthwith take possession of the building known as the Mechanics’ Institute, and occupied as the State-house for the assembling of the legislature therein, in the city of New Orleans, and hold the same subject to the further order of this court, and meanwhile to prevent all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and returns made by said pretended returning officers in contempt and violation of said restraining order; but the marshal is directed to allow the ingress and egress to and from the public offices in said building of persons entitled to the same. t “E, H. DURELIL.”? 554 SENATE ELECTION CASES. This was done on the night of the 5th of December, and at 2 o’clock on the morning of the 6th of December Marshal Packard, with a detachment of United States soldiers, seized the State-house and held it for weeks. Under that order this pretended legislature was organized, and the members only whe were returned by the Lynch board were permitted to enter the hall or particpate in the organization. This organization continued to be protected by the military power of the United States through the extra session into the regular, which began its session on the 6th day of January, and all the time under the protection of the military authority of the United States, and, indeed, which protection has continued to this day. It will be proper to observe that Kellogg commenced his proceedings in the United States courts on the 16th of November. A few days thereafter, on the 27th of November, Kellogg writes to Attorney-General Williams the following: “*T therefore respectfully suggest that General Emory, who I think appreciates the necessity and sympathizes with the Republican party here, be instructed to comply with any requisition that the United States courts may make upon him in support of its mandates and to preserve peace. As at present advised, I think General Emory understands that he is to use the troops in no contingency without instructions from Washington.’’ On December 3 the following order was received from Washington: DEPARIMENT OF JUSTICE, December 3, 1872. 8S. B. PacKaRD, United States Marshal, New Orleans, La. : You are to enforce the decrees and mandates of the United States courts, no matter by whom resisted, and General Emory will furnish you with all necessary troops for that purpose. GEO. H. WILLIAMS, Attorney-General. On the night of the 5th of December the mandate of Judge Durell was made, and on the morning of the 6th the military, in pursuance of the order of Attorney-General Williams, seized the State-house, and the plot to seize the State government of Louisi- ana was consummated. The simple detail of these facts ought to be sufficient in themselves to characterize the whole transaction without any illustration upon our part. There. was not a step taken in the whole proceeding that is to be justified; there is no single act to be sup- ported by any resort to reason, law, or justice. The reckless assumption of Judge Du- rell to interpose in matters wholly belonging to the State authorities, and in terms pro- hibited from doing what he did by the very law of Congress under which he pretended to derive authority to act, is beyond all precedent, and one cannot adequately charac- terize it in language to be used here. The atrocity of his action in directing the marshal of the United States to seize the State-house, where the legislature of the State was to convene, and further directing him to allow certain of its members only to enter it, has but few parallels anywhere, and none before in American history. The whole proceed- ing from its inception down to its final consummation was a gross usurpation accom- panied with every species of fraud and tyranny. The body that was organized under this mandate and its military enforcement is not entitled to any legal existence that any American should acknowledge. The whole is a product of fraud, conspiracy, and of armed force, and is entitled to no consideration. We wish it to be remembered that we are not inquiring into the component parts of a legislative body. Each house of the legislature must do that for itself. We are in- quiring into the aggregate character of the body as organized and as it represents itselt to be—a legislature; how it was brought into being; how supported; and under what authority. We find no single element in it to constitute it a legislature representing the free people of Louisiana under their constitution and laws; but, on the cont: simply a body organized under the mandate of a Federal judge supported by the armed force of the United States, based upon a pretended election found by a returning board without a single official return, and not having a tittle of authority, and acting in viola- tion and in defiance of all law. We find that body, pretending to be the legislature of Louisiana, the mere creature of a conspiracy as bold, as reckless, and as wicked as any that has ever disgraced the annals of history. We speak thus strongly because our in- stincts as American citizens prompt us to the reprobation it so signally deserves. This body thus organized chose P. B. 8. Pinchback a Senator in Congress for the period he claims. The large mass of the members of it were never elected in fact; the returning board declaring them to be elected had not a single power to do so; it never had an official re- turn before it. Judge Durell had no power to issue his mandate and the troops had no THE LOUISIANA CASES, 1873-80. 555 right to enforce it. In the whole tragedy of events, as each succeeded the other, there was not one single act that could for a moment givea color of right to any other. Every one was an undoubted wrong, crime, or usurpation, and yet all combined, and nothing else, organized this body and kept it in being. Can such a body, we ask, so organized, put upon the Senate and upon the people of Louisiana their creature, and he one of the main conspirators? Kellogg, Pinchback, Casey, Packard, Durell, and Williams—names indelibly written upon every page of this most unnatural history of political crime and folly! There is not a single act in the whole proceeding to mitigate the unqualified condemnation it must receive at the hands of every honest man and of every sincere lover of American liberty and of constitutional government. We have stated that the Lynch board, pretending to canvass the returns, had no legal existence; that no official returns were before it to canvass; that the order of Judge Durell was not only void for want of jurisdiction, but that it was a gross usurpation. To sustain all this it is not necessary to depend upon our own declarations; but we recur, and with pleasure, to the able report so often referred to. In addition to what we have already quoted upon this subject, we give the following. In speaking of this order of J udge geal and in connection with it of the De Feriet board, the committee say on e17: me It is impossible to conceive of a more irregular, illegal, and in every way inexcusable act on the part of a judge. Conceding the power of the court to make such an order, the judge out of court had no more authority to make it than had the marshal. It has not even the form of judicial process. It was not sealed, nor was it signed by the clerk, and had no more legal effect than an order issued by any private citizen. ‘* There had been no amendment of the bill of complaint. The law of November 20 had been promulgated. The De Feriet board had been appointed in pretended pursu- ance thereof. Whether, under the constitution, the governor had the power, in the vacation of the legislature, to appoint that board, upon the ground that the act of November 20 created offices, and therefore vacancies in office, your committee do not inquire. But it is understood that the constitution has been so construed in that State, and that Judge Dibble was appointed by the governor under similar circumstances. “The De Feriet board, therefore, had color of official existence. Their canvass was completed and the result promulgated under color of the State law, and it is clear that this gave the Federal court no more right to seize the State-house than to seize the Capitol.”’ - Further, in speaking of Judge Durell, the committee say on page 27: ‘‘Viewed in any light in which your committee can consider them, the orders and injunctions made and granted by Judge Durell in this cause are most reprehensible, erroneous in point of law, and are wholly void for want of jurisdiction; and your com- mittee must express their sorrow and humiliation that a judge of the United States should have proceeded in such flagrant disregard of his duty, and have so far overstepped the limits of Federal jurisdiction.’ Again, on page 28, the committee say: ‘‘But for the interference of Judge Durell in the matter of this State election, a mat- ter wholly beyond his jurisdiction, the McEnery government would to-day have been the de facto government of the State. Judge Durell interposed the Army of the United States between the people of Louisiana and the only government which has the sem- plance of regularity, and the result of this has been to establish the Kellogg government, so far as that State now has any government. For the United States to interfere in a State election, and by the employment of troops set up a governor and legislature with- out a shadow of right, and then to refuse redress of the wrong upon the ground that to grant relief would be interfering with the rights of the State, is a proposition difficult to utter with a grave countenance. Besides, it is impossible to determine to what extent the supreme court may have been influenced in rendering this decision by the fact that the Kellogg government, the creation of the Lynch board, had already been established, and the expectation that it would be sustained by Federal authority.”’ Again, the committee, in discussing another point of the subject, allude incidentally to the manner in which the Kellogg legislature was organized. The committee say, on page 47 of their report: . ‘In November, 1872, Judge Howe, of the supreme court, resigned, and Governor War- moth commissioned J. H. Kennard to fill the vacancy. After the Kellogg legislature was organized under Judge Durell’s injunction, enforced by United States troops, the house of representatives of that legislature pretended to impeach and suspend Governor War- moth, whereupon Pinchback, who had been elected president of the senate in place of Lieutenant-Governor Dunn, deceased, which under the constitution made him lieuten- ant-governor, proclaimed himself acting governor in place of Warmoth, impeached and suspended. Pinchback afterward nominated Morgan, who was confirmed by the senate, to fill the same vacancy.’’ 556 SENATE ELECTION CASES. Also, we vannot refrain from giving the following from the chairman of the committee, Mr. Morton, who in a dissenting opinion used this language respecting Judge Durell and his official conduct: “The conduct of Judge Durell, sitting in the circuit court of the United States, can- not be justified nor defended. He grossly exceeded his jurisdiction, and assumed the exercise of powers to which he could lay noclaim. * * * ‘‘ But the pretense that in a suit to perpetuate testimony the court could go beyond the natural and reasonable jurisdiction to decide who constituted the legal returning board under the laws of Louisiana, and to enforce the rights of such as it might deter- mine to be members of that board and to enjoin others who were not, is without any foundation in law or logic. ‘In the Antoine case Judge Durell not only assumed to determine who constituted the legal returning board, but to prescribe who should be permitted to take part in the organization of the legislature and to enjoin all persons from taking part in such organ- ization who were not returned by the Lynch board as elected; and this assumption of jurisdiction was made in the face of the express provision in the act of 1870 that its ben- efits should notextend to candidates for electors, for Congress, or for the State legislature. His order, issued in the Kellogg case to the United States marshal to take possession of the State-house for the purpose of preventing unlawful assemblages, under which the marshal called to his aid a portion of the Army of the United States as a posse comita- tus, can only be characterized as a gross usurpation.”’ Thus it appears that the whole committee regarded the acts of Judge Durell as a gross usurpation; yet upon that act alone rests the organization of the Kellogg legislature. A body thus organized and thus constituted, as shown by all the facts in the case, is not entitled to any respect, and particularly is not entitled to impose a Senator upon this chamber, upon the country, and especially upon the people of Louisiana, as their repre- sentative upon this floor. In contrast with this body, we know there was a rival body, a rival State government, so far as the State and local officers were concerned; a rival government, too, not depending upon armed forces for organization and existence. A government, though not in active power, was still in being. That rival government, the facts most conclusively show, depended for its legal existence— First. Upon the official returns of the votes cast at the regular election, and canvassed and counted by a board of returning officers known as the De Feriet board, appointed by the governor, as he claimed he had the right to do under the act of November‘ 20, 1872, and the board, in the opinion of the und-.signed, that possessed the power to canvass the returns. Second. Upon the official returns as canvassed and counted by the board elected by the senate of the McEnery legislature, as provided under the same act, and known as the Forman board. Third. Upon the undoubted fact that the official returns were true and gave the resulta as ascertained by both boards. Fourth. Upon the undoubted fact that the people of Louisiana are satisfied that the real will was expressed in these official returns, and that this—the McEnery—is their chosen government. Fifth. Upon the undoubted fact that nothing could have prevented its going into peaceful operation and being the government to-day, except for the interposition of Judge quell and his associates in that crime, supported by the armed forces of, the United tates. Upon the other hand, the Kellogg government depends— First. Upon the canvass of a returning board having no authority and having no offi- cial returns to canvass. Second. Upon the illegal order of Judge Durell, and the énforcement of it by United States troops. Third. Upon the military protection of the United States, and upon that protection alone, as it is an undoubted fact that the withdrawal of this protection would result in an instant dissolution and dispersion of his government. Can the Senate hesitate to determine between such governments? The interposition of mere force without cause and without right, by which one for the present may be put up and the other down, should not deter us in determining which is the rightful one. The soldiers of the United States should not be allowed to step in between our judgment and our duty. The day is not yet upon us, we trust, when the sword is to settle questions alone for us todetermine. Taking all the facts asthey appear in the case before us, from the inception of each rival body to the final consummation in their respective organiza- tions, we can determine between them. It is our duty to do so; and we have facts suffi- ciently numerous and authentic to determine fairly and intelligently between them. Each has chosen Senators, and both are here with certificates. There can be m9 doubt that where there are rival bodies, each claiming to be the right- THE LOUISIANA CASES, 1873-80. 557 ful legislature of a State, and each presenting a Senator for admission upon this floor, we must judge between them, for the reason that we are to judge of the elections, the qual- ‘fications, and returns of our own members; and in this we are to know whether the body choosing a Senator is the legislature having the constitutional right to do so; and that such an one did choose a, Senator. This was clearly submitted in the case of Robbins and Potter, contesting Senators from Rhode Island. Mr. Poindexter, who submitted the majority report in that case, says: ‘There was but one governor and but one senate in the State claiming to be a part of the general assembly. If there had existed another body of men, however chosen, con- tending for the offices of the governor and senators in the State, it will not be denied that their respective rights might be the subject of inquiry in deciding a cont sted electionin the Senate of the United States.” _, The right of the Senate is undoubted to judge in this respect. Its power is not lim- ited, for the sound reason that its independence can only be absolutely preserved in possessing such aright. Inexercising it here, we should not be capricious, but governed in our conduct by rules that good sense, honest intention, and a desire for truth and justice should naturally inspire. No other department of the Government ought to con- trol it; no other department of the Government should be allowed, under any pretext or in the exercise of any power, to trench upon it. It is a primary right, for in its freeand absolute exercise the very life, existence, and organization of free legislative bodies de- pend. Coming to the main point again, should the Senate hesitate between the rival govern- ments? How can the Senate recognize the Kellogg government, stamped, as it is, all over with fraud, conspiracy, and force? There is not an element of free constitutional government in it. Mere intruders and usurpers in all departments of it, how shall the Senate, in respect for constitutional government, admit that such a body as that organ- ized under the order of Durell shall impose upon us a Senator? We might receive with just as much plausibility and complacency a Senator from the soldiery who guarded that body when it went through the forms of choosing one. The bayonet organized it, kept it in being, protected it by day and by night, and without it no one would be here pressing a claim to a seat by virtue of any authority from it. : Speaking for ourselves, we cannot in any manner acknowledge any such election. We cannot give any respect or efficacy to the certificate under consideration as that of a rightful governor, and must, therefore, declare that in our opinion P. B. S. Pinchback is not entitled to a seat as a Senator from the s.2te of Louisiana. It is said that the Senate is bound, or ought to be bound, by decisions of the judicial tribunals of the State when inquiring into the existence of a government or of its officers; also by the action of other departments of the State government; also by the late act of the President and by reason of the possession of the office fora length of time. Weshall only briefly remark that this body is bound by nothing in the exercise of its undoubted power. But admitting that any or all of these combined should have more or less influence upon the judgment of the Senate in coming to conclusions, we may be permitted to say that, in regard to the judicial action of the courts of Louisiana in relation to this subject, the question in issue never was fairly presented, and with the further remark that it is pain- fully evident that a majority of the court deciding cases having relevancy at all to the sub- ject was in complicity with the Kellogg government to maintain its power; and so with the other departments of the State government, for all depended for their very existence upon the official being of Kellogg. As to the action of the President having any bind- ing force upon the Senate, we say that his power to act relates alone to one thing, and that is the suppression of violence when legally called upon for aid in suppressing such violence. His action cannot bind beyond the simple fact and its real dependents; it de- cides no right for us or for Congress. One word as to the continuous possession of Kellogg, and which it is claimed gives him some standing to be considered in this body. His pos- session is that of fraud and force, and this possession is to-day only held by this force. It is the possession of might against right, and the weakness of the title will at once be witnessed upon the withdrawal of the force which keeps him in place. In our opinion, there is nothing in the matters that would be set up to secure a recognition of the Kel- logg government. The wholeis a crime against our civilization and a blot upon our free institutions. WILLIAM T. HAMILTON. ELI SAULSBURY. THURSDAY, February 11, 1875. Mr. Hamilton, of Maryland, submitted the views of the minority of the Committee on Privileges and Elections, to whom were referred the credentials of P. B. S. Pinchback; which were ordered to be printed, to accompany the report. [See Report No. 626, submitted February 8, 1875.] 558 SENATE ELECTION CASES. Monpay, February 15, 1875. On motion by Mr. Morton, the Senate proceeded to the consideration of the resolution reported by the Committee on Privileges and Elections on the 8th instant, that P. B. 8. Pinchback be admitted as a Senator from the State of Louisiana for the term of six years beginning on the 4th of March, 1873. Pending debate, A message from the House, &c. [The debate is found on pages 1277-1289 of the Congressional Record, vol. iii, part 2. } TuESDAY, February 16, 1875. The Senate resumed, &c. [The debate is found on pages 1306-1310 of the Congressional Record, vol. iii, part 2.] WEDNESDAY, February 17, 1875. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, After further debate, On motion by Mr. Morrill, of Maine, at 3 0’clock and 45 minutes p. m. (Thursday), that: the resolution lie on the table, it was determined in the affirmative—yeas 39, nays 22. On motion by Mr. Morton, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Bogy, Conk- ling, Cooper, Davis, Dennis, Eaton, Edmunds, Fenton, Frelinghuysen, Goldthwaite, Gordon, Hager, Hamilton of Maryland, Hamilton of Texas, Ingalls, Johnston, Kelly, McCreery, Merrimon, Morrill of Maine, Morrill of Vermont, Norwood, Ransom, Robert- son, Saulsbury, Schurz, Scott, Sprague, Stevenson, Stockton, Thurman, Tipton, Wad- leigh, Washburn, Windom, and Wright. Those who voted in the negative are Messrs. Boreman, Cameron, Chandler, Clayton, Conover, Cragin, Ferry of Michigan, Flanagan, Hamlin, Harvey, Howe, Jones, Logan, Morton, Oglesby, Patterson, Pratt, Ramsey, Sargent, Spencer, Stewart, and West. So the motion was agreed to. [The a is found on pages 1327-1353, 13858-1382 of the Congressional Record, vol. iii, part 2. THURSDAY, February 18, 1875. Mr. Boutwell presented a memorial of citizens of Massachusetts in favor of the admis- sion of P. B. S. Pinchback as a member of the United States Senate from the State of Louisiana. * [Special session of Senate, March, 1875. ] Frimay, March 5, 1875. Mr. Morton submitted the following resolution: “¢ Resolved, That P. B. S. Pinchback be admitted as a Senator from the State of Lou- isiana for the term of six years beginning on the 4th of March, 1873.”’ Ordered, That it lie on the table and be printed. MonpDay, March 8, 1875. The Senate proceeded to consider the resolution providing for the admission of P. B. 8. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, Pending debate, On motion by Mr. Sherman, the Senate proceeded to the consideration of executive business. [The debate is found on pages 3-7 of the Congressional Record, vol. iv, part 1. ] TUESDAY, March 9, 1875. ; The Senate resumed, &c. [The debate is found on pages 9-17 of the Congressional Record, vol. iv, part 1.] WEDNESDAY, March 10, 1875. The Senate resumed, &c. [The debate is found on pages 17-25 of the Congressional Record, vol. iv, part 1.] FRIDAY, March 12, 1875, The Senate resumed, &c. [The debate is found on pages 32-41 of the Congressional Record, vol. iv, part 1.] THE LOUISIANA CASES, 1873-80. 559 SATUEDAY, March 13, 1875. The Senate resumed, &c.; and, On motion by Mr. Edmunds to amend the resolution by inserting the word ‘‘ not” before the word ‘‘admitted,”’ Pending debate, On motion by Mr. Conkling, the Senate proceeded to the consideration of executive asiness. [The debate is found on pages 41-53 of the Congressional Record, vol. iv, part 1.] Monpay, March 15, 1875. The Senate resumed, &c.; and The question being on the amendment proposed by Mr. Edmunds, viz, insert the word “‘not’’ before the word ‘‘ admitted,’ Pending debate, On motion by Mr. Morton, the Senate proceeded to the consideration of executive busi- ness. [The debate is found on pages 55-62 of the Congressional Record, vol. iv, part 1.] TuEsDAY, March 16, 1875. The Senate resumed the consideration of the resolution to admit P. B. 8. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, After debate, On motion by Mr. West that the further consideration thereof be postponed to the second Monday in December next, it was determined in the affirmative—yeas 33, nays 30. On motion by Mr. West, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Alcorn, Allison, Boutwell, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Clayton, Conover, Cragin, Dawes, Dorsey, Ferry of Michigan, Frelinghuysen, Hamilton, Hamlin, Harvey, Howe, Ingalls, Jones of Nevada, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Oglesby, Paddock, Patterson, Sargent, Sherman, Spencer, West, and Windom. Those who voted in the negative are Messrs. Bayard, Bogy, Booth, Caperton, Chris- tiancy, Cockrell, Cooper, Davis, Eaton, Goldthwaite, Gordon, Hitchcock, Johnson of Tennessee, Johnston of Virginia, Jones of Florida, Kelly, Kernan, McCreery, McDonald, Maxey, Merrimon, Norwood, Randolph, Ransom, Saulsbury, Stevenson, Thurman, Wal- lace, Whyte, and Withers. So the motion was agreed to. [The debate is found on pages 62-91 of the Congressional Record, vol. iv, part 1.] [First session of the Forty-fourth Congress. ] THURSDAY, December 9, 1875. Mr. West presented a letter* of W. L. McMillen, asking permission to withdraw from the files of the Senate his credentials as Senator-elect from the State of Louisiana, and submitted the following order: Ordered, That the request of W. L. McMillen, heretofore claiming a seat in the Sen- ate from the State of Louisiana, for the return of his credentials be granted. TUESDAY, December 14, 1875. Ordered, That the request of William L. McMillen, heretofore claiming a seat in the Senate from the State of Louisiana, for the return of his credentials be granted. After debate, On the question to agree thereto, it was determined in theaffirmative—yeas 30, nays 28. On motion by Mr. Howe, the yeas and nays being desired by one-fifth of the Senators resent, , Those who voted in the affirmative are Messrs. Allison, Boutwell, Bruce, Burnside, Cameron of Wisconsin, Christiancy, Clayton, Conkling, Conover, Cragin, Edmunds, Ferry, Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, McMillan, Morrill of Ver- mont, Morton, Paddock, Patterson, Robertson, Sargent, Sherman, Spencer, West, Windom, and Wright. ’ Those who voted in the negative are Messrs. Bayard, Bogy, Caperton, Cockrell, Cooper, Davis, Dawes, Eaton, English, Goldthwatte, Gordon, Johnston, Jones of Florida, Kelly, eA copy of the letter is found on page 190 of the Congressional Record, vol. iv, part 1. 560 SENATE ELECTION CASES. Kernan, Key, McCreery, McDonald, Merrimon, Norwood, Randolph, Ransom, Saulsbury, Stevenson, Thurman, Wallace, Whyte, and Withers. So it was Ordered, That the request of Mr. McMillen be granted, and that his credentials be returned to him by the Secretary. [The debate is found on pages 200-204 of the Congressional Record, vol. iv, part 1.] CREDENTIALS OF MR. MARR. Monpay, December 20, 1875. Mr. Bayard presented a paper signed by John McEnery as governor of Louisiana and purporting to be the credentials of Robert H. Marr, appointed a Senator to fill the vacancy occasioned. by the resignation of William L. McMillen. Ordered, That it lie on the table. CREDENTIALS OF MR. EUSTIS. TUESDAY, January 18, 1876. Mr. Thurman presented papers purporting to be the credentials of J. B. Eustis as a Senator from the State of Louisiana for the term ending March 3, 1879. Ordered, That they lie on the table. [The debate and a copy of the credentials are found on pages 451-455 of the Con- gressional Record, vol. iv, part 1.] MONDAY, January 24, 1876. On motion by Mr. Morton, ; Ordered, That the papers purporting to be the credentials of J. B. Eustis as a Senator from the State of Louisiana be referred to the Committee on Privileges and Elections. WEDNESDAY, January 26, 1876. Mr. West presented a memorial* of certain State senators of Louisiana in relation to the election of Hon. James B. Eustis as United States Senator from that State; which was referred to the Committee on Privileges and Elections, and ordered to be printed. FRIDAY, January 28, 1876. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred papers purporting to be credentials of J. B. Eustis, claiming a seat in the Senate as a Senator from the State of Louisiana, submitted the following report: REPORT OF COMMITTEE. [The committee consisted of Messrs. Morton (chairman), Logan, Mitchell, Wadleigh, Cameron of Wisconsin, McMillan, Saulsbury, Merrimon, and Cooper. ] / The Committee on Privileges and Elections, to whom were referred the papers relating to the election of J. B. Eustis to a seat in this body by the legislature of the State of Louisiana, beg leave to report: That in their opinion there is no vacancy in the office of Senator from the State of Louisiana, P. B. S. Pinchback having been elected in January, 1873, to the term begin- ning on the 4th of March, 1878. They therefore recommend that the papers relating to Mr. Eustis be laid upon the table. THURSDAY, February 3, 1876. On motion by Mr. Morton, the Senate proceeded to consider the resolution submitted by him March 5, 1875, for the admission of P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, : On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive business. FRIDAY, February 4, 1876. The Senate resumed, &c. The question being on the amendment proposed by Mr. Edmunds, viz, before the word ‘‘admitted,’’ in the said resolution, insert the word “‘not,’? Pending debate, On motion by Mr. Cameron, of Pennsylvania, the Senate proceeded to the considera- tion of executive business. [The debate is found on pages 886-889 of the Congressional Record, vol. iv, part 1.] * Found in Senate Miscellaneous, 44th Cong., Ist sess., No. 41. THE LOUISIANA CASES, 1873-80. 561 Monpay, February 7, 1876. The Senate resumed, &c. [The debate is found on pages 907-913 of the Congressional Record, vol. iv, part 1.] TUESDAY, February 8, 1876. The Senate resumed, &e. [No debate took place. J Monpay, February 14, 1876. The Senate resumed, &c. [The Congressional Record states (page 1065, vol. iv, part 2) that Mr. Morton’s speech nade this day would be printed in the Appendix, but it does not appear there. ] WEDNESDAY, March 1, 1876. The Senate resumed, &c. [The debate is found on pages 1382-1392 of the Congressional Record, vol. iv, part 2.] THURSDAY, March 2, 1876. The Senate resumed, &c. [No debate took place. J FRIDAY, March 3, 1876. The Senate resumed, &c. [The debate is found on pages 1436-1444 of the Congressional Record, vol. iv, part 2.] Monpay, March 6, 1876. The Senate resumed, &c. [No debate took place. J TUESDAY, March 7, 1876. The Senate resumed, &c. [The debate is found on pages 1511-1516 of the Congressional Record, vol. iv, part 2.] ; WEDNESDAY, March 8, 1876. The Senate resumed the consideration of the resolution to admit P. B. S. Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, The question being on the amendment proposed by Mr. Edmunds, viz, before the word ‘admitted ’’ in the said resolution insert the word ‘‘ not,’ After debate, it was determined in the affirmative—yeas 32, nays 29. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock- rell, Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor- ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, Morrill of Vermont, Norwood, Paddock, Randolph, Ransom, Saulsbury, Stevenson, Thur- man, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs Allison, Anthony, Boutwell, Bruce, Cam- eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham- ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Nevada, Logan, McMillan, Mitchell, Morton, Patterson, Sargent, Sharon, Sherman, Spencer, West, and Windom. So the amendment was agreed to. On the question to agree to the resolution as amended, it was determined in the affirm- ative—yeas 32, nays 29. On motion by Mr. Morton, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock- rell, Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor- ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, Morrill of Vermont, Norwood, Paddock, Randolph, Ransom, Saulsbury, Stevenson, Thur- man, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Boutwell, Bruce, Cam- eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham- ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Nevada, Logan, McMillan, Mitchell, Morton, Patterson, Sar, cent, Sharon, Sherman, Spencer, West, and Windom. So it was Resolved, That P. B. 8. Pinchback be not admitted as a Senator from the State of Louisiana ‘for the term of six years beginning on the 4th of March, 1873. [The debate is found on pages 1545-1558 of the Congressional Record, vol. iv, part 2.} S. Doe. 11 36 562 SENATE ELECTION CASES. [Special session of Senate, March, 1877. ] THuRsDAY, March 8, 1877. Mr. Thurman submitted the following resolution for consideration: “ Resolved, That the credentials of J. B. Eustis, claiming to be a Senator from the State of Louisiana, be taken from the files and referred to the Committee on Privileges and Elections when that committee shall be appointed.’’ Feipay, Yarch 9, 1877. On motion by Mr. Thurman, the Senate proceeded to consider the resolution yesterday submitted by him for the reference of the credentials of J. B. Eustis to the Committee on Privileges and Elections; and The resolution was agreed to, as follows: “Resolved, That the credentials of J. B. Eustis, claiming to be a Senator from the State of Louisiana, be taken from the files and referred to the Committee on Privileges and Elections.”’ [First session of the Forty-fifth Congress. ] THURSDAY, October 18, 1877. Mr. Thurman submitted a motion that Mr. J. B. Eustis be now sworn as a Senator from the State of Louisiana for the term expiring March 3, 1879. Mr. Conkling objected to the consideration of the motion, and raised the question of order, viz, that the credentials of Mr. Eustis having been referred to the Committee on Privileges and Elections at the last special session of the Senate and not having been reported upon, were not before the Senate, but still in possession of the committee under the fifty-ninth rule, which prescribes that all subjects referred to committees and not reported upon at the close of a session of Congress shall be returned to the office of the Secretary, to be by him retained until the next session, when they shall be retwmed to the several committees. The Vice-President submitted the question of order to the Senate in the following words: “Shall all subjects referred to committees and not reported upon at the close of the last preceding session of this body, in March last, and returned to the office of the Sec- retary of the Senate, be referred to the several committees to which they had previously been referred? ’’ And it was determined in the affirmative. On motion by Mr. Thurman that the Committee on Privileges and Elections be dis- charged from the further consideration of the credentials of J. B. Eustis, Mr. Edmunds objected to the consideration of the motion this day. When, On motion by Mr. Thurman (at 3 o’clock and 16 minutes p. m.), the Senate adjourned. [The debate is found on pages 107, 108 of the Congressional Record, vol. vi.] FRIDAY, October 19, 1877. The Senate proceeded to consider the motion yesterday submitted by Mr. Thurman to discharge the Committee on Privileges and Elections from the further consideration of the credentials of J. B. Eustis; and, After debate, On motion by Mr. Thurman, Ordered, That the motion lie on the table. : [The debate is found on pages 109-115 of the Congressional Record, vol. vi.] SATURDAY, December 1, 1877. Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were referred papers purporting to be credentials of James B. Eustis, claiming a seat as a Senator from the State of Louisiana, reported the following resolution: ‘‘ Resolved, That James. B. Eustis is lawfully entitled to a seat in the Senate of the United States from the State of Louisiana, from the 12th day of January, 1876, for the ake ending March 3, 1879; and that he be admitted thereto upon taking the proper oath. Mr. Ingalls asked and obtained leave of the Senate to submit the views* of a minority of the Committee on Privileges and Elections on the papers purporting to be credentiala * Never submitted. ' THE LOUISIANA CASES, 1873-80. 563 of James B. Eustis, claiming a seat in the Senate as a Senator from the State of Louisi- ana. 3s REPORT OF COMMITTEE. [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wis- consin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] IN THE SENATE OF THE UNITED STATES. DECEMBER 1, 1877.—Ordered to be printed. Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the fol- lowing report: . The Committee on Privileges and Elections, to whom were referred the credentials of James B. Eustis for a seat in the Senate of the United States from the State of Louisi- ana for the term of six years commencing March 4, 1873, ask leave to submit the fol- lowing report: _. Mr. Eustis claims to have been elected on the 12th of January, 1876. The body which elected him was that formed by what is known as the Wheeler compromise; and there is no doubt that it was the lawful legislature of Louisiana. : Two questions arise in this case: First, whether Mr. Eustis was lawfully elected; second, whether at the time of his election a vacancy existed which the legislature of Louisiana had the right to fill. The legislature of Louisiana on the 12th day of January, 1876, consisted of a house containing one hundred and eleven members and a senate with thirty-six senators. On the 11th day of January, 1876, the house voted to go into an election for United States Senator, and the senate on the same day refused to do so. On the 12th day of J anuary, it appearing that there had been no election on the day before, sixty-four members of the house and twelve members of the senate, being a majority of all entitled to seats in both houses, met in joint convention and elected Mr. Eustis. Your committee find that although the senate refused to take part as such in said election, and although a minority of the senate only did take part in it, yet there was a substantial compliance with the act of Congress of 1866. Upon the constitutionality of that act your committee express no opinion. The Senate has repeatedly, however, by its action affirmed its constitutionality; and your committee feel bound by the prece- dents which the Senate has established. The second question, whether or not a vacancy existed at the time of Mr. Eustis’s election which the legislature of Louisiana had the right to fill, is one of some difficulty. At the time of said election Mr. P. B. S. Pinchback was the claimant for the same seat under two elections—one in 1873, the other in 1875. His credentials and claims under said elections had been presented to the Senate and by it referred to the Committee on Privileges and Elections. Said committee, on the 5th day of March, 1875, reported a resolution to the Senate that Mr. Pinchback be admitted thereto. On the 8th day of March, 1876, that resolution was amended so as to change it to a resolution that he be not admitted. The resolution was passed as thus amended on the same day. Your committee feel bound to regard that vote of the Senate as a final adjudication of the claims of Mr. Pinchback and a decision that he had no right to a seat. Mr. Eustis’s election took place while Mr. Pinchback’s case was pending in the Senate, and it may be contended with ruch force that until the final adjudication by the Senate of Mr Pinchback’s claims there was no vacancy which the legislature was authorized to fill. This question arose at the first session of the Twenty-third Congress, in the case oi Potter vs. Robbins, where a majority of the special committee of the Senate held that the legislature of Rhode Island had no authority to proceed to the election of another Senator until the seat of the Senator-elect had been vacated by a solemn decision of the Senate of the United States. Silas Wright, of New York, made a report in behalf of the minority of said committee, in which it was contended that if the election of Mr. Robbins was not made by the lawful legislature of the State it was absolutely void, and that therefore Mr. Potter’s election while Mr. Robbins’s claim to a seat in the Senate was still pending was valid. Your committee do not question the soundness of the rule laid down in that case, but are not disposed to apply it to this case, where the circumstances are very different. In the case of Potter vs. Robbins, Mr. Robbins had been admitted to the Senate, the com- mittee had before it both his credentials and those of Mr. Potter; but here there is no contest. The Senate never admitted Mr. Pinchback to his seat, but decided that he had no right thereto. ; This seat has long been vacant. Mr. Eustis is the only person who appears to claim it. The lawful character of the legislature which elected him is admitted. His election 564 SENATE ELECTION CASES. was substantially in compliance with the law of Congress. No one appears to contest his right to a seat. Under these circumstances your committee believe that Mr. Eustis should be admitted to the Senate, and report a resolution to that effect and recommend its passage. [Second session of the Forty-fifth Congress. ] Monpbay, December 10, 1877. On motion by Mr. Wadéleigh, the Senate proceeded to consider the resolution reported by the Committee on Privileges and Elections declaring James B. Eustis entitled to a seat in the Senate as a Senator from the State of Louisiana; and, After debate, On the question to agree to the resolution, as follows: ‘“‘Resolved, That James B. Eustis is lawfully entitled to a seat in the Senate of the United States from the State of Louisiana, from the 12th day of January, 1876, for the term ending March 3, 1879, and that he be admitted thereto upon taking the proper oath,”’ It was determined in the affirmative—yeas 49, nays 8. On motion by Mr. Ingalls, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Anthony, Bailey, Barnum, Bayard, Beck, Booth, Bruce, Burnside, Chaffee, Christiancy, Cockrell, Coke, Davis of West Vir- ginia, Dawes, Dorsey, Eaton; Ferry, Garland, Gordon, Harris, Hereford, Hill, Johnston, Jones of Florida, Jones of Nevada, Kernan, Kirkwood, Lamar, McCreery, McDonald, McPherson, Matthews, Maxey, Merrimon, Mitchell, Morgan, Oglesby, Paddock, Patter- son, Plumb, Randolph, Ransom, Saulsbury, Teller, Thurman, Voorhees, Wadleigh, Wal- lace, and Withers. Those who voted in the negative are Messrs. Allison, Cameron of Wisconsin, Hamlin, Howe, Ingalls, McMillan, Morrill, and Saunders. So the resolution was agreed to. Mr. Eustis then appeared, and the oaths prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. [The debate is found on pages 82-87 of the Congressional Record, vol. vii, part 1.] COMPENSATION OF MR. PINCHBACK. MonpDAy, April 17, 1876. Mr. Mitchell, from the Committee on Privileges and Elections, submitted a report (No. 274), accompanied by the following resolution. [Resolution found at end of report. } “REPORT OF COMMITTEE. IN THE SENATE OF THE UNITED STATES. APRIL 17, 1876.—Ordered to be printed. Mr. Mitchell, from the Committee on Privileges and Elections, submitted the follow- ing report: The Committee on Privileges and Elections, having under consideration the question of the allowance proper to be made to P. B. 8. Pinchback, late a contestant for a seat in the Senate from the State of Louisiana, submit the following report: The great length of time that elapsed between the beginning of the term for which Mr. Pinchback was a contestant and the date of the final determination of that contest by the Senate, as also the remarkably close vote by which such contest was decided, have im- pressed your committee with the belief that the full measure of compensation which the uniform action of the Senate heretofore has given to contestants should be allowed in this case. Your committee are advised by the journals of the Senate that the rule established by this body in similar cases is the payment to the contestant of the amount he would have been entitled to receive in case he had been admitted and served the time the contest was pending; in other words, an amount equal to the compensation and mileage of a Senator for the time covered by the contest. A few citations will suffice to show the uniformity of this rule. O. B. Hart, contesting the seat of A. Gilbert, of Florida, was paid from the contingent fund from the 1st to 28th of April, 1870, under the following resolution, passed May 11, 1870 (Senate Journal, second session Forty-first Congress, pages 585 and 634): THE LOUISIANA CASES, 1873-80. 565 ‘‘ Resolved, That the Secretary of the Senate be directed to pay, out of the contingent fund of the Senate, to O. B. Hart, claimant of a seat in the Senate from the State of Florida, the usual mileage of a Senator, and monthly pay from the date of presenting nN credentials until the passage of the resolution declaring him not entitled to a seat. H. P. Farrow and R. H. Whitely, contesting respectively with J. Hill and H. V. M. Miller, from Georgia, were paid from the 16th of February, 1870, to the 30th of January, 1871, under the following resolution, passed February 25, 1871 (Senate Journal, third session Forty-first Congress, page 369): Resolved, That the Secretary of the Senate be directed to pay to H. P. Farrow and R. H. Whitely, contestants from the State of Georgia, compensation from the 16th day of February, 1870, the date of their election by the reorganized legislature of Georgia, to a day of January, 1871, when the Senate decided they were not entitled to seats. Foster Blodgett, claiming a seat from the State of Georgia, was paid from March 4, 1871, to December 19, 1871, in pursuance of the following resolution, passed January 9, 1872 (Senate J: ournal, second session Forty-second Congress, page 94): ‘Resolved, That the Secretary of the Senate be directed to pay, out of the pay and mileage account, to Foster Blodgett, claiming a seat as Senator-elect from the State of Georgia, the pay and mileage of a Senator from March 4, 1871, to December 19, 1871, when the question of his right to his seat was determined by the Senate.”’ Again, J. C. Abbott, of Noruh Carolina, contesting the seat of Senator Ransom, was paid from March 4, 1871, to the 23d of April, 1872, under the following resolution: “‘ Resolved, That Joseph C. Abbott, late contestant for a seat in this body from the State of North Carolina, be allowed his salary from 4th of March, 1871, to the 23d of April, 1872, and one mileage each way.”’ This resolution was passed April 24, 1872. (See Senate Journal, second session Forty: second Congress, page 595.) Numerous other citations might be adduced; these will suffice, however, to establish the uniform rule of the Senate. This committee, on the 8th of March, 1876, in reporting back Senate resolution No. 10, to pay Francis W. Sykes, of Georgia, contesting with Senator Spencer, the compen- sation and mileage of a Senator from the 4th day of March, 1873, to the 28th day of pein 1874, when said contest was decided, submitted (by Mr. Cooper) the following report: ‘‘The rule established by the Senate in cases similar to the present one has been. uniform. A person applying for a seat in this body by reason of an election by the legislature of a State, although his application has been refused and another adjudged entitled to the seat, has been paid the amount he would have been entitled to receive if he had been admitted and served the time the contest was pending. The action of the Senate upon such cases has been with such great unanimity as to call for little or no debate. The reasons therefor upon which the rule is based can only be surmised. It may be said the person claims his seat in pursuance of an implied duty imposed upon him to thus assert the right of his State to be represented in this body, which duty he owes to the public, and the expenses incurred in the performance of a public duty should be paid out of the common treasury. “A proper respect for the action of a State in the choice of a Senator may also justify the rule. “The committee see nothing in the present case to take it out of the general rule; and therefore recommend the passage of the resolution.” The case of Pinchback is (considering the final action of the Senate in the contests of the two cases) parallel with that of Sykes in this, that each claimed under an election by a body adjudged by the Senate afterward not to have been the legislature of the State. The case of Pinchback, however, is much the stronger from the fact that the alleged legislature from which Mr. Sykes claimed his election was never recognized as the legis- lature of the State of Alabama by any of the departments of Government, while the Kellogg legislature of Louisiana, by which Mr. Pinchback was elected, was recognized as the legisiature of that State not only by the State courts but by the Executive of the nation, and also by the national House of Representatives, by admitting to its member- ship persons claiming seats under certificates from Governor Kellogg; and inferentially by the Senate, in the adoption of a resolution recognizing Kellogg as the governor of the State. In view of these judicial, executive, and legislative recognitions of the Kel- logg legislature, and of the fact that the Senate, after three years of discussion and con- sideration, was so evenly divided on the ultimate question as to Mr. Pinchback’s right to a seat, it would seem difficult to imagine a stronger case of reasonable cause than that moving Mr Pinchback to make claim to a seat, and to persevere as he did in that claim for over three years. 566 SENATE ELECTION CASES. Your committee, therefore, in view of the precedents and the facts of this case, report the following resolution and recommend its adoption: Resolved, That P. B. 8. Pinchback, late contestant for a seat in the Senate froma the State of Louisiana, be allowed an amount equal to the compensation and mileage of a Senator from the beginning of the term for which he was a contestant up to the period of the determination of the contest by the Senate. SATURDAY, July 1, 1876. The Senate proceeded to the consideration of the resolution to pay P. B. 8. Pinchback, late a contestant for a seat in the Senate from the State of Louisiana; and, 3 On motion by Mr. Sargent, the Senate proceeded to the consideration of executive business. [The debate is found on pages 4319-4323 of the Congressional Record, vol. iv, part 5.] MonpaAy, July 3, 1876. The Senate resumed, &c. [The debate is found on pages 4368-4372 of the Congressional Record, vol. iv, part 5.] WEDNESDAY, July 5, 1876. On motion by Mr. Morton, the Senate resumed the consideration of the resolution to pay P. B.S. Pinchback, late a contestant for a seat in the Senate from the State of Lou- isiana; and, On motion by Mr. Merrimon to amend the resolution by striking out all after the word ‘‘resolved,’’ and in lieu thereof inserting the following: ‘‘That the sum of $5,000 be allowed to P. B. S. Pinchback to pay the reasonable ex- penses incurred by him as contestant for a seat in the Senate as a Senator from the State of Louisiana,’’ After debate, It was determined in the negative—yeas 10, nays 31. On motion by Mr. Merrimon, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Cockrell, Davis, Jones of Florida, Kelly, McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. Those who voted in the negative are Messrs. Alcorn, Allison, Anthony, Bruce, Cameron of Wisconsin, Conkling, Cragin, Dawes, Dennis, Dorsey, Edmunds, Ferry, Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Logan, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Paddock, Sherman, Spencer, Wadleigh, West, Win- dom, and Wright. So the amendment was not agreed to. ‘ On motion by Mr. Edmunds to amend the resolution by inserting at the end thereof the words: ‘‘Resolved, That in cases of disputed claims to seats in the Senate hereafter arising, no other or greater allowance shall be made to a defeated claimant than in such case shall seem to the Senate just; ‘Resolved, That in no case shall any pay be allowed to a Senator to begin earlier than the date of his election or appointment,’’ It was determined in the affirmative. On motion by Mr. Spencer to amend the resolution by striking out all after the word ‘‘ Louisiana,’’ as reported by the committee, and inserting: ‘‘and Francis W. Sykes, late a contestant for a seat in the Senate as a Senator from the State of Alabama, be each allowed an amount equal to the pay and mileage of a Senator from the beginning of the term for which they were respectively contestants up to the period of the determination of the respective contests by the Senate,’’ it was determined in the affirmative. On motion by Mr. Mitchell to amend the resolution by inserting at the end of thefirst clause, ‘‘and the amount required by this resolution to be paid out of the contingent fund of the Senate,’’ it was determined in the affirmative. On the question to agree to the resolution as amended, as follows: “Resolved, That P. B. 8. Pinchback, late contestant for a seat in the Senate from the State of Louisiana, and Francis W. Sykes, late a contestant for a seat in the Senate as a Senator from the State of Alabama, be each allowed an amount equal to the pay and mileage of a Senator from the beginning of the term for which they were respectively contestants up to the period of the determination of the respective contests by the Sen- ate; and the amount required by this resolution to be paid out of the contingent fund of the Senate; “‘Resolued, That in cases of disputed claims to seats in the Senate hereafter arising no THE LOUISIANA CASES, 1873-80. 567 other or greater allowance shall be made to a defeated claimant than in such case shall seem to the Senate just; ‘Resolved, That in no case shall any pay be allowed to a Senator to begin earlier than the date of his election or appointment, ?’ It was determined in the affirmative—yeas 27, nays 11. On motion by Mr. Mitchell, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Alcorn, Allison, Anthony, Bruce, Cam- eron of Wisconsin, Conkling, Cragin, Dawes, Ferry, Frelinghuysen, Harvey, Hitchcock, Howe, Logan, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Pad- dock, Sargent, Sherman, Spencer, Wadleigh, West, Windom, and Wright. Those who voted in the negative are Messrs. Cockrell, Davis, Gordon, Kelly, Key, McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. So the resolution was agreed to. [The debate is found on pages 4382-4400 of the Congressional Record, vol. iv, part 5.] SPOFFORD vs. KELLOGG (MANNING). Contest for seat for term beginning March 4, 1877. SATURDAY, January 20, 1877. Mr. Morton presented the credentials of William Pitt Kellogg, elected a Senator by the general assembly of the State of Louisiana for the term of six years commencing March 4, 1877. The credentials were read. [Special session of Senate, March, 1877.] Monpay, Mareh 5, 1877. Mr. William Pitt Kellogg, whose credentials were heretofore presented as a Senator from the State of Louisiana, having appeared to take the oaths of office, Mr. Bogy objected to the oaths of office being administered to Mr. Kellogg; Whereupon Mr. Anthony submitted the following resolution; which was considered by unanimous consent, and agreed to: “Resolved, That the credentials of Senators-elect in all disputed or contested cases lie upon the table until to-morrow.”’ [The debate is found on pages 1, 2 of the Congressional Record, vol. vi.] TUESDAY, March 6, 1877. Mr. Blaine submitted the following resolution for consideration: ‘Resolved, That the oaths prescribed by law be now administered by the Vice Presi- dent to William Pitt Kellogg, whose credentials as a Senator from the State of Louisiana were presented on the 20th of January, 1877.’’ On motion by Mr. Bayard to amend the resolution by striking out all after the word “‘resolved,’’ and in lieu thereof inserting ‘‘ the credentials of William Pitt Kellogg, claim- ing to be a Senator from the State of Louisiana, do now lie upon the table until the ap- pointment of a Committee on Privileges and Elections, to whom they can be referred,”’ Pending debate, On motion by Mr. Thurman (at 3 o’clock and 15 minutes p. m.), the Senate ad- journed. ; [The debate is found on pages 15, 16 of the Congressional Record, vol. vi.] WEDNESDAY, March 7, 1877. The Senate resumed the consideration of the resolution of Mr. Blaine; and Mr. Bayard having modified his said amendment, on the question to agree thereto, as follows, viz: Strike out all after the word ‘‘resolved,’’ and in lieu thereof insert ‘‘the credentials of William Pitt Kellogg, claiming to be a Senator from the State of Louisiana, do now lie upon the table until the appointment of & Committee on Privileges and Elec- tions, to whom they shall be referred,’’ After debate, It was determined in the affirmative—yeas 35, nays 29. On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen- ators present, « é Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Bogy, Booth, 568 SENATE ELECTION CASES. Burnside, Christiancy, Coke, Conkling, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Johnston, Jones of Florida,’ Jones of Nevada, Kernan, Lamar, McCreery, McDonald, McPherson, Maxey, Morrill, Randolpb, Ransom, Saulsbury, Thurman, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Blaine, Bruce, Cam- eron of Pennsylvania, Chaffee, Conover, Dawes, Dorsey, Hamlin, Hoar, Howe, Ingalls, Kirkwood, McMillan, Mitchell, Morton, Oglesby, Paddock, Patterson, Plumb, Rollins, Sargent, Saunders, Sharon, Sherman, Teller, Wadleigh, and Windom. So the amendment was agreed to. On the question to agree to the resolution as amended, as follows: ‘Resolved, That the credentials of William Pitt Kellogg, claiming to be a Senator from the State of Louisiana, do now lie upon the table until the appointment of a Com- mittee on Privileges and Elections, to whom they shall be referred,”’ It was determined in the affirmative—yeas 42, nays 21. 2 On motion by Mr. Blaine, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Anthony, Bailey, Bayard, Barnum, Beck, Bogy, Booth, Burnside, Christiancy, Conkling, Conover, Davis of Illinois, Davis ot West Virginia, Dawes, Dennis, Dorsey, Eaton, Garland, Gordon, Harris, Hereford, Hill, Hoar, Johnston, Jones of Florida, Jones of Nevada, Kernan, Lamar, McCreery, McDon- ald, McPherson, Maxey, Morrill, Paddock, Randolph, Ransom, Sargent, Saulsbury, Thur- man, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Blaine, Bruce, Cameron of Penn- sylvania, Chaffee, Hamlin, Ingalls, Kirkwood, McMillan, Mitchell, Morton, Oglesby, Patterson, Plumb, Rollins, Saunders, Sharon, Sherman, Teller, Wadleigh, and Windom. . So the resolution was agreed to. [The debate is found on pages 17-23 of the Congressional Record, vol. vi.] [First session of the Forty-fifth Congress. ] WEDNESDAY, October 17, 1877. Mr. Thurman presented the credentials of Henry M. Spofford, elected a Senator by a mama of the State of Louisiana for the term of six years commencing March , 1877. The credentials were read. Mr. Thurman then submitted the following resolution, and asked for its present con- sideration: “Resolved, That Henry M. Spofford, whose credentials as a Senator from the State of Louisiana have been this day read, be now sworn and admitted as such Senator.’’ Mr. Edmunds objected to the consideration of the said resolution this day, and raised the point of order that under the thirty-third rule of the Senate, which requires that all resolutions shall lie over one day for consideration, the resolution could not now be considered. The Vice-President overruled the point of order raised by Mr. Edmunds. and decided that under the seventh rule of the Senate the presentation of the credentials of a Sena- tor being a question of privilege, all questions and motions arising thereon were in ae at this time, and that the consideration of the resolution could now be proceeded with. On motion of Mr. Mitchell to amend the resolution by striking out all after the word ‘‘resolved,’’ and in lieu thereof inserting: ‘That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections,’’ After debate, Ordered, That the farther consideration of the said resolution be postponed to to- morrow. Mr. Edmunds submitted the following resolution for consideration: “Resolved, That the Committee on Privileges and Elections be discharged from the further consideration of the credentials of William Pitt Kellogg as a Senator from the State of Louisiana, now under its consideration.’ ‘. On motion by Mr. Thurman, the Senate proceeded to the consideration of executive usiness. . [The debate is found on pages 78-83-of the Congressional Record, vol. vi.] THURSDAY, October 18, 1877. The Senate proceeded to consider the resolution yesterday submitted by Mr. Thurman, THE LOUISIANA CASES, 1873-80. 569 to admit as M. Spofford to a seat in the Senate as a Senator from the State of Lou: isiana; an The question being on the amendment proposed by Mr. Mitchell, viz: Strike out all after the word ‘‘resolved,’’ and in lieu thereof insert the following: ‘That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections,”’ After debate, On the question to agree thereto, it was determined in the affirmative—yeas 36, nays 33, On motion by Mr. Edmunds, the yeas and days being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Anthony, Blaine, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter- son, Plumb, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. Those who voted in the negative are Messrs. Armstrong, Bailey, Barnum, Bayard, Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Grover, Harris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Maxey, Merrimon, Morgan, Randolph, Ransom, Saulsbury, Thurman, Wallace, Whyte, and Withers. So the amendment was agreed to. On motion by Mr. Whyte further to amend the resolution by adding thereto the words ‘‘and that said committee report thereon on or before the 1st day of November, 1877,” After debate, It was determined in the negative—yeas 31, nays 35. On motion by Mr. Whyte, the yeas and nays being desired by one-fifth of the Sen- ators present, ; Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Beck, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Grover, Har- ris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Maxey, Merrimon, Morgan, Randolph, Ransom, Saulsbury, Thurman, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Blaine, Booth, Bruce, Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter- son, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. So the amendment was not agreed to. On motion by Mr. Conkling to further amend the resolution by adding thereto the following: ‘‘and the said committee shall also consider and report upon the credentials of William Pitt Kellogg,’’ it was determined in the affirmative; and The resolution as amended was then agreed to, as follows: “ Resolved, That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections; and the said committee shall also consider and report upon the credentials of William Pitt Kellogg.’’ The Sonate proceeded to consider the resolution yesterday submitted by Mr. Edmunds to discharge the Committee on Privileges and Elections from the further consideration of the credentials of William Pitt Kellogg; and Mr. Edmunds withdrew the said resolution. [The debate is found on pages 99-108 of the Congressional Record, vol. vi.] THURSDAY, October 25, 1877. Mr. Mitchell submitted the following resolution; which was considered by unanimous consent, and agreed to: | “ Resolved, That the Committee on Privileges and Elections in the contested cases of William Pitt Kellogg and Henry M. Spofford, claiming seats as Senators from the State of Louisiana, and whose credentials have been referred to such committee, be author- ized to send for persons and papers and administer oaths with a view of enabling said committee to determine and report upon the title, respectively, on the merits of each of said contestants to a seat in the Senate.’’ Monpay, November 26, 1877. Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were re- ferred the credentials of William Pitt Kellogg and the credentials of Henry M. Spofford, 570 SENATE ELECTION CASES. claiming seats as Senators from the State of Louisiana, submitted a report (No. 16) thereon, accompanied by the following resolution: “* Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully en- titled to a seat in the Senate of the United States from the State of Louisiana for the term of six years commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath. “‘ Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States.’’ Mr. Merrimon asked and obtained leave of the Senate to submit the views of a mi- nority of the Committee on Privileges and Elections on the credentials of William Pitt Kellogg and the credentials of Henry M. Spofford; which were ordered to be printed to accompany the report of the committee. BEPORT OF COMMITTEE.* [The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.} IN THE SENATE OF THE UNITED STATES. NOVEMBER 26, 1877.—Ordered to be printed. Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the follow- ing report: ha Comniittes on Privileges and Elections, to whom were referred the credentials of William Pitt Kellogg and the credentials of Henry M. Spofford, for the same seat in the Senate of the United States, ask leave to submit the following report: Mr. Kellogg..claims to have been elected on the 10th day of January, 1877. Mr. Spofford claims to have been elected on the 24th of April, 1877. In an inquiry into these cases upon their merits, the first question which arises is, whether the body which elected Mr. Kellogg was the lawful legislature of Louisiana at the time of such election. There was in said State on the 6th of November, 1876, an election for governor, lieu- tenant-governor, and members of the general assembly. The statements of the votes cast at such election were required by law to be sent to a board of returning officers for all elections in the State. Said returning officers were by law authorized and required to ascertain, return, and certify the election of members of the general assembly. No . other tribunal was clothed with that power orduty. They were required to report their decisions to the secretary of state, and it was by law provided that the secretary of state should transmit to the clerk of the house of representatives and secretary of the senate of the last general assembly a list of the names of such persons as, according to the decisions of the returning officers, were elected to either branch of the general assembly. It was the duty of the said clerk and secretary to place the names of such persons so furnished upon the roll of the house and senate, respectively, and those representatives and senators whose names were so placed by the clerk and secretary, and none others, were competent to organize the house of representatives or senate. The secretary of state, in obedience to the statute, transmitted to the clerk of the former house and secretary of the senate a list of the names of persons by the said return- ing officers decided to have been elected to either branch of the general assembly, and from the list thus furnished the clerk and secretary organized each house of the State legislature on the 1st day of January, 1877. By the constitution of Louisiana the house of representatives is composed of one hun- dred and twenty members and the senate of thirty-six members. There is no doubt that sixty-one members of the house constitute a quorum of that body, and that nineteen members constitute a quorum of the senate. There were present at the organization, and took part in the proceedings, eight senators holding over, and eleven newly elected— nineteen in all—having the certificates of said returning officers, which was a quorum, and sixty-eight representatives, thus declared to have been elected, being seven over a quorum. After such organization the members of the two houses assembled in joint con- vention on the 10th day of January, 1877, to elect a Senator of the United States. Upon reading the journal of each house it was found that no election of Senator had been made the day before. The roll of each house was called, and it was found there were present in the joint convention seventeen senators and sixty-six representatives, they composing a majority of all the membersof the general assembly of the State. Nom- inations were then made for Senator, and a viva voce vote was had, and William Pitt Kellogg received the votes of seventeen senators and sixty-six representatives, and was declared by the president of the senate (the presiding officer of the joint convention) to * Taken from Senate Reports, 1st sess. 45th Cong., No. 16. THE LOUISIANA CASES, 1873-80. 571 have received a majority of all the votes of the general assembly, and to have been duly elected a Senator of the United States for the term of six years beginning on the 4th day of March, 1877. Your committee find that said election was held strictly in accordance with the act of Congress of 1866 to regulate the times and manner of holding elections for Senator. The credentials of Mr. Kellogg are signed by Stephen B. Packard as governor of the State of Louisiana, and bear date the 11th day of January, 1877. It appears to your committee that Mr. Packard was on that day the lawful governor of the State of Louisiana. By the constitution of Louisiana the returning officers are required to seal up and transmit the returns of the election of governor and lieutenant- governor to the secretary of state, who shall deliver them to the speaker of the house of ao on the second day of the session of the general assembly then to be olden. On the second day of the session the legislature proceeded to count the votes for gov- ernor and lieutenant-governor, there being then present twenty-one senators and sixty- eight representatives, two over a quorum of the senate and seven over a quorum of the house. The committee appointed by the two houses to make and canvass the votes for governor and lieutenant-governor reported that Stephen B. Packard was elected governor and C. C. Antoine lieutenant-governor of said State, and that by the following vote: For governor: Stephen B; Packard.....22-. :2ccatacscecescesecreecceseseceesiseccecesicend 7A, 624 Francis 2D. Nichollsc3 5:5: csccas soScssencccc cancoseces seeeecevence totewe wes 71, 198 For lieutenant-governor: Cy C. Antoine 26 ee20 3 eee a ee eee asin eee ee eerie 74, 669 Tug Ay Wiallbass 220 Se Benes gees. eee aes e Se een a cus eae 71, 093 Upon the facts hereinbefore stated your committee are of the opinion— First, that the returning officers of Louisiana were a lawful tribunal, solely authorized and agated to ascertain, return, and certify to the election of members of the general assembly. Second, that those, and only those, who held certificates of election from said return- ing officers were entitled to seats in the general assembly at the organization thereof. Third, that the body which first organized with a quorum of the members in each branch thereof, having such certificates, and which was duly recognized by the lawful gov- ernor of said State, was the lawful legislature. The proof before your committee seems conclusive that at the time the legislature which elected Kellogg was organized there were present a quorum of each house thereof then lawfully entitled to seats therein; that at the time of his election there were present a quorum of the general assembly then lawfully entitled to seats therein; all of whom voted for said Kellogg, and that said legislature was recognized by the lawful governor of said State. It was, however, contended by Mr. Spofford that it was the duty of your committee to go behind the certificates of the returning officers and investigate the elec- tions of individual members of the general assembly. At his request your committee did investigate such elections and find the following facts: Of the lawful election of fifty-seven members of the house of representatives which aided in electing Mr. Kellogg there is no dispute whatever, and they now sit in the Nicholls house, which took part in the election of Mr. Spofford. Three more of the members of the Packard house, from the parish of Orleans, were until recently admitted on all hands to have had a majority of the votes cast, and your committee find that they were lawfully elected. Besides these sixty members of the house, there were eleven more whose election is disputed by Mr. Spofford upon the ground that they did not receive a majority of the votes cast. Of the twenty-one members of the senate which participated in the election of Mr. Kellogg, there were sixteen whose right to hold their seats is ad- mitted. The election of three more from the twelfth, eighteenth, and twenty-second senatorial districts is disputed upon the ground that they did not receive a majority of the votes cast. Two more, Baker and Kelso, were not declared elected by the returning board, but were seated by a vote of the senate acting under its constitutional right to judge of the election of its own members. Complaint is made by Mr. Spofford that one Steven, a lawful senator, was taken against his will into the senate and detained there against his will for the purpose of making a quorum. Your committee believe there is no good reason for such complaint. If the senate had organized with a quorum of members lawfully entitled to seats therein, as was the case, it had the undoubted right to compel the attendance of absent members. The senators and members whose title to seats is disputed on the ground that they did not receive a majority of the votes cast were those declared elected by the returning 572 SENATE ELECTION CASES. board on account of the rejection of the votes cast at certain polls in the parishes of East Baton Rouge, De Soto, West Feliciana, La Fayette, Morehouse, Ouachita, and Webster, in the twelfth senatorial district, composed of the parishes of East Feliciana, West Feli- ciana, and Point Coupée; the eighteenth senatorial district, composed of the parishes of Ouachita and Caldwell; and the twenty-second senatorial district, composed of the par- ishes of Natchitoches, De Soto, Red River, and Sabine. There were no votes rejected in the parishes of Sabine, Point Coupée, and Red River. A comparatively small number of the votes were rejected on account of the obvious ille- galities, informalities, and misconduct of the election officers, and there is little complaint > on account of the rejection of such votes. The rest were rejected on account of violence and intimidation which prevented a fair election. The evidence of such intimidation is overwhelming and irrefutable. Many of the Republican leaders were killed, others were tortured, others driven into exile. Companies of armed men paraded the parishes by night, carrying terror wherever they went. Your committee has no space to recountor refer toa tithe of the horrible outrages per- petrated to prevent the Republicans from exercising the free right of suffrage. They were evidently perpetrated in localities where the result of the election would thereby be most strongly affected, and they had their intended effect. But for these numerous and horrible crimes, your committee believe that the candidates upon the State and National Republican tickets would have been elected beyond dispute, and that the gen- eral assembly would have been overwhelmingly Republican. In forty parishes, where it is admitted on all hands the election was fair and peace- able, the colored registration in 1876 numbered 87,999, the white registration 72,034, showing a colored majority of 15,965. Those forty parishes returned 65,747 Republican votes and 59,392 Democratic votes, a Republican majority of 6,353 votes. In the seven- teen terrorized parishes the colored registration was 27,269, the white registration was 20,320, a colored majority of 6,949, almost half as large as the registered colored ma- jority in all the rest of the State. But the vote in those seventeen parishes as cast showed but 10,970 Republicans and 21,123 Democrats. Thus those seventeen parishes, with a colored majority of nearly 7,000 registered, cast a Democratic majority of 10,153. In the ten parishes of East Baton Rouge, Caldwell, De Soto, East Feliciana, West Feli- ciana, La Fayette, Morehouse, Natchitoches, Ouachita, and Webster, in which (on account of the rejection of polls by the returning board) the-eleven disputed members of the house and three disputed members of the senate were declared elected by the returning officers, there were in 1876 19,174 colored voters and 11,212 white voters registered, being % colored majority of 7,962. In the same parishes there were cast 14,510 Democratic and 8,489 Republican votes, being a Democratic majority of 6,021. In the strong Republican parish of East Felici- ana, where leading Republicans had been terrorized into procuring the appointment as sheriff of a Democratic leader, whose career had been that of a brigand, upon his prom- ise of peace and conciliation, only three Republicans dared to vote. There is no evidence to show and it is not pretended that the same arguments and methods of persuasion were not employed by the Democrats in the forty parishes above referred to as were used in the seventeen terrorized parishes; but in the seventeen parishes numerous and frightful crimes were deliberately perpetrated to carry the election; in the others not. The difference in the vote shows too strongly to be affected by argument or clouds of perjured witnesses the perpetration of such outrages and their effect. It was contended by Mr. Spofford before your committee that the returning officers were guilty of fraud in rejecting the polls hereinbefore referred to, and that in so doing they exceeded the authority conferred upon them by law. Your committee find, how- ever, that the ceturning board in so doing acted not fraudulently but in good faith; and that in theis construction of the law under which they acted they were sustained by precedents and by able legal opinions. They were charged by Mr. Spofford with having committed forgery in altering the statement of votes from the parishof Vernon. Testimony in reference to that matter was (aken at great length by the Field and Morrison committees of the House and the Howe cominittee of the Senate. It clearly and conclusively shows, in the opinion of your committee, that the returning officers had no motive to commit such crime; that they before had published the true statement of the vote, and must therefore have known that if such a crime was committed it would be immediately detected; and that the real, the only criminal, was the witness by whose hand the alterations were made, who confessed that he did not know the true vote had been published, who had the strongest personal motives to commit the crime, and who testified with the understanding that he should have a good office if Mr. Tilden was elected. But the law is clear that, even had the returning officers been guilty of fraud, or had mistakenly exceeded their authority, it was the right and the duty of the persons returned by them as elected to take their seats in the general assembly. The law on this point THE LOUISIANA CASES, 1873-80. 573 is thus laid down by Cushing in his Law and Practice of Legislative Assemblies, page 52, section 141: ‘It remains to be observed, in conclusion, that the proceedings of these [returning] officers, from the necessity of the case, are, in the first instance, uncontrollable by any other authority whatever; so that if, on the one hand, notwithstanding an election has been effected, the returning officers refuse or neglect to make the proper return, the party thereby injured is without remedy or redress until the assembly to which he is chosen has examined his case and adjudged him to be duly elected; and, on the other hand, if the returning officers make a return when no election has in fact taken place, or of one who is not eligible, the person returned will not only be entitled, but it is his duty, to assume and discharge the functions of a2 member until his return and election are ad- judged void.”’ A strong case in point occurred in the State of New Hampshire in 1875. The governor and council of that State, whose duty it was to count the votes for and issue certificates of election to State senators, rejected and threw out 3,771 votes, being all those cast and returned for Natt Head, a candidate for senator, upon the ground that the name by which he had been universally known, by which he had been commissioned adjutant- general of the State, and which he had regarded and used as his real name during many years of business and political life, was not his full Christian name. They also threw out and rejected 46 votes cast for Author Dearing, also a candidate for senator, on the ground that heiwas not a resident of the State. By such action the governor and council were enabled to give certificates of election to James Priest and John Proctor, thus giving the Democrats the control of the senate. Application was made to the supreme court of the State, as provided for by the constitution, for the opinion of said court upon the effect of such action. In their opinion, which may be found in the fifty-sixth volume of New Hampshire Reports, the court*say: . ‘‘ By this action of the governor and council, whether it be regarded as within or ex- ceeding their constitutional powers, Messrs. Priest and Proctor received the usual cre- dentials, which authorized them to assemble with the other ten senators and take the oath of office; and they thereupon became senators, subject to the constitutional author- ity of the senate as final judges of the qualifications and elections of its members.’’ When your committee decided to go behind the certificates of the returning officers, and to seek the real merits of the case in the thousands of pages of printed testimony taken for the use of the Senate and House, Mr. Spofford contended that your committee should simply ascertain the number of votes deposited in the ballot-boxes at the election. Your committee believe, however, that if their inquiry is to extend beyond the question as to who were the lawful governor of Louisiana and the lawful members of the general assembly, it should go far enough to ascertain how far the freedom of election was im- paired by intimidation, violence, and crime. The law on this subject is thus stated by Cushing in his Law and Practice of Legislative Assemblies, pages 67, 68, section 181: “The great principle, which lies at the foundation of all elective governments, and is essential indeed to the very idea of election, is that the electors shall be free in the giv- ing of their suffrages. This principle was declared by the English Parliament, with regard to elections in general, in a statute of Edward I, and with regard to elections of members of Parliament, in the Declaration of Rights. The same principle is asserted or implied in the constitutions of all the States of the Union. Freedom of election is vio- lated by external violence, by which the electors are constrained, or by bribery, by which their will is corrupted; and in all cases where the electors are prevented, in either of these ways, from the free exercise of their right, the election will be void without reference to the number of votes thereby affected.’’ The evidence clearly proves, and your committee believe, that by intimidation, vio- lence, and crime freedom of election was utterly destroyed at those polls in the ten par- ishes heretofore referred to, whose votes were rejected by the returning officers; that in throwing out such polls and declaring the Republican candidates elected, the returning officers did that which they believed to be legal, and which was really equitable and just, and what the two houses of the general assembly would have been bound in law to do with the facts before them. They believe, therefore, that the members by whose votes the general assembly was organized, and a sufficient number of the members by whose votes Mr. Kellogg was elected, were not only lawfully but equitably entitled to their seats. It is contended by Mr. Spofford that the legislature which elected Mr. Kellogg and the governor who signed his credentials have vanished from political existence, and ceased to have any authority in the State of Louisiana, and that, therefore, if for no other reason, his own election is valid. Your committee find that atand after the organization of the legislature which elected Mr. Kellogg an overwhelming array of armed and organ- ized military force was used to destroy and crush out the lawful State government of Louisiana. By it the courts were overthrown and annihilated, and under its constantly 574 SENATE ELECTION CASES. impending menace the lawful legislature gradually melted away, and its terrorized mem-~- bers sought safety in the so-called Nicholls legislature or abdicated their rights. By such, and perhaps other equally illegal means, the so-called Nicholls legislature at length came to contain an undisputed majority of the members lawfully elected to the general assembly; and on the 24th day of April that legislature chose Mr. Spofford, the contestant, a Senator of the United States. Your committee are of the opinion that his claim is not well founded. Until and after the election of Mr. Kellogg, Governor Pack- ard, and what is known as his legislature, were de facto and de jure the government of Louisiana. Upon that legislature devolved the duty of electing a Senator of the United States. That duty was performed by them in the election of Mr. Kellogg. No subse- quent events, especially successful revolution, through treasonable force, could undo what had been lawfullydone. The doctrine contended for by Mr. Spofford, if established, would render insecure all political vested rights. It would offer a premium to overthrow by force the result of every sharply contested election, and at no distant day reduce this country to the unhappy condition of those wretched communities which are continually a prey to disorder and civil war. Your committee therefore report the following resolutions, and recommend their pas- sage: Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully entitled to a seat in the Senate of the United States from the State of Louisiana for the term of six years, commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath. . Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United tates. VIEWS OF THE MINORITY. On the 18th day of October last the Senate referred to the Committee on Privileges and Elections a resolution, of which the following is a copy: ‘* Resolved, That the credentials of Henry M. Spofford, claiming to be a Senator from the State of Louisiana, be referred to the Committee on Privileges and Elections; and the said committee shall also consider and report upon the credentials of William Pitt Kellogg.’’ That committee having had the subject embraced by that resolution under consider- ation, a majority of the committee have agreed to a report in favor of seating Mr. Kel- logg as Senator. The undersigned, members of the committee, dd not concur in that report and beg leave to submit to the Senate some of the reasons which impel them to dissent. An election was held in the State of Louisiana on the 7th day of November, A. D. 1876, for a governor and members of the legislature. Francis T. Nicholls and Stephen B. Packard each claimed that he was elected governor at that election, and on and after the 8th day of January last each claimed to be the governor of that State. Two rival bodies of men composed of persons claiming to have been elected at that election were organized on the 1st day of January last in the city of New Orleans, and each claimed to be the lawful legislature of the State, one of these bodies commonly called ‘‘the Nicholls legislature’? and the other ‘‘ the Packard legislature.’’? This conflict of claim, aggravated by the recollections of like repeated contests in the past, produced general angry commotions among the contestants and the people which seriously threatened the peace of society and a state of anarchy. Detachments of the Army ofthe United States were employed for many weeks to preserve the peace and prevent bloodshed. It will not be denied that the people of that State of all classes and conditions were profoundly and fearfully agitated. At length this conflict and contest of claim was peacefully settled, and Mr. Nicholls was and ever since that time has acted and been recognized as governor by all the co- ordinate branches of the State government and the people generally, and also by the President and other authorities of the United States having occasion to recognize and communicate with the governor of that State. And what has been designated as ‘‘ the Nicholls legislature ’’ has likewise been so recognized as the lawful and only legislature, and its acts purporting to be statutes, passed since its first organization, have been reg- ularly published and recognized as laws of that State by all departments of the State government and the people. Throughout the State the so-called ‘‘ Packard legislature” has entirely disappeared, and most of its members—all those lawfully elected—have taken seats in the lawful legislature. This settlement has happily brought peace, order, and wholesome government out of fearful strife and disorder. It seems to be gratefully accepted by the great mass of the people of that State of both colors, and the few mal- contents, if any, are moved by considerations of personal interest. After the settlement referred to, ‘‘ the Nicholls legislature ’’ elected Henry M. Spofford to be a Senator in the United States Senate, ‘‘the Packard legislature’’ having a few THE LOUISIANA CASES, 1873-80. 575 days after its pretended organization, on the —— day of January last, pending the con- test, and in the midst of disorder, purported to elect Mr. Kellogg Senator. Indeed, the facts and circumstances point strongly to the conclusion that the main if not the only purpose of “‘the Packard legislature’’ organization was to elect Mr. Kellogg Senator. But be this as it may, the body that undertook to elect him had no legal existence, as will hereafter appear. He purported to be elected pending a heated contest as to its legality, and since that time it has abandoned its organization and claim, and most of as peter went into and became part of ‘‘ the Nicholls legislature,’’ and voted for Mt. Spofford. Looking to the permanent peace and well-being of the people of Louisiana, after many years of discord and strife which have agitated the people of the whole Union, as well as the strict right, the undersigned deemed it important in the highest degree that the Senate should accept that settlement, made by the authorities and accepted by the peo- ple, as a finality; and, looking to that end, Mr. Hill in committee offered a resolution in these words: ‘The controversies heretofore existing in the State of Louisiana as to which of two rival bodies was the legislature of that State and as to which of two rival claimants was the governor of said State having been settled by the State itself’ since the last adjourn- ment of the Senate, : ‘Resolved, That the Senate do recognize and accept said settlement as final.’’ This resolution was rejected by the unanimous vote of the Republicans of the commit- tee, while it received only the votes of the undersigned. We solemnly protest against re- opening political controversies in Louisiana, and sincerely deplore the occasion for doing so. Let the grave responsibility rest with those who have insisted upon doing so. Themajority of the committee having thus determined toignore the settlement referred to, it was then deemed necessary to examine fully and fairly the real merits of the claims respectively of Messrs. Spofford and Kellogg; and with that view Mr. Merrimon in com- mittee offered a resolution in these words: ‘Resolved, That the committee proceed to examine and ascertain the substantial merits of the respective claims of Hon. W. P. Kellogg and Hon. H. M. Spofford to a seat in the Senate as a Senator from the State of Louisiana, and to this end to inquire particularly which, or whether either, of the two rival bodies claiming to be the legislature of said State, in January and April last, was the true and lawful legislature of said State.’’ This resolution was unanimously adopted after hearing the contestants at length, Mr. Kellogg being heard by his counsel, Mr. Shellabarger. The contestants were each re- quested to indicate what testimony he desired to produce, and after debate they were re- quested to confer and see what state of facts they could agree upon touching controverted material points at issue. Statements weresubmitted to Mr. Kellogg touching the result of the election in parishes indicated, and Mr. Kellogg made a statement in that respect in reply. These statements were received as evidence, and it was further agreed to receive the testimony, or so much thereof as may be pertinent, taken by Congressional commit- tees commonly known as the ‘‘Howe committee,’’ the ‘‘Morrison committee,’’ the “Sherman committee,’’ and the ‘‘Field committee,’’ touching Louisiana affairs. Mr. Spofford did not object to the reception of this testimony, but he strenuously insisted on being allowed to take testimony in support of the several allegations specified by him, as follows: He offered testimony to prove— ‘1, That the facts relative to the election of Tremoulet, Cressy, and Rolle, from the seventh representative district of New Orleans, were sustantially as set forth in the statement read by H. M. Spofford in his argument before this committee on the 24th October, 1877. ; ‘2. That the composition, votes for Senator, and political proclivities of the legislature on the 24th April, 1877, when H. M. Spofford was elected Senator, were substantially as set forth in the aforesaid argument. “<3. That by the actual returns or statements as made in duplicate by the supervisors of registration (and assistant supervisors), with their appointees, the commissioners of election, and sent, one set to the clerk of the district court of each parish in the county and to the secretary of state in the city, and the other set to the returning board (so called), showed a majority of votes actually cast throughout the State of about 8,000 votes for Nicholls and Wiltz over Packard and Antoine for the offices of governor and lieutenant-governor in the election that took place in Louisiana November 7, 1876. ‘¢4, Besides these specific violations of the constitution and of the law under which they pretended to act, I charge that the conduct of the returning officers in suppressing polls and changing the result of the constitutional returns was clandestine, collusive, tyrannical, and unjust; that the real work of conducting an election under pretext of compiling votes was proceeded with in a secret chamber by a corps of partisan clerks, while the occasional open sessions of the board were side-shows, devised to screen what was going on within; that arbitrary rules of evidence were established for pretended con- 576 SENATE ELECTION CASES. tests, and changed so often and abruptly that no fair trial could be had or was had before the board; that illegal complaints were constantly received and illegal evidence admit- ted for the purpose of setting aside polls that were in the way of such candidates as the board desired to elect; and that Mr. Kellogg himself, then governor, joined in making illegal complaints and inducing the board to consider them. ‘“*5, I am informed and so charge that the returns from Vernon Parish, after they came into possession of the returning officers, and while they were under their control, were fraudulently altered by a change of figures, tantamount to a forgery of a public record; that the board knew what the figures upon those returns were before their alteration, and yet after the alteration promulgated the results of said forgery as the true returns; that by such fraudulent alteration E. E. Smart, candidate for representative in the State assem- bly, who had in fact and according to the returns as they first came to the board defeated his competitor, Brown, was left behind, and Brown, the defeated candidate, falsely de- clared elected; and that said Brown took his seat in the Packard house, and figures on the journal as present on the 2d of January, 1877, when there was a pretended count of votes for governor and lieutenant-governor in joint assembly, and perhaps on one or two other occasions, but that he afterward abandoned that body and went home, acknowledg- ing that he never had been elected.”’ We are of opinion that the testimony so proposed by Mr. Spofford is material, and ought, in justice to him and the Senate, to have been received. Besides, it cannot be truly said that the respective claims of the contestants have been decided upon their ‘‘substan- tial merits’’ when one of them is not allowed to produce material testimony which he offers and is anxious te produce. And it may be that a decision made by the Senate now, without fair opportunity to produce such testimony, may be reviewed and reversed at some future time. It is well to put an end to controversy now by allowing both the contestants the fullest and fairest opportunity to produce all material testimony. We think, therefore, that the whole matter ought to be recommitted to the committee, to the end the proposed testimony may be taken. The following provisions of the constitution of Louisiana are material to a proper understanding of the points raised in the contest now under consideration: “ArT. 15. The legislative power of the State shall be vested in two distinct branches, the one to be styled the house of represenatives, the other the senate, and both the gen- eral assembly of the State of Louisiana. “ART, 16. The members of the house of representatives shall continue in office for two years from the day of the closing of the general elections. “ART. 17. Representatives shall be chosen on the first Monday in November every two years, and the election shal] be completed in one day. The general assembly shall meet annually on the first Monday in January, unless a different day be appointed by law, and their sessions shall be held at the seat of government. “Art. 19. Elections for members of the general assembly shall be held at the several election precincts established by law. “ART. 27. The members of the Senate shall be elected for the term of four years; and when assembled the senate shall have power to choose its own officers except as herein- after provided. “ART. 31. At the first session of the general assembly after this constitution goes into effect the senators shall be divided equally by lot into two classes; the seats of the sen- ators of the first class to be vacated at the expiration of the term of the first house of representatives; those of the second class at the expiration of the term of the second house of representatives, so that one-half shall be chosen every two years successively. When a district shall have elected two senators their respective terms of office shall be determined by lot between themselves. “Arr. 33. Not less than a majority of the members of each house of the general as- sembly shall form a quorum to transact business; but a smaller number may adjourn from day to day, and shall have full power to compel the attendance of absent members. “Art. 34. Each house of the general assembly shall judge of the qualifications, elec- tion, and returns of its members; but a contested election shall be determined in such manner as may be prescribed by law. “Art. 46, Returns of all elections for members of the general assembly shall be made to the secretary of state. “ART. 48. The supreme executive power of the State shall be vested in a chief magis- trate, who shall be styled the governor of the State of Louisiana. He shall hold his office during the term of four years, and, together with the lieutenant-governor, chosen for the same term, be elected as follows: The qualified electors for representatives shall vote for governor and lieutenant-governor at the time and place for voting for represent- atives; the returns of every election shall be sealed up and transmitted by the proper returning officer to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then THE LOUISIANA CASES, 1873-80. 577 to be holden. The members of the general assembly shall meet in the house of repre- sentatives to examine and count the votes. ‘The person having the greatest number of votes for governor shall be declared duly elected; but in case of a tie vote between two or more candidates one of them shall immediately be chosen governor by joint vote of the members of the general assembly. The person having the greatest number of votes polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie vote between two or more candidates, one of them shall be immediately chosen lieutenant- governor by joint vote of the members of the general assembly. “ART. 51. The governor shall enter on the discharge of his duties on the second Mon- day in January next ensuing his election, and shall continue in office until the Monday next succeeding the day that his successor shall be declared duly elected, and shall have taken the oath or affirmation required by the constitution. ‘“‘AnT. 73, The judicial power shall be vested in a supreme court, in district courts, in parish courts, and in justices of the peace. “ART. 94. No judicial powers, except as committing-magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities; and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police regulations of towns and cities in the State. In any case where such officers shall assume jurisdiction over other matters than those which may arise under police regulations, or under their jurisdiction, as committing-magistrates, they shall be liable to an action of damages in favor of the party injured, or his heirs; and a verdict in favor of the party injured shall ipso facto operate a vacation of the office of said officer. ‘ART. 103. The privilege of free suffrage shall be supported by laws regulating elec- tions and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult, or other improper practice. “ART. 107. In all elections by the people the vote shall be taken by ballot; and in all elections by the senate and house of representatives, jointly or separately, the vote shall be given viva voce. “ART. 133. No judicial powers shall be exercised by clerks of courts.” And the following sections from the statute of that State approved November 20, 1872, commonly called the election law: ““SECTION 1. Be it enacted by the senate and house of representatives of the State of Louisiana in general assembly convened, That all elections for State, parish, and judicial officers, members of the general assembly, and for members of Congress shall be held on the 1st Monday in November, and said election shall be styled the general election. They shall be held in the manner and form and subject to the regulations hereinafter prescribed, and in no other. : ‘Suc. 2. Be it further enacted, &c., That five persons, to be elected by the senate from all political parties, shall be the returning officers for all elections in the State, a majority of whom shall constitute a quorum and have power to make the returns of all elections. In case of any vacancy by death, resignation, or otherwise, by either of the board, then the vacancy shall be filled by the residue of the board of returning officers. The re- turning officers shall after each election, before entering upon their duties, take and subscribe to the following oath before a judge of the supreme or any district court: <¢T A. B., do solemnly swear (or affirm) that I will faithfully and diligently pertorm the duties of a returning officer as prescribed by law; that I will carefully and hon- estly canvass and compile the statements of the votes, and make a true and correct return of the election: So help me God.’ . - ‘Within ten days after the closing of the election said returning officers shall meet in New Orleans to canvass and compile the statement of votes made by the commissioners of election, and make returns of the election to the secretary of state. They shall con- tinue in session until such returns have been compiled. The presiding officer shall, at such meeting, open, in the presence of the said returning officers, the statements of the commissioners of election, and the said returning officers shall, from said statements, canvass and compile the returns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public proclamation, by printing in the official journal and such other newspapers as they may deem proper, declaring the names ofall persons and officers voted for, the number of votes for each person, and the names of the persons who have been duly and lawfully elected. The return of the election thus made and promulgated shall be prima facie evidence in all courts of justice and before all civil officers, until set aside after contest according to law, of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected. The governor shall, within thirty days thereafter, issue commissions to all officers thus declared elected, who are required by law to be commissioned. . bene ‘“Sno. 3. Be it further enacted, &c., That in such canvass and compilation the return- S. Doc. 11——37 578 SENATE ELECTION CASES. ing officers shall observe the following order: They shall compile first the statements from all polls or voting places at which there shall have been a fair, free, and peace- able registration and election. Whenever from any poll or voting place there shall be received the statement of any supervisor of registration or commissioner of election, in form as required by section 26 of this act, on affidavit of three or more citizens, of any riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, which prevented or tended to prevent a fair, free, and peaceable vote of all qualified electors entitled to vote at such poll or voting place, such returning officers shall not canvass, count, or compile the statement of votes from such poll or voting places until the statements from all other polls or voting places shall have been canvassed and compiled. The returning officers shall then proceed to investigate the statements of riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences at any such poll or voting place; and if from the evidence of such statement they shall be convinced that such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences did not materially interfere with the purity and freedom of the election at such poll or voting place, or did not prevent a sufficient number of qualified voters thereat from registering or voting to materially change the result of the election, then, and not otherwise, said returning officers shall canvass and compile the vote of such poll or voting place with those previously canvassed and com- piled ; but if said returning officers shall not be fully satisfied thereof, it shall be their duty to examine further testimony in regard thereto, and to this end they shall have power to send for persons and papers. If, after such examination, the said returning officers shall be convinced that said riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences did materially interfere with the purity and freedom of the election at such poll or voting place, or did prevent a sufficient number of the qualified electors thereat from registering and voting to materially change the result of the election, then the said returning officers shall not canvass or compile the statement of the votes of such poll or voting place, but shall exclude it from their returns: Provided, That any person interested in said election by reason of being a candidate for office shall be allowed a hearing before said returning officers upon making application within the time allowed for the forwarding of the returns of said election. “Sno. 8. Be it further enacted, &c., That the election at each poll or voting place shall be presided over by three commissioners of election, residents of the parish for at least twelve months next preceding the day of election, who shall be selected from different political parties, and be of good standing in the party to which they belong, and who shall, before entering upon the discharge of their duties, take and subscribe the oath prescribed for State officers. Should only one of the commissioners appointed be pres- ent at the hour for opening the poll, he shall appoint another, and both together shall appoint a third ; and the commissioners so appointed shall take the oath and perform all the duties of commissioners of election in the same manner as if they had been ap- pointed as provided for regular appointment of commissioners by this act. Any one of the commissioners shall be authorized to administer the oath to the other commission- ers. The commissioners of election for the several wards in the city of New Orleans shall be appointed by the mayor and administrators of the city of New Orleans. “SEo. 13. Be it further enacted, éc., That it shall be the duty of the commissioners of election, at each poll or voting place, to keep a list of the names of the persons voting at such poll or voting place, which list shall be numbered from one to the end; and said list of voters, with their names and numbersas aforesaid, shall be signed and sworn to as correet by the commissioners, immediately on closing of the polls, and before leaving the place, and before opening the box. If no judge or justice of the peace, or other person authorized to administer such oath be present to do so, it may be administered by any voter. The votes shall be counted by the commissioners at each voting place, immedi- ately after closing the election and without moving the boxes from the place where the votes were received, and the counting must be done in the presence of any bystander or citizen who may be present. Tally-lists shall be kept of the count, and after the count the ballots counted shall be put back into the box and preserved until after the next term of the criminal or district court, as the case may be; and in the parishes, except Orleans, the commissioners of election, or any one of them selected for that purpose, shall carry the box and deliver it to the clerk of the district court, who shall preserve the same as above required; and in the parish of Orleans the box shall be delivered to the clerk of the first district court for the parish of Orleans, and be kept by him as above _ ‘SHo. 26. Be it further enacted, d&c., That in any parish, precinct, ward, city, or town in which during the time of registration, or revision of registration, or on any day of election, there shall be any riot, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences, at any place within said parish, or at or near any poll or voting place, or place of registration or revision of registration, which riot, tumult, acts THE LOUISIANA CASES, 1873-80. 579 of violence, intimidation, and disturbance, bribery, or corrupt influences shall prevent, or tend to prevent, a fair, free, peaceable, and full vote of all the qualified electors of said parish, precinct, ward, city, or town, it shall be the duty of the commissioners of election, if such riot, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences occur on the day of election, or of the supervision of registration of the parish, if they occur during the time of registration, or revision of registration, to make in duplicate and under oath a clear and full statement of all the facts relating thereto and of the effect. produced by such riot, tumult, acts of violence, intimidation, and dis- turbances, bribery, or currupt influences in preventing a fair, free, peaceable, and full registration or election, and of the number of qualified voters deterred by such riots, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences from registering or voting, which statement shall also be corroborated under oath by three respectable citizens, qualified electors of the parish. When such statement is made by a commissioner of election or a supervisor of registration, he shall forward it in dupli- cate to the supervisor of registration of the parish, if in the city of New Orleans to the secretary of state, one copy of which, if made to the supervisor of registration, shall be forwarded by him to the returning officers provided for in section 2 of this act, when he makes the returns of election in his parish. His copy of said statement shall be so annexed to his returns of elections, by paste, wax, or some adhesive substance, that the same can be kept together, and the other copy the supervisor of registration shall deliver to the clerk of the court of his parish for the use of the district attorney. “Sre. 43. Be it further enacted, &c., That immediately upon the close of the polls on the day of election, the commissioners of the election at each poll or voting place shall proceed to count the votes, as provided in section 13 of this act, and after they shall have so counted the votes and made a list of the names of all the persons voted for, and the offices for which they were voted for, and the number of votes received by each, the num- ber of ballots contained in the box, and the number rejected, and the reasons therefor, duplicates of such lists shall be made out, signed and sworn to by the commissioners of election of each poll, and such duplicate lists shall be delivered, one to the supervisor of registration of the parish, and one to the clerk of the district court of the parish, and in the parish of Orleans to the secretary of state, by one or all such commissioners in per- son, within twenty-four hours after the closing of the polls. It shall be the duty of the supervisors of registration, within twenty-four hours after the receipt of all the returns for the different polling places, to consolidate such returns, to be certified as correct by the clerk of the district court, and forward the consolidated returns, with the originals received by him, to the returning officers provided for in section 2 of this act, the said report and returns to be inclosed in an envelope of strong paper or cloth, securely sealed, and forwarded by mail. Heshall forward a copy of any statement as to violence or dis- turbance, bribery or corruption, or other offenses specified in section 26 of this act, if any there be, together with all memoranda and tally-lists used in making the count, and statement of the votes. “Suc. 44, Be it further enacted, &c., That it shall be the duty of the secretary of state to transmit to the clerk of the house of representatives and the secretary of the senate of the last general assembly a list of the names of such persons as, according to the returns, shall have been elected to either branch of the general assembly; and it shall be the duty of the said clerk and secretary to place the names of the representatives and senators elect so furnished upon the roll of the house and of the senate, respectively; and those representatives and senators whose names are so placed by the clerk and secretary, re- spectively, in accordance with the foregoing provisions, and. none other, shall be compe- tent to organize the house of representatives or senate. Nothing in this act shall be construed to conflict with article 34 of the constitution of the State.’’ The senate branch of the legislature of Louisiana is composed of thirty-six senators, nineteen being a quorum; tle house branch is composed of one hundred and twenty members, sixty-one being a quorum. The election for governor and members of the legis- lature, styled the ‘‘general election,”’ is held biennially, on the first Monday in Novem- ber. . It will be observed that section 2, set forth above, of the statute regulating the man- ner of holding elections, provides for five ‘‘ returning officers’’ for all elections in the State, commonly called ‘‘ the returning board. » In view of the constitutional provisions above cited, this statutory provision is strange and anomalous. It suggests and imports a dis- honest purpose; it savors of fraud; in the natural order of things, leaving out of view for the moment that it contravenes the constitution, it is unnecessary, illogical, and absurd, and it is not surprising that the returning board has been one of the chief instrumentali- ties in the hands of desperate adventurers in producing the disorders and stormy conflicts that have disgraced and cursed the State and people of Louisiana ever since it came into existence. What necessary, reasonable, or honest purpose it can serve we cannot see, and its whole history shows that it has accomplished much and lasting evil. 580 SENATE ELECTION CASES. The statutory clause providing for ‘‘the returning board,’’ so far as it affects elections for governor and members of the legislature, manifestly comes in direct conflict with the constitution of Louisiana in two respects: 1. The forty-sixth article provides that ‘‘ returns of all elections for members of the general assembly shall be made to the secretary of state;’’ and it is provided in article 48: * * * ‘ The qualified electors for representatives shall vote for governor and lieutenant-governor at the time and place for voting for representatives; the returns of every election shall be sealed up and transmitted by the proper returning officer to the secretary of state, who shall deliver them to the speaker of the house of representatives on the second day of the session of the general assembly then to be holden.” The term ‘‘returns’’ so used in the constitution plainly means the returns as made up by the election officers in the several parishes. If the counting, tabulating, and certity- ing the votes by such officers is not making up the ‘‘returns,’’ and if such officers are not returning officers, then what is the statement of the votes, and what are such officers - properly termed? What office do they perform? This is made the more manifest by the almost universal use of the term ‘‘returns’’ in connection with elections in the State of Louisiana before the existence of the returning board, and in most if not all the States in the Union. The constitution of Louisiana contains many provisions in reference to elections, and if it had been intended to attach such unusual meaning to the term ‘‘re- turns,’’ such purpose would have been indicated by apt words. As there is no such unusual meaning indicated, the term must be taken in its ordinary acceptation when used in connection with elections. The clause of the statute providing for the returning board requires that the ‘‘returns’’ shall be sent by the proper returning officers to ‘‘the returning board,’’ instead of to the secretary of state, as the constitution provides, and being so in conflict with the constitution it is null and void. 2. Article '73 of the constitution provides: ‘‘The judicial power shall be vested in a supreme court, in district courts, in parish courts, and in justices of the peace;’’ and article 94 provides: ‘‘ No judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police regulations of towns and cities in the State.”’ : The title from which these extracts are taken is styled in the constitution ‘‘ Judiciary department;’’ it provides for courts and the distribution of judicial power, but return- ing officers, or any like officers, are not mentioned in it, except by general terms to exclude them, and no judicial power is conferred upon them by it. = The act creating ‘‘the returning board’’ undertakes to confer upon it very high and important judicial powers. In section 3, above set forth, it undertakes to empower and confer jurisdiction upon ‘‘ the returning board’’ to investigate touching riots, disturb- ances, &c., and to decide to what extent the same affected the election at any polling place, and how, to adjudicate that the vote of the poll or voting place shall be counted, or cast out wholly and rejected; to examine further testimony, to send for persons and papers, and to allow persons interested in such elections to come before them and assert and defend their rights. And by necessary implication, it is intended to confer all judicial power essential to determine all such questions as may come under their juris- diction. But the constitution, as we have seen, expressly forbids that any judicial power shall be conferred upon such officers, and the statutory provision in question is therefore null and void. It may be said that if the returning board and its acts are nullities then the election must fail absolutely. This does not follow; butif it should, this is no excuse or justi- fication, and cannot put life into the statute when there is a plain and palpable violation of the constitution. But such consequences cannot follow. The returning officers des- ignated by the constitution must send the returns to the secretary of state, and the leg- islature may be duly organized according to the ordinary rules of general parliamentary law. These are well understood, and in some States they alone prevail, and in the House of Representatives they prevailed for a long while. But granting, for the argument, that the returning board had a constitutional exist- ence, it plainly exceeded its powers in two material respects: 1. The statute regulating the manner of holding elections provides (see section 2, above set out), in reference to the returning board, as follows: ‘‘ The presiding officer shall at such meeting open, in the presence of the said returning officers, the statements of the commissioners of election, and the said returning officers shall, from said statements, canvass and compile the re- turns of the election in duplicate; one copy of such returns they shall file in the office of the secretary of state, and of one copy they shall make public proclamation, by print- ing in the official journal and such other newspaper as they may deem proper, declaring the names of all persons and officers voted for, the number of votes for each person, and the names of the persons who have been duly elected. The returns of the election thus THE LOUISIANA CASES, 1873-80. 581 made and promulgated shall be prima facie evidence in all courts of justice and before all civil officers until set aside after contest according to law of the right of any person named therein to hold and exercise the office to which he shall by such return be de- clared elected. The governor shall, within thirty days thereafter, issue commissions to all officers thus declared elected who are required by law to be commissioned.”’ Now, this provision is very material; it is not merely directory, it is mandatory and essential. ‘‘The statements of the commissioners of election’ are made by the officers at the polls, who held the election and knew exactly what votes were polled and under - what circumstances; and, besides, these statements are sworn by the commissioners. The fact is, that in ascertaining the result of the election the returning board did not, from the statements of the commissioners of election, ‘‘ canvass and compile the returns of the election;’’? but, on the contrary, they canvassed and compiled the returns from the consolidated returns made up by the supervisors, as provided in section 43 of the statute set out above. This conduct on the part of the returning board was not only unlawful, but the testimony goes to show that it was done willfully; that in repeated instances the commissioners’ returns did not correspond with the supervisors’ consoli- dated returns; that the latter had been so made up falsely, and always in favor of the Republican candidates, to the extent of some 3,500 votes. 2. Section 26, set out above, of the statute referred to, provides that in case of riot, and other offenses specified, it shall be the duty of the commissioner or supervisor, as specified, to make under oath a clear and full statement of all the facts connected with such unlawful acts, and the effect of the same upon the election, and such statement must be corroborated under oath by three respectable citizens, qualified electors of the parish; such statements must be sent to the returning board, attached by wax or some adhesive substance to the returns of election. Section 3, set out above, of said act, prescribes the duties of the returning board in cases where such affidavits shall accom- pany returns sent to them. It will be seen that in one contingency they must not disturb the return, but count it; in another contingency they must reject it, and refuse to count it. Now, in plain violation of this statute in the respect last mentioned, the returning board in repeated instances, and after they had examined the returns and saw how results could be affected to suit their wishes and interests, received affidavits alleging such offenses in various parishes and voting places, which affidavits were not made by supervisors or commission- ers of election, but by other persons, and such affidavits did not accompany returns as required by law; and, pretending to act upon such affidavits, the returns were sup- pressed—not rejected, as allowed by law in the contingency named, but suppressed in such way as to give Republican candidates majorities where they did not receive major- ities in the parishes and at the voting places named. : Mr. Kellogg admits in his statement (see it) that in the twelfth, eighteenth, and twenty-second senatorial districts the Democratic candidates had the majority of the votes cast at the polls, and, asthe commissioners’ returns sent to the returning board showed, that in the election of ten members of the house of representatives designated the re- turns of commissioners showed that Democratic candidates were elected, and the return- .ing board so changed or suppressed the returns as to show that the Republican candidates were elected. Without reference to the fraudulent purpose of the returning board in the respects just mentioned, it had no power thus to interfere with returns and alter or suppress them. If, under the constitution, it can exist at all for any purpose, it must pursue strictly the powers conferred upon it; it has not general jurisdiction, and cannot exercise powers like a court having general jurisdiction. It exceeded its powers, tran- scended its jurisdiction in the respects just mentioned, and such acts, apart from fraud, were null and void. It cannot be truly said that the returning board exceeded its jurisdiction and exercised important powers which the statute creating it did not purport to confer by inadvert- ence. On the contrary, the evidence shows conclusively that it assumed such powers in aid of the most flagrant frauds perpetrated by it. Indeed, its whole course of con- duct, in pretending to ascertain the result of the election, manifests most strikingly the real purpose had in view in creating this strange and unnatural tribunal. Itascertained results of the election, and seeing them, with deliberation and advisedly, changed them at will; made new ones, and always in favor of the Republican candidates. The returns from the parishes showed that Nicholls, the Democratic candidate for governor, had a majority over Packard, the Republican candidate for the same office, of 8,010 votes. By the exercise of the unlawful powers already pointed out, this majority was changed to a majority in favor of Packard of 3,426 votes. The evidence shows, and it is admitted by Mr. Kellogg, that Perkins, Democrat, had a majority for senator in the twelfth senatorial district; he beat Weber, Republican, jargely, but the returning board gave the latter a certificate of election. Meredith, Democrat, had a majority over Hamlet, Republican, for the senate, for the eighteenth 582 SENATE ELECTION CASES, senatorial district; the returning board gave Hamlet the certificate. Sandiford, Dem- ocrat, beat Blunt, Republican, for the senate, in the twenty-second senatorial district ; the returning board gave Blunt the certificate. In Ouachita Parish, Breard and Taylor, Democrats, beat Barrington and Brewster, Republicans for the house of representatives, as the parish returns show; but the re- turning board gave the Republicans certificates of election. In East Baton Rouge Par- ish, Dupré, Williams, and Young, Democrats, beat Bird, Holt, and Lane, Republicans, for the house of representatives; the returning board gave the certificates of election to the Republicans. In La Fayette Parish, Marshall T. Martin, Democrat, beat Fernest Martin, Republican (these were brothers), for the house of representatives; the Repub- lican received the certificate of election. In West Feliciana Parish, McGee and Ryland, Democrats, beat Swazie and Early, Republicans, for the house of representatives. The Republicans, however, received cer- tificates of election. In Morehouse Parish, Washburn and Hammond, Democrats, beat Shelton and Blair, Republicans, for the house of representatives, but the certificates of election were given to the Republicans. In DeSoto Parish, Pitts and Means, Demo- crats, beat Long and Johnson, Republicans; the latter received certificates of election. The returning board refused to count any returns from the parishes of Grant and East Feliciana; the returns were thrown out absolutely. The parish returns show that Lyons and Porter, Democrats, were elected from East Feliciana, and Randolph, Demo- crat, was elected from Grant Parish. : The parish returns show that the Democrats were elected in each instance above men- tioned, and Mr. Kellogg admits that they received majorities. (See his statement made to the committee on 13th of November instant.) These changes were wrought by the returning board, not in the exercise of the powers sought to be conferred upon them by statute and in the way prescribed, but by the exercise of arbitrary power, for which there was no color of legal sanction. The statute creating the board required that it should be composed of five persons to be elected from all political parties. In fact there were but four members composing it, and all of them Republicans. The statute commanded that the vacancy should be filled by those members in office; they peremptorily refused to fill the vacancy. In changing the results of the election as above stated, the sittings of the board were irregular; their movements were clandestine and collusive; they received illegal evi- dence to the end they might make pretext for suppressing polls; they received sug- gestions trom persons not allowed by law to make them; and after they and their polit- ical associates saw that it was necessary to change results in their own interests, Mr. Spofford proposed to prove that Mr. Kellogg, then governor and a candidate for the United States Senatorship which he now claims, ‘‘joined in making illegal complaints and inducing the board to consider them.’’ ; : In view of the facts and circumstances developed by the testimony received by the committee we do not hesitate—we feel constrained to declare—that the returning board in Louisiana in pretending to ascertain and determine the result of the election in that State in November last not only proceeded in many material respects without the sane- tion or even color of law, but perpetrated the most flagrant and shameless frauds, sur- passing, if possible, any ever perpetrated by that tribunal before, and by such means undertook to change the actual result of that election so as to elect the Republican can- didate for governor and give the Republicans a majority in the legislature. Their action was unlawful, willful, corrupt, concerted; and we cannot escape the conviction that it was, to say the least and best, connived at and encouraged by persons occupying impor- tant stations in and out of the State of Louisiana. On the 1st day of January, A. D. 1877, as the constitution of Louisiana directs, the legislature designated as ‘‘the Nicholls legislature’’ assembled in Saint Patrick’s Hall in the city of New Orleans. The following extracts from the journal of the senate, found on pages 1 and 2, show the circumstances under which it met: ‘“The members of this senate, duly elected, proceeded at 12 m. on the 1st of January, 1877—heing the first Monday of said month—to the State capitol of the State of Louisi- ana, to which they were refused admittance, and which they found in the possession of a large body of metropolitan police and armed men. ‘‘They were reliably informed of the presence of five companies of United States troops in an adjoining building, and that an entrance into the State capitol, by which the troops could be readily introduced into the senate chamber, had been especially made for that purpose. As the representatives of the people, this body considered it contrary to law and the spirit of free institutions to organize a general assembly of the State of Louisiana under a military guard calculated to overawe and intimidate the members. ‘‘For which reasons they repaired to Saint Patrick’s Hall, in the city of New Orleans, where a permanent organization has been effected.’’—(Senate journal, 1877, page 2.) Then follows on the next page, 3, signed by twenty senators, making a quorum: ‘The undersigned holding-over senators, and senators-elect, do hereby solemnly pro- THE LOUISIANA CASES, 1873-80. 583 test against the occupation of the capitol of the State by an armed body of metropolitan police and other armed retainers, supported by a large body of Federal troops in an adjacent building immediately accessible to the State-house by a passage purposely pre- pared with that object in view, which illegal, arbitrary, and revolutionary proceedings have been consummated by the order and under the sanction of the governor of the State, and the lieutenant-governor as presiding officer of the senate, for the purpose of overawing and controlling the deliberations of the general assembly, and preventing the access of the members duly elected, as well as the citizens of the State, to the meet- ings of their servants, save upon the written permission of the governor,” &c. There were in the senate at the organization on the day it assembled twenty senators. Of these, nine were ‘‘holding-over senators,’’ and their right is not questioned; eight new senators held certificates from the returning board, and it is admitted that 8S. G. Perkins, senator from the twelfth district, received a majority, he beating Weber, the Republican candidate. It is likewise admitted that T. E. Meredith received a majority of the votes cast in the eighteenth senatorial district over Hamlet, the Republican candi- date. And it is also admitted that J. W. Sandiford received a majority of the votes cast in the twenty-second senatorial district over Blunt, the Republican candidate. The par- ish returns show these facts, and they are admitted. (See Mr. Kellogg’s statement, made to the committee on the 13th of November, 1877.) : It required nineteen senators to make a quorum; twenty senators were present at, and participated in, the organization. The following extracts from the journal of the house of representatives show the cir- cumstances attending the organization of that body (page 1): “‘HousE OF REPRESENTATIVES, “* New Orleans, January 1, 1877. ‘At 12 o’clock m. the clerk of the house of representatives, in accordance with the . law, took his place on the stand of the speaker of the house and stated that he had found the State-house barricaded and in the possession of the police and military of the State, placed there by order of the governor, and a militia officer in charge of the hall of the house of representatives; that he had demanded that such officers should withdraw, and the obstructions to the free ingress and egress to the State-house and hall of the house of representatives be removed; that he had been refused such demand, and would not organ- ize the house of representatives under such circumstances, but would go elsewhere and organize that body. He then repaired to Saint Patrick’s Hall, where the house was called to order.”’ Mr. Trezevant was the clerk who organized the house; he was clerk of the ‘‘old house”’ and the person authorized by.law to organize the new one. There were present and participating in the organization of the house sixty-two mem- bers, sixty-one being a quorum; of these —— held certificates from the returning board. Of those present, the parish returns show, and it isadmitted (see Mr. Kellogg’s statement above cited), that D. A. Breard, jr., and J. G. Taylor, of Ouachita Parish, received ma- jorities over Barrington and Brewster, Republicans; that J. Pitts and Joe T. Means, of De Soto Parish, received majorities over Long and Johnston, Republicans; that Robert H. Ryland and J. B. McGehee, of West Feliciana, received majorities over Swazie and Early, Republicans; that W. W. Washburn and J. D. Hammond, of Morehouse Parish, received majorities over Shelton and Blair, Republicans; that James T. Williams, H. C. Young, and J. W. Dupré, of East Baton Rouge Parish, received majorities over Bird, Holt, and Lane, Republicans; that Marshall T. Martin, of La Fayette Parish, received a majority over Fernest Martin, Republican; that W. W. Carlos, of Webster Parish, re- ceived a majority over Heath, Republican; that W. B. Porter and T. B. Lyons, of East Feliciana, received all the votes cast; had no opponent; this vote the returning board threw out; that E. G. Randolph, of Grant Parish, received a majority of all the votes cast; the vote of this parish the returning board threw out. It thus appears that ‘‘the Nicholls legislature,’’ on the first day it assembled, had a quorum, and more than a quorum, of members who had been elected at the polls, and in fact had the right to sit. But for the unlawful and fraudulent action of the returning board, there could be no pretense for suggestion that the organization thus made was not strictly legal in all respects. Indeed, the organization was made in pursuanee of the actual result of the election. It is said, however, that whatever may have been the result of the election at the poll- ing places throughout the State in the parishes, the legislature must be organized by those persons, and only those, who hold certificates of election from the returning board, and that without reference to the conduct of that. board, whether dishonest, fraudulent, or otherwise. In reply to this view we have endeavored to show, first, that the return- ing board had no constitutional sanction as returning officers of the election for governor and members of the legislature, and its acts are therefore void; second, that granting for 584 SENATE ELECTION CASES. argument’s sake that it had a legal existence, it transcended its powers and jurisdiction, first, in failing to ‘‘ canvass and compile’’ the returns of the commissioners of election, instead of the consolidated returns sent to it by the supervisors of election; and second, in that it received suggestions after seeing the returns and knowing the result as to vio- lence, disorders, &c., otherwise than as the law allowed. And the testimony makes the dishonest purpose and fraudulent conduct of the returning board in changing results manifest. There is, however, another answer. The Senate, in Spencer’s case, after much debate, decided that when there are two rival bodies of men in a State, each claiming to be the lawful legislature, it is competent to look behind the certificate of election and see who was in fact elected at the polls. This is a recent decision, and it was sanctioned by the vote of every Republican Senator who voted on the question. We do not stop here to question the soundness of this decision; it was made by a Republican Senate and in favor of a Republican Senator. We cite the following extract from the report of the Committee on Privileges and Elections in this case. The committee say: ‘When we consider that all the forms prescribed by law for canvassing and certifying an election, and for the organization of the two houses, are designed to secure to the persons actually elected the right to act in the offices to which in fact they have been elected, it would be sacrificing the end to the means were the Senate to adhere to the mere form, and thus defeat the end which the forms were intended to secure. ‘The persons in the two bodies claiming to be the senate and house of representatives who voted for Spencer constituted a quorom of both houses of the members actually elected; the persons in the State-house legislature who voted for Sykes did not constitute a quo- rum of the two houses duly elected, but a quorom of persons certified to have been elected to the two houses.’’ The legislature, so organized,'on the 2d day of January, 1876, canvassed the returns for governor, and declared Francis T. Nicholls elected, and on the 8th day of the same month he took the oath of office prescribed by law, and has ever since that time exercised the office of governor. On the 24th day of April, 1877, the legislature elected the contestant, Mr. Spofford, to be a Senater in the United States Senate for six years from the 4th of March, 1877, hav- ing voted in joint assembly at least once each legislative day since the 10th of January, 1877. Each house took a vote on the 9th. The whole number of votes cast in that election was 153. Mr. Spofford received 140 votes. There were but three members of the legislature absent at the time. Of the members thus voting, 51 had been in ‘‘ the Packard legislature’’ at the time Mr. Kellogg claims to have been elected, and voted for him. At the time Mr. Spofford was elected there was only ‘‘the Nicholls legisla- ture’’ in the State, and there was no opposing or rival body. All the acts passed by this legislature are duly published and recognized as the stat- utes of Louisiana. They are recognized by all the co-ordinate branches of the State gov- ernment and by the whole people, and by the courts of the United States sitting in that State. The first act passed by this legislature was approved by Governor Nicholls on * the 8th of January, 1877, the day he went into office. The body of men which claimed to be the legislature of Louisiana, and commonly called ‘‘ the Packard legislature,’’ assembled in the State-house, in New Orleans, on the 1st day of January, 1877. The house was barricaded and surrounded by bodies of met- ropolitan police, and several companies of United States troops were kept in readiness for action in the neighborhood of the State-house. There were in the senate branch of this legislature eight ‘‘ holding-over ’’ senators and eleven persons claiming to be senators holding certificates of election from the returning board. These persons were Messrs. Blunt, Bryant, Case, Demas, Hamlet, Hooper, Sutton, Stamps, Wakefield, Wheeler, and ‘Weber—eleven in all. These altogether make nineteen, a quorum, if they had all been elected, but Blunt, Hamlet, and Weber were defeated candidates; this the parish re- turns show and the fact is admitted. So that, in fact, there were in this senate but sixteen senators entitled to sit in a lawful legislature. One of these (Hamlet) hav- ing departed, left them without even a nominal quorum. Then Mr. Steven, a ‘‘ holding over’’ senator, sitting in ‘‘the Nicholls legislature,’’? happened to be in the State- house on business, and the sergeant-at-arms of the Packard legislature seized and took him into the senate chamber to try and restore their nominal quorum. He was taken by force, and against his will and protest, and he did not participate in anything done. The seizure of Mr. Steven was a disgraceful proceeding, and the object had in view was to make a nominal quorum in order to admit as senators, upon a feigned contest, Baker and Kelso, two candidates who were defeated at the polls, and who did not even hold certificates of election from the returning board. Steven did not vote, refused to par- ticipate, and without him there was no quorum present when Kelso and Baker were admitted. . Mr. Steven gives the following account of his seizure. He says: “On January 1, 1877, I was one of the holding-over senators who formed the senate THE LOUISIANA CASES, 1873-80. 585 ae State of Louisiana convened on that day in Saint Patrick’s Hall, in the city of New rleans. “*T was one of the committee of three appointed by the chair to inform Governor Kel- logg that the senate was duly organized, and ready to receive any communication he might have to make, &c., &e. The other members of the committee were Mr. Garland, of Saint Landry, and Mr. Boatner, of Catahoula, both of whom were elected in 1876, The committee proceeded to the Saint Louis Hotel, were admitted to Governor Kel- logg’s office, and delivered to him in person the message with which they were charged. Upon leaving Governor Kellogg’s office, I was stopped by two or three persons, who stated that they were sergeants-at-arms of the senate, and that I must accompany them to the senate chamber. I stated that the senate of the State had met in Saint Patrick’s Hall on that day and had adjourned until the following day; therefore I refused to ac- company them, and refused to submit to arrest. “1 was thereupon seized by two or more of these parties and pushed and dragged in the direction of the senate chamber, I resisting at every step. In this manner we reached the outside bar of the senate, where, by getting my feet against the railing, I was enabled for a few moments to make a more effectual resistance. I was finally forced to the bar of the senate. I addressed myself to the president (Lieutenant-Gov- ernor Antoine), who was in the chair, stating the circumstances which led to my arrest, prptesting against the arrest, and demanding that I be permitted to withdraw. The president stated that I could only be permitted to withdraw by unanimous consent of the senate, which was refused. At this juncture Governor Kellogg came in through a door immediately in the rear of the president’s desk. I appealed to him as commander- in-chief of the forces occupying the building to release me, as I considered my arrest as equivalent to a violation of a flag of truce. _ ‘He stated he was very sorry, &c., but as the senate had me in custody he could not interfere. I then made an attempt to go out, but was seized by several persons and forced back. I took a chair and sat down with my back to the president, at the end of the center aisle. The roll was called, my name repeated probably a dozen or more times; I made no response nor gave recognition in any way, shape, or manner whatever. When the roll was called on the seating of Baker and Kelso I made no answer, nor gave sign or motion of any kind whatever. “WILL STEVEN.”’ There was not at any time a lawful senate. In the Packard house of representatives there were at no time more than sixty-eight persons present claiming to be members. Eleven of these, including Brown, of Vernon Parish, as has already appeared, were defeated at the polls, so the parish returns show, and Mr. Kellogg admits that their Democratic opponents had majorities of the votes cast. This leaves the house without a quorum of members actually elected. Mr. Kellogg, there- fore, did not receive a majority of the members elected to the legislature. The evidence shows that but for the presence of the United States troops the so-called “Packard legislature’? would never have assembled, and never would have set up any claim to be a legislature; but for the presence of- troops it would not have continued to exist for one hour; it never for one moment existed as a free legislative body; it was the creature of fraud and force, and as soon as the latter disappeared it fled from the face of men; it felt and realized that it had no rightful existence, and hence its friends and foes alike repudiated it. From the beginning it was a sham, a pretense, and a fraud; it passed no act, it did nothing that is recognized as law by any of the authorities in Lou- isiana; it did no act for which any authority claims validity, except the pretended elec- tion of the contestant, Mr. Kellogg. This is the only act it did that claims recognition, and it remains to be seen if the Senate of the United States alone will recognize and accept this single fraudulent act of a pretended legislature which the State and people of Louisiana utterly repudiate. Treachery and fraud mark every lineament of the so-called ‘‘ Packard legislature”? from its incipiency, and the Senate cannot escape seeing this. But apart from fraud, where there are two rival bodies of men in a State, each claiming in good faith to be the lawful legislature, and each contests the right of the other from the beginning of their existence, and such contest is continued without intermission until one prevails and ab- sorbs the other, so that the latter completely disappears, and all the co-ordinate branches, and all the authorities, and the great mass of the people of the State, and the President and courts of the United States, recognize the prevailing body as the lawful legislature, and all its acts passed from its beginning as laws of the State, and recognize no single act of the body so absorbed and totally disappearing, can the Senate of the United States, many months after it has so completely disappeared, recognize the body thus disappear- ing as the legislature of the State by admitting to the Senate as a Senator a person who claims to have been elected by such a body of men? 586 SENATE ELECTION CASES. The statement of the proposition irresistibly suggests the answer—it cannot. The Senate may have the physical power to do so—it has not the right to do so—it can only do so by the arbitrary exercise of lawless, despotic power. Such an acton the part of the Senate could only be regarded as a defiance of the authority, right, and will of the State and an insult to its dignity; it would shock the moral sense of the American people, and afford cause for profound distrust and alarm for the safety of our system of government. The misrule and public disorders which have afflicted the State and people of Lou- isiana seem to have passed away. The settlement of differences and a new administration of government resulting upon the election in November last restored peace, good order, and a wholesome government. That State and that people have settled their political contests and strifes which have annoyed and distressed the whole country. The Senate ought not, we trust it will not, disturb that settlement and revive bitter controversies. On the contrary, we trust it will, as in law and right it must do, accept and ratify that settlement by admitting the contestant, Mr. Spofford. His credentials, in all respects, comply with requirements of law, and he is well entitled to sit as Senator. : ELI SAULSBURY. A. 8. MERRIMON. BENJ. H. HILL. WEDNESDAY, November 28, 1877. , Mr. Wadleigh rose to a question of privilege and moved that the Senate proceed to the consideration of the resolution yesterday reported by the Committee on Privileges and Elections to admit William P. Kellogg to a seat in the Senate as a Senator from the State of Louisiana. ¥ * * * * * * The Senate proceeded to the consideration of the said resolution. On motion by Mr. Thurman to amend the resolution by striking out all after the word ‘*resolved’’ and in lieu thereof inserting: “That M. C. Butler be now sworn as a Senator from the State of South Carolina,’’ After debate, On the question to agree thereto, the yeas were 30 and the nays were 30. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merrimon, Morgan, Patterson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. The vote of the Senate being equally divided, The Vice-President voted in the negative. So the amendment was not agreed to. Upon the announcement of the result of the vote on the amendment, Mr. Thurman rose to a question of order, and submitted that the provision of the Constitution that the Vice-President shall have no vote unless where the Senate is equally divided does not apply to the case of seating a member; but that questions of seating a member should be left to the Senators themselves, under the provision that each House shall be the judge of the elections, qualifications, and returns of its own members; and, After debate, Mr. Thurman withdrew the question of order. The question recurring on agreeing to the resolution, Pending debate, a message was received from the House of Representatives. * * * * * * ¥ The Senate resumed the consideration of the resolution to admit William Pitt Kel- logg to a seat in the Senate; and, On motion by Mr. Patterson (at 6 o’clock and 10 minutes p. m.) that the Senate ad- journ, it was determined in the affirmative—yeas 29, nays 27. * * * * * x * (The debate is found on pages 730-749 of the Congressional Record, vol. vi.] THE LOUISIANA CASES, 1873-80. 587. THuRsDAY, November 29, 1877. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William Pitt Kellogg toa seat in the Senate as a Sen- ator from the State of Louisiana; and, Pending debate, On motion by Mr. Conover (at 4 o’clock and 5 minutes p. m.), the Senate proceeded to the consideration of executive business. [The debate is found on pages 749-764 of the Congressional Record, vol. vi. ] FRIDAY, November 30, 1877. The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Senator from the State of Louisiana; and, The question being on the amendment proposed by Mr. Saulsbury to amend the res- olution so as to read as follows, viz: ‘ ‘‘Whereas it appears by the report of the minority of the Committee on Privileges and Elections that Henry M. Spofford, one of the contestants to a seat in the Senate from the State of Louisiana, did ask and demand the authority of the committee to produce testimony on the five following points at issue between the contestants, to wit: “1. That the facts relative to the election of Tremoulet, Cressy, and Rolle, from the seventh representative district of New Orleans, were substantially as set forth in the statement read by H. M. Spofford in his argument before this committee on the 24th October, 1877. “2. That the composition, votes for Senator, and political proclivities of the legislature on the 24th April, 1877, when H. M. Spofford was elected Senator, were substantially as set forth in the aforesaid argument. “3. That by the actual returns or statements as made in duplicate by the supervisors of registration (and assistant supervisors), with their appointees, the commissioners of election, and sent one set to the clerk of the district court of each parish in the county and to the secretary of state in the city, and the other set to the returning board (so called), showed a majority of votes actually cast throughout the State of about 8,000 votes for Nicholls and Wiltz over Packard and Antoine for the offices of governor and lieutenant-governor in the election that took place in Louisiana November 7, 1876. ‘4. Besides these specific violations of the constitution and of the law under which they pretended to act, I charge that the conduct of the returning officers in suppressing polls and changing the result of the constitutional returns was clandestine, collusive, tyrannical, and unjust; that the real work of conducting an election under pretext of compiling votes was proceeded with in a secret chamber by a corps of partisan clerks, while the occasional open sessions of the board were side-shows devised to screen what was going on within; that arbitrary rules of evidence were established for pretended contests and changed so often and abruptly that no fair trial could be had or was had before the board; that illegal complaints were constantly received and illegal evidence admitted for the purpose of setting aside polls that were in the way of such candidates as the board desired to elect; and that Mr. Kellogg himself, then governor, joined in making illegal complaints and inducing the board to consider them. “5. I am informed, and so charged, that the returns from Vernon Parish, after they came into possession of the returning officers, and while they were under their control, were fraudulently altered by a change of figures, tantamount to a forgery of a public record; that the board knew what the figures upon those returns were before their alter- ation, and yet after the alteration promulgated the results of said forgery as the true returns; that by such fraudulent alteration E. E. Sinart, candidate for representative in the State assembly, who had in fact and according to the returns as they first came to the.board defeated his competitor, Brown, was left behind and Brown, the defeated can- didate, falsely declared elected; and that said Brown took his seat in the Packard house and figures on the journal as present on the 2d of January, 1877, when there was a pre- tended count of votes for governor and lieutenant-governor in joint assembly, and per- haps on one or two other occasions, but that he afterward abandoned that body and went home, acknowledging that he never had been elected. ‘And which request was refused by a majority of said committee: Therefore, “« Resolved, That the credentials of William Pitt Kellogg and of Henry M. Spofford, the contestants for the seat in the Senate from the State of Louisiana, be recommitted to the Committee on Privileges and Elections, with all the papers relating to said con- test, with instructions to said committee to take testimony on the issues above men- ioned.’’ é . othe question being first put by the Chair on agreeing to the amendment of Mr, Sauls- 588 SENATE ELECTION CASES. bury to the resolution reported by the committee, viz: Strike out all after the word ‘‘re- solved’’ and in lieu thereof insert: “That the credentials of William Pitt Kellogg and of Henry M. Spofford, the con- testants for the seat in the Senate from the State of Louisiana, be recommitted to the Committee on Privileges and Elections, with all the papers relating to said contest, with instructions to said committee to take testimony on the issues above mentioned,’’ It was determined in the negative—yeas 29, nays 29. On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merrimon, Morgan, Pat- terson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMil- lan, Matthews, Mitchell, Morrill, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. So the amendment was not agreed to. The question recurring on agreeing to the resolution, On motion by Mr. Thurman that the Senate proceed to the consideration of executive business, it was determined in the negative—yeas 21, nay 31. * * * * * * * The Senate resumed the consideration of the resolution reported by the Committee on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Sen- ator from the State of Louisiana; and, After debate, On motion by Mr. Hill to amend the resolution by striking out all after the word ‘‘resolved’’ and in lieu thereof inserting: “That Henry M. Spofford be admitted as a Senator from the State of Louisiana on a prima facie title, and subject to the right of William Pitt Kellogg to contest his seat,’’ It was determined in the negative—yeas 27, nays 29. On motion by Mr. Allison, the yeas and nays being desired by one-fifth of the Sena- tors present, Those who voted in the affirmative are Messrs. Bailey, Beck, Bayard, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here- ford, Hill, Jones of Florida, Kernan, McCreery, McDonald, McPherson, Merrimon, Mor- gan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Kirkwood, McMillan, Matthews, pean Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, Teller, and adleigh. So the amendment was not agreed to. The question recurring on agreeing to the resolution in the following words: ‘* Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully en- titled to a seat in the Senate of the United States from the State of Louisiana for the term of six years commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath; ‘* Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States,’’ It was determined in the affirmative—yeas 30, nays 28. The yeas and nays having been heretofore ordered, Those who voted in the affirmative are Messrs. Allison, Anthony, Booth, Bruce, Burn- side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, Teller, and Wadleigh. ; Those who voted in the negative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here- ford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merri- mon, Morgan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. So the resolution was agreed to. * * * * * * * Mr. William Pitt Kellogg then appeared, and the oath prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. [The debate is found on pages 767-797 of the Congressional Record, vol. vi. J THE LOUISIANA CASES, 1873-80. 589 [First session of the Forty-sixth Congress. ] FRIDAY, March 21, 1879. 2 Mr. Jonas presented a memorial of Henry M. Spofford, of Louisiana, praying an inves- tigation into his claim to a seat in the Senate as Senator from that State; which was referred to the Committee on Privileges and Elections. WEDNESDAY, April 16, 1879. Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the following resolution: “Resolved, That the Committee on Privileges and Elections be authorized to have printed for its use the arguments before it in the case of Spofford against Kellogg rela- tive to a seat in the Senate from the State of Louisiana, with such evidence, papers, and documents relative to the case as it may deem proper.” The Senate proceeded, by unanimous consent, to consider the said resolution; and having been amended on the motion of Mr. Hoar, the resolution, as amended, was agreed to, as follows: ‘Resolved, That the Committee on Privileges and Elections be authorized to have printed for its use the arguments before it in the case of Spofford against Kellogg rela- tive to a seat in the Senate from the State of Louisiana, with such other proceedings in relation to the case as it may deem proper.’ [The debate is found on pages 468, 469 of the Congressional Record, vol. ix, part 1.] THURSDAY, May 1, 1879. Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow- ing resolution; which was ordered to be printed: ‘Resolved, That the Committee on Privileges and Elections, to which was referred the memorial of Henry M. Spofford, praying permission to produce evidence relating to the right of Hon. Wllliam Pitt Kellogg to the seat in the Senate held by him from the State of Louisiana, and in support of the claim of said petitioner thereto, be, and said commit- tee is hereby, instructed to inquire into the matters alleged in said petition, and for that purpose said committee is authorized and empowered to send for persons and papers, administer oaths, and do all such other acts as are necessary and proper for afull and faix investigation in the premises. Said committee may, in its discretion, appoint a subcom- mittee of its own members to make such investigation in whole or in part; which sub- committee shall have authority to employ a clerk, stenographer, and sergeant-at-arms, and shall have all the powers of the general committee to administer oaths and send for persons and papers, dnd may make such investigation either in Washington or in the State of Louisiana; and said committee or its subcommittee may sit in vacation.” FRIDAY, May 2, 1879. The Senate proceeded to consider the resolution yesterday reported by Mr. Saulsbury, from the Committee on Privileges and Elections, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt Kellogg to a seat in the Senate; and On motion by Mr. Hoar to amend the resolution by striking out all of said resolution and inserting in lieu thereof the following: ‘¢ Whereas on the 25th day of October, 1877, the Senate unanimously adopted the fol- lowing resolution: ‘ ¢Pesolved, That the Committee on Privileges and Elections on the contested cases of William Pitt Kellogg and Henry M. Spofford, claiming seats as Senators from the State of Louisiana, and whose credentials have been referred to such committee, be authorized to send for persons and papers, and administer oaths, with a view of enabling said com- mittee to determine and report upon the title, respectively, on the merits of each of said contestants to a seat in the Senate; ’ ‘And whereas on the 26th day of November, 1877, said committee reported the fol- lowing resolutions: . 4 : ; “**Pesolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a seat in the Senate of the United States from the State of Louisiana for the term of six years commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper oath; (ot Renolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States; ’ “And on the 30th day of November, 1877, the Senate adopted said resolution, and 590 SENATE ELECTION CASES. thereafter on the same day said Kellogg was duly admitted to take the oath and took his seat as a Senator from said State for said term: ‘Resolved, That said proceedings are final and conclusive upon the right of said Kel- logg and the claim of said Spofford to said seat for said term.”’ Pending debate, The President pro tempore announced that the morning hour had expired, and called up the unfinished business of the Senate at its adjournment yesterday. [The debate is found on pages 1022-1024 of the Congressional Record, vol. ix, part 1.] TuEsDAY, May 6, 1879. The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from the Committee on Privileges and Elections, May 1, 1879, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt Kellogg to a seat in the Senate; and, The question being on the amendment proposed by Mr. Hoar, Pending debate, The Presiding Officer announced that the morning hour had expired. [The debate is found on pages 1071-1087 of the Congressional Record, vol. ix, part 1.] WEDNESDAY, May 7, 1879. The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from the Committee on Privileges and Elections, May 1, 1879, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt Kellogg to a seat in the Senate; and, The question being on the amendment proposed by Mr. Hoar, After debate, On motion by Mr. Edmunds to aménd the resolution by inserting after the word “‘petition,’’ in line 6, the following: ‘‘So far only as relates to any charge in said peti- tion of personal misconduct on the part of said Kellogg which may render him liable to ‘expulsion or censure,’’ it was determined in the negative—yeas 20, nays 27. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. On motion by Mr. Conkling to amend the resolution by adding at the end thereof the following: : ‘Provided, That the inquiry hereby authorized shall be confined to the matters alleged in the memorial of Mr. Spofford to be new and different from those covered by the pre- vious inquiry,”’ It was determined in the negative—yeas 20, nays 27. On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen- ators present, Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. The resolution having been amended on the motion of Mr. Hoar, On motion by Mr. Edmunds to further amend the resolution by inserting after the word “‘that,’’ in line 1, the following: ‘‘recognizing the validity and finality of the previous action of the Senate in the premises,’’ it was determined in the negative— yeas 20, nays 27. On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen- ators present, i : Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, THE LOUISIANA CASES, 1873-80. 591 Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. ‘Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. , So the amendment was not agreed to. On motion by Mr. Conkling to further amend the resolution by adding at the end thereof the following: “Provided, That such questions in said case as were fully considered and adjudged in the former investigation shall not be opened under this resolution,” It was determined in the negative—yeas 20, nays 27. On motion by Mr. Conkling, the yeas and nays being desired by one-fifth of the Sen- ators present, = Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Cockrell, Coke, Davis of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. So the amendment was not agreed to. On motion by Mr. Logan to further amend the resolution by adding at the end thereof the following: ‘Provided, That said committee be further empowered and directed to make inquiry and take testimony upon the matter as to whether any unlawful or corrupt means were employed to disorganize the body by which William Pitt Kelloge claims to have been elected to the Senate, or to organize that by which the memorialist claims to have been elected or to secure the alleged election of the memorialist,’’ During the debate, Mr. Morgan, while addressing the Senate on the proposed amendment, having used the following language: ‘Has the Senator from Louisiana (Mr. Kellogg) any objection to the Committee on - Privileges and Elections investigating the question whether or not he bribed the mem- bers of the legislature that elected him ?’’ Mr. Edmunds raised a question of order, that it was not in order, where another Sen- ator is personally concerned and a resolution is offered affecting hischaracter, to propound such a question. The President pro tempore decided that, in the opinion of the Chair, the language used by the Senator from Alabama contained no imputation upon the Senator from Louisiana, and was in order. After further debate, On the question to agree to the amendment proposed by Mr. Logan, it was determined in the negative—yeas 19, nays 28. On motion by Mr. Logan, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, Cameron of Wisconsin, Dawes, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Morrill, Platt, Rollins, Saunders, and Windom. Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West Virginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, Slater, Vance, Vest, Voorhees, Walker, Williams, and Withers. So the amendment was not agreed to. The question recurring on agreeing to the amendment proposed by Mr. Hoar, viz: Strike out all of said resolution, and in lieu thereof insert the following: ‘¢Whereas on the 25th day of October, 1877, the Senate unanimously adopted the following resolution: ‘“<—Answer. Never. ‘‘Q, Did be approach you on the subject of voting for him?—A. I had a talk with Governor Grover, but he did not mention concerning my voting for him. ‘‘Q. He said nothing in that conversation in the way of inducements; he held out no inducements for you to vote for him?—A. He did not offer me any inducement what- ever; in the talk with him he asked me if I was not afraid that I was injuring the pros- pects of the Democratic party in this State by holding out as I did against the caucus, but he never during the conversation asked me to vote for him. “*Q. Did you state to this man Styles at any time that you could get a thousand dol- lars for your vote ?—A. I never did. I consider that that gentleman has done me and Governor Grover a great injustice, and he stands before the people of Oregon to-day a perjured villain. ‘*Q. No person in your county, as I understand, believes any such allegation against you? “Senator McMILLAN. Senator, that is taking a pretty wide range, it seems to me. “Senator SAULSBURY. No, sir; this gentleman is a man of character, and I take it that he has a right to say before this committee what he knows as to what his neigh- bors think of this thing. “The WITNESS. No, sir; nobody believes it. **Q. Are you regarded in your community as a corrupt man ?—A. I think not; I hope not, at least. ““Q. Do you believe there are any Republicans in that county that would charge it upon you?—A. I don’t believe there are. “Q. Now I willask you this question, Mr. Goodman: Did you ever, directly or indi- rectly, receive one dollar for your vote for Governor Grover for the Senate ?—A. No, sir, never; not one dollar. No man ever approached me upon that subject, either of the Grover faction or the Nesmith faction. ‘*Q. Were you, directly or indirectly, influenced by any pecuniary consideration or reward, in any shape, manner, or form, or by promises of office or money, directly or indi- rectly, in connection with your vote for Governor Grover forthe Senate ?—A. There was no influence brought to bear upon me whatever.”’ See also the testimony of Mr. Watkins, page 589, &c. ue also testimony of J. H. Mosier, page 412, from which the following extract is taken: ‘Question. Do you know a man by the name of W. H. N. Styles, who has testified LA FAYETTE GROVER. 667 before the committee ?—Answer. I never saw the man that I know of. Thatis him right over there, I believe [turning to the left and pointing to a row of by-standers]. No, lam mistaken; I beg your pardon; that is a better-looking man than he was. I will take it all back. He was sitting right over there [pointing] a few moments ago. ‘*Q. You say you never saw the man that you know of—never saw him till now?— A. I never saw him till yesterday. I never saw him in my life that I know of till I came here. ‘‘Q. That man in his testimony swears as follows: ‘**Q. Did you see Mosier at any time after the election?—A. I did. ‘*¢Q. Where did yousee him ?—A. I was introduced to him in Mr. Gilfry’s office.’ “Q. Now, I ask you, Mr. Mosier, if it is true that you were introduced to Mr. Styles in Mr. Gilfry’s office, as he swears?—A. I never was; I never was introduced to any man by that name. “*Q. He says in his testimony as follows: “¢¢Q. When was that ?—A. One or two days after the election I sat down there waiting for Mr. Gilfry to come in. As I sat there perhaps fifteen minutes, I guess, some gentle- man came in. I supposed Mr. Gilfry was inthe other room. I heard some one talking in there, but I did not go in. Isat down there. The gentleman came in who was in the other room, that is, in the governor’s room. I may have sat there fifteen or twenty minutes and Mr. Mosier came in from the governor’s room.’ **Q. Iask you now, Mr. Mosier, if that assertion in this testimony is true ?—A. It is not, sir. I never was in the governor’s private room in my life to my knowledge. ‘*@. You say here upon your honor and upon your oath that that isnot true?—A. I never was in Governor Grover’s private room in my life. ‘‘Q. The testimony of Mr. Styles goes on: ““¢Q. Mr. Mosier came in from the governor’s room ?—A. Yes, sir. ‘¢¢Q. Through the door in the partition ?—A. Yes, sir. He came into the room where I was and had money in his hand.’ “*Q. Lask you, sir, if on any occasion you ever were in the governor’s room ?—A. I was not, to my recollection. ‘*Q. Iask you, sir, if you ever came out of the governor’s room with money in your hand ?—A. No, sir; and any man that makes that assertion or testifies to that statement is a liar. ‘Senator MCMILLAN. Mr. Mosier, the use of that kind of language does not add any- thing to the strength of your testimony. “Senator SAULSBURY (to the witness). Say it in yourown language, sir. You havea perfect right to defend and vindicate your reputation here and elsewhere. “The WITNESS. Yes, sir; I have, and I will do it, too. I have a right to say what I know about this thing, and I say it is false. ‘‘[The answer of the witness was greeted by applause from a portion of the by-stand- ers. ‘Tne CHAIRMAN. I said a while ago that if these unseemly demonstrations were repeated I should feel itto be necessary to clearthisroom. Any demonstrations of applause, or otherwise, calculated either to encourage and embolden or to discourage and intimi- date a witness are evidently improper. I shall let it pass this time; but if after this second warning this thing is repeated I shall have the room cleared. I do not want to give anybody any offense, or to put anybody out if I can help it, but such demonstrations as this are highly improper, as every man who indulges in it must know, and cannot be tolerated here. “The WITNESS. These things do not encourage me any; I shall state the facts all the same, whether they stamp their feet or not.”’ See also testimony of H. H. Gilfry, from which the following extract is taken: ‘Senator SAULSBURY. I ask you, sir, if you ever saw Mr. Mosier in Governor Grover’s private office ?—Answer. No, sir; Idid not. I do not think he was in there at all during the session of the legislature. “‘Q. Was he ever in the governor’s private office with you?—A. Mr. Mosier? No, sir; he never was. : . “Q. Did you ever see any money paid to Mr. Mosier?—A. I never did; no, sir. “(Q, Or to any other member of the legislature?—A. I never did; not a cent, sir. “Q. On the occasion here referred to, or at any other time?—A. No, sir; never. “ Clerks of election. O P > Judges of election. “CD QR “Sec. 1031. The judges of election shall then inclose and seal one of the poll books, under cover, directed to the clerk of the board of county commissioners of the county in which such election was held, and the packet thus sealed shall within three days from the closing of the polls, be conveyed by one of the judges or clerks of election, to be determined by lot, to the post-office nearest the house in which said election for such precinct was held, and register and mail the same to the clerk of the board of county commissioners, and the other poll books, together with the ballot box, shall be deposited with one of the judges of election, to be determined by lot, if not otherwise agreed upon, and the said poll book shall be open to the inspection of any elector at any time thereafter who may desire to examine the same. “Src. 1032. If any judge or clerk, after being selected by the judges of election to convey the poll books of such election to the post-office nearest the house in which said election was held, and mail the same, as provided for in section 1031 of this chapter, shall fail, refuse, or neglect to convey and mail the said poll books, safe with seal unbroken, he shall for every such offense, when convicted thereof, pay the sum of $500, and be imprisoned in the county jail for & period not exceeding three years, 740 SENATE ELECTION CASES. said fine to be recovered in a civil action in the district court in the name of the county commissioners. . “gro. 1033. After the fifteenth day after the close of any election held under the provisions of this chapter, or sooner, if all the returns shall be received, the chair- man of the board of county commissioners, or in his absence any other member of the board, shall, taking to his assistance the probate judge or a justice of the peace, and one other officer of the county, or any county officer, proceed to open the returns and make abstracts of the votes. Such abstracts of votes for Delegate to Congress shall be on one sheet; the abstract of votes for members of the legislative assembly shall be on another sheet; and the abstract of votes for Territorial and district officers shall be on another sheet; and the abstracts of votes for county and township officers shall be on another sheet. And it shall be the duty of tke clerk of said board of county commissioners immediately to make up a certificate of election to each of the persons having the highest number of votes for members of the legislative assembly, county, and township officers, respectively, and to deliver such certificate to the persons entitled to them by mailing the same in ‘registered’ letters to the address of such persons, respectively: Provided, That when a tie vote shall exist between two or more persons for any district or county office, the clerk of the board of county commissioners shall immediately give notice of another election, giving at least ten days’ notice. And it shall be the duty of the clerk of the board of county commis- sioners of such county, on receipt of the returns of any géneral or special election, to make out his certificate, stating therein the compensation to which the judges and clerks of the election shall be entitled for their services, and lay the same before the county commissioners at their next session, and the board of county commissioners shall order the compensation aforesaid to be paid out of the county treasury. Nots.—Last section preceding is from act of February 15, 1877. “Src. 10 34. The clerk of the board of county commissioners, immediately afte making out the abstract of votes given in his county, shall make a copy of each of said abstracts, and transmit the same by mailas a registered package to the auditor of the Territory at the seat of government, and it shall be the duty of the United States marshal and treasurer of the Territory, in the presence of the governor, to proceed within thirty days after the election, and sooner if the returns be received, to canvass the votes given for Delegates to Congress: Provided, That in case the United States marshal and treasurer can not agree as to the number of votes that two or more persons are entitled to for Delegate to Congress, then in that event the governor shall decide who has the highest number of votes, and shall issue a certifi- cate of election to such person, under his hand and the seal of the Territory,counter- signed by the secretary. In case there shall be no choice by reason of two or more persons having an equal and highest number of votes, then the governor shall by proclamation order a new election.” The following provision is also important in this connection: “Src. 1325. The certificate of election from the clerk of the proper county shall be held and considered as prima facie evidence of the right to membership of the person certified therein to be elected for all purposes of organization of either branch of the legislative assembly.” That these laws were in force in the Territory of Montana, on the first Tuesday 01 October, 1889, unless repealed or superseded by the act of Congress or by the ordi- nances of the convention. That there was alsoa statute of said Territory then in force of March 8, 1889, to provide for registration of voters and prevent fraud, pur- suant to the provisions of which the election of October 1, 1889, was held. This act provided, by section 6 of the same, that every voter when he registers, shall make oath before the registering agent specifically to each and every qualification required by law. As an additional safeguard sections 7 and 8 of the act require that when the voter seeking registry is not Known to the register to be entitled to vote, in addition to the oath prescribed by section 6, the register shall, by investigation and by personal examination, specifically and separately ask certain questions to be answered by the voter under oath, set forth in these sections, which cover every qualification of a legal voter. In the case of naturalized persons the facts necessary are required, at the instance of the register, to be proven by a witness in addition to a personal examination of the voter. The registry itself isa thorough challenge and examination of every voter whose name is entered thereon. This registry is publicly posted for seven days or mere before the election for further challenge, if any cause for challenge be known 0 any one. That in precinct 34 of Silver Bow County, as to which alone inquiry is material, all these requirements were fully complied with, and the registry list of 182 voters was perfected, filed, and placed in the hands of the election officers. (4) That the election on the ratification of the constitution and for State and county officers and members of assembly was conducted in said precinct 34 on the first Tues- day ef October, 1889, as elsewhere in said Territory, under the Territorial act of March 15, 1889, which is a carefully considered and revised form of the Australian CLARK AND MAGINNIS VS. SANDERS AND POWER. TAL ballet system. The ballots were prepared at public expense, by the county clerk, with all the careful circumspection required by law. At the proper time he placed in the hands of the judge of the election authorized to receive them, 800 ballots, being 200 ballots for every 50 registered voters or fraction thereof. One hundred and seventy-four of these ballots were stamped and delivered by the proper officers of the election, 1 to each voter, as the act provided. Twenty-six of the ballots were used by the election board for posting up according to law and supplying such as were destroyed by the wind after they had been posted for public examination. Six hundred were re- turned after the election to the county clerk. In fact every requirement of the law was carefully and honestly carried out. Every precaution that human ingenuity has been enabled to devise to secure the freedom and purity of the ballot, and to exclude fraud or corruption, is shown by the evidence to have been vigilantly and carefully observed. The count of the ballots began at the proper hour in ‘a tent where the election was held, in which there was no fire. About 11 o’clock p.m., the wind having arisen and the tent becoming very cold, the boxes and ballots were removed into a room in a house on the same lot and almost in contact with the tent in which the counting had been begun, and the count was there finished. The poll list showed 174 names. The ballots deposited in the box showed 174 votes, and every ballot was regularly and officially stamped. The proper and truth- ful returns were prepared and executed. They were sealed up by the board, and by one of their number delivered personally, with seal unbroken, to the clerk of the board of county commissioners, there being no mail facilities nearer the place of election than the place of delivery to the clerk. The returns thus prepared and de- livered were opened by the county canvassing board. When they were opened the vote cast for the candidates of one of the parties varied between 168 and 172 votes. The votes of the other party varied from 2 to 6. That the effect of this majority was to produce a change in the result as to several of the county officers and as to the tive representatives. That the change of the five representatives was sufficient to give a legislative ma- jority to the joint assembly which chose Messrs. Clark and Maginnis as United States Senators, and would make the body purporting to be a house of representa- tives, which assembled in the court-house at Helena, the true and lawful house of representatives of the State of Montana. (5) That under the statutes of Montana the county clerks of the several counties aremade ex officio clerks of the boards of county commissioners of their several counties. That precinct 34 of Silver Bow County was duly and legally constituted by the board of county commissioners of said county; that all of said commissioners were ot the Republican party, and that the registry agents appointed by them for all the election districts of said county, including precinct 34, were also of that party, as were also two out of the three judges of election appointed for every voting pre- cinct in said county, including precinct 34. That in due time after the said elec- tion the county clerk of Silver Bow County, as ex officio clerk of the board of county commissioners, received the official returns of the election from all the voting pre- cincts of said county, including said precinct 34, the returns of which precinct were delivered to said clerk by one of the judges of the election in a sealed envelope, to- gether with all the official ballots which were not used at said election. That afterwards, on the 11th day of October, 1889, the chairman of the board of county commissioners of Silver Bow County, calling to his assistance another county commissioner and a probate judge, and appointing the clerk of the board of county commissioners and another person clerks, proceeded to perform the duties required of them by law, that is, to open the returns from the several voting precincts of said county, all of which had been duly received and laid before them by the clerk of the board of county commissioners, as required by law, and to ‘‘make abstracts of the votes.” That to open the returns so laid before them, and make abstracts of the votes, was the only duty imposed, and the only authority conferred upon said off- cers by law, unless the duty of making returns of said abstracts to the secretary of the Territory, prescribed by ordinance 2 of the constitutional convention be taken to belong to them instead of the clerk of the board of county commissioners. That the canvass of said vote, or the making of the abstracts of the precinct returns, including precinct 34, was concluded about 5 o’clock p. m., Saturday even- ing, October 12. d ; hat during the progress of said canvass, counsel representing the Republican party appeared before the board and objected on various grounds of alleged irregu- larity to the counting of the returns of the votes cast at various Democratic pre- cincts, including precinct 34. That counsel for the Democratic candidates also appeared before the board and denied the jurisdiction of the board to change the abstract of the votes made by elimination of any of the precincts. The ballot box of precinct 34 was produced before the board by the proper custodian thereof, and the demand was made by the counsel of the Democratic candidates, under protest as to the right of the board to go behind the returns from said election judges of said precinct, that the same should be opened and the votes inspected 742 SENATE ELECTION CASES. and counted. This the board refused to do, and on the evening of October 14, overruling the objections to all the returns from all the other precincts by a ma- jority vote, ordered the returns from precinct 34 and the votes cast thereat to be excluded from the abstract, which had been préviously made, and directed a red line to be drawn through the vote of said precinct so entered upon the abstract sheets. That immediately after the decision thus excluding the returns and refusing to count the votes of said precinct 34, and before the adjournment of the board, and while the clerks were engaged in their work (see certificate and affidavit of C. F. Booth, clerk, etc.), alternative writs of mandamus in the name of the Territory of Montana—one at the relation of John J. McHatton, Democratic candidate for dis- trict judge for Silver Bow County, and the other at the relation of some of the Democratic candidates for the house of representatives, issuing from the district court of the Territory for said county having full jurisdiction in the premises—were duly and lawfully served on all the members of said canvassing board, commanding them to proceed and count the votes of said precinct 34, and make them part of the abstract of votes for the said county for all persons voted for at said election, or show cause to the court on the 28th day of October, 1889, at 10 o’clock a, m., why they had not done so. That on the 21st day of October, 1889, C. F. Booth, the said county clerk, sent a communication to the secretary of the Territory, one of the Territorial board of canvassers, and which the said board admit they had before them at the time they made their finding as to the result of the election in Silver Bow County, in which, after reciting in substance the foregoing facts, he concludes as follows: “‘That by reason of said order from the district court the abstract of votes for said county is incomplete, and by reason of the fact that said abstract of votes is not complete I am unable to forward the copy of such abstract as is required by law to the secretary of the Territory, and that I shall be unable to forward such copy until after the 7th day of November, 1889.’’. That after due proceedings, pleadings, and hearing of parties in the suit at the relation of John J. McHatton, a judgment for a peremptory writ of mandamus was made and entered on the 31st day of October, 1889, as follows: “This cause coming on tor hearing upon the relator’s motion for judgment.upon the petition, order, and writ, and answer and return of defendants: It is ordered, adjudged, and decreed that said motion be sustained, and that defendants had no power or authority to exclude said precinct No. 34, and that their action was illegal and void, and that the returns, including said precinct, constitute the true and cor- rect result of said election, and that said relator have his peremptory writ of mandate, as prayed for in his petition, and recover his cost and disbursement in this behalf expended. This 31st day of October, 1889.” That in like manner, in the suit at the relation of Thomas F. Courtney et al., was rendered and entered the following judgment on the Ist day of November, 1889: “Tn the district court of the second judicial district of the Territory of Montana in and for the county of Silver Bow. ““The Territory of Montana ex rel. Thomas F. Courtney, A. M. Day, A. M. Dessault, John W. Galligan, and Jos. Hogan v. William M-Jack, W. E. Hall, and Caleb E. Irvine, constituting the board of canvassers of Silver Bow County, for an election held on the first Tuesday of October, 1889; and Charles F. Booth, clerk of the county commissioners for said county. “JUDGMENT. “ Be it remembered that this cause came on for hearing upon the relators’ motion for judgment upon the petition, order, and alternative writ and answer and return of the defendants, when it was “ Ordered, adjudged, and decreed by the court that said motion be sustained, and that defendants, William M. Jack, William E. Hall, and Caleb E. Irvine, the can- vassing board aforesaid, had no power or authority to exclude the votea as shown by the returns from said precinct number 34, in said county, and that their action therein was illegal and void, and that the returns, including the said precinct, con- stitute the true and correct result of said election; and that said relators have their peremptory writ of mandate, as prayed for in their petition. “ And it is further ordered, adjudged, and decreed that it is the duty of the said clerk of the said county commissioners to issue a certificate to relators, as prayed for in said petition and affidavit, and that a peremptory writ of mandate issue to compel him to issue said certificates, and that said relators recover cost and disbursements in this behalf expended. This first day of November, 1889. “S. DE WOLFE, “ Judge Second Judicial District Court in “and for Silver Bow County, Montana. (Endorsed:) “Filed November 1, 1889. Wellington Napton, clerk, by (signed) Will L. Clark, deputy clerk.” CLARK AND MAGINNIS VS. SANDERS AND POWER. 7438 That notice of appeal was given by the counsel for respondents in both cases, but said appeals were not perfected, if at all, until the 7th day of November, 1889, by the filing of a bond or undertaking, and on that day peremptory writs of mandate in pursuance of said several judgments were issued and duly served by the proper officer on a majority of the members of said county board of canvass, one of said members, as appears by the return of the sheriff, being absent from the Territory. (6) That the majority of said board, in obedience to the commands of said writs of peremptory mandamus, did, on the said 7th day of November, 1889, meet and pro- ceed to canvass and count, and did in fact canvass and count, the votes cast at said precinct 34, as shown by the said returns thereof, for all the said relators, and made them a part of the abstract of votes for said county; and the clerk of said board of county commissioners did on the same day, in obedience to one of said writs, issue and deliver to the relators therein their certificates of election to the office of rep- resentative in said legislative assembly, and also, in obedience to the other of said writs, issue and deliver to the said John J. McHatton, the relator therein, his certifi- eate of election to the office of district judge. (7) It also appears by the affidavit of the said Charles F. Booth, county clerk,that after the rendition of the judgment of the court in said mandamus proceedings, ad- judging that the rejection by the board of county canvassers of Silver Bow County, of the returns from said precinct 34, was illegal and void, he forwarded to the Ter- ritorial board of canvassers at Helena the abstract of the returns from all the vot- ing precincts of said county, including said precinct 34, with a certified copy of said judgment attached thereto. The following is a copy of said abstract, with the certificate of said Booth as county clerk attached: Copy of correct returns from clerk of county board of canvassers. For State senator. r I lm lh fs 3 |S Precinct— ae p, | oid of & A a ge i28| Bs eae | A adlas (888 /e5/e3) a (sh las a |SH}a |o | 3 |50 So IA l4 [eb Ja | 4 ja |<= Walkerville .... Walkerville Centerville Centerville jo 33 DP $0.90 I I LD EE we ow Bae soos 12, Butte 215| 253] 224| 244) 222) 231) 217) 243 13, Butte 179| 201) 170; 206) 187| 180] 189} 174) 198 14, Butte.. 96} 101; 104/ 99] 86} 86] 107}. 92 85 15, Parrott....- 201| 169] 209! 167) 147; 165) 207| 156 166 16, Meaderville 190/79] 197' 75] 67, 82) 192] 73] 68 17, Meaderville -. 112! 62) 116 60] 56 69] 111! 61! 59 18, South Butte 142| 176] 161| 161] 144) 157] 163] 150] 151 19, Blacktail.....-.-- 28) 32) 31/ 33) 24) 26) 23/ 45] 29 20, Centennial Brewery 86) 76} 84} 78 67! 68 85) 71) 71 21, Rocker ..........- 93) 25) 89) 27; 26) 25) 82) 27) 26 22) Burlin 144) 63] 142] 60) 55] 63) 142] 55] 57 23, Silver Bow ..--..--- 31) 23) 13} 291 19} 18} 11) 18] 19 24, Silver Bow Junction 25, Gregson’s Springs* ...- 26, McCune’s Wood Camp .. 7 Gulch.......- ‘| “3| “tol 3) 12} 9} =o} SS} 0 38 Norton Gulch ‘| ie 3} 16 14) 5} Soo} sata] 29) Feeley....--.- } 9} a6] 10) «16) «15| 17] 9] 15] 47 30, Divide. . 31, Melrose .- 82, Soap Gulch. 83, Clipper Mine........- 34, Butte and Gallatin R. R. io 5 5 “Camp No.1.......-- 3} 171) 5] 171} 171) 171} 3] 171) 171 3, 266), 768/3, asi, 7533, Aad, 474/83, 86713, 45413, 522 | | * No polls held. 744 SENATE ELECTION CASES. \ s Copy of correct returns from clerk of county board of canvaasers—Continued. For members of the legislative assembly. = ee le te ele ote a eal eis 1a Bg ar bo Aig S ik, | le ./e3|-e/s 4 oO. Precinct— &} - S Sle S| 8] Bag |o$/2s/n2 a5 | As aa |B] |es/ee|SS|e8 (Se iss ae e es /5|a|-3 aa |Se| & lag [Sa (22 las | og |b2| #2 |=3 (2h a |g |" oP | AR] 8 lad|a [oO |F ole | 3 BH |e : 5 la [ele jo |? [EB la je je 4 |EI/E No. 1, Walkerville 193 202} 225] 206] 227] 216] 195} 222) 199) et 7 225 9: 2, Walkerville “17, Meaderville. ... 18, South Butte -.. 19, Blacktail ...... 23, Silver Bow .--- 24,Silver Bow Junction ..... 25,Gregsons * 27, German Gulch. 28, Norton Gulch.. 29, Feeley ....--... 30, Divide ......... 31, Melrose........ 32, Soap Gulch .... 33, Clipper Mine .. 34, Butte and Gal- latin R. R., Camp No.1...) 171 3) 171 3) 3) 171) 3] 171 3 3] 2 Q]..-.|-.--) 171 3, 4423, 395)3, 43213, 855), 167/3, 330) 825), 508), acs, 174l3, 358), 12 1) 1/8, 482 * No polls held. ‘TERRITORY OF MONTANA, “ County of Silver Bow, 88: “T, Charles F. Booth, county clerk of said county, do hereby certify that the above and foregoing is a true and correct abstract showing the result of the election and . votes cast for State senator and members of the legislative assembly of Montana, in Silver Bow County, Mont., on the 1st day of October, 1889. ‘In witness whereof I have hereunto subscribed my hand and affixed the seal of said county on the 31st day of October, 1889. “ TSEAL. | “Cuas. F. Boots, “ County Clerk of Silver Bow County, Montana.” “Jn addition to the evidence of Booth, we have the admission of the Territorial board of canvassers, in what purports to be their official finding of the result of the election, that this copy of the abstract of the returns from Silver Bow County, so cer- tified to by the county clerk, was before the said board when they made their said find- ing, and that no other or different abstract of returns from said county was before them; and to said copy of said abstract was attached, according to the affidavit of Booth, as before stated, a copy of the judgment, of the court declaring the duty of the county board to include precinct 34 in the abstract of votes of said county to be absolute, ‘‘and that the returns, including said precinct, constitute the true and cor- rect result of said election.” (8) That notwithstanding the premises, the Territorial board of canvass, consist- CLARK AND MAGINNIS VS. SANDERS AND POWER. 745 ing of the oy, the secretary of state, and the chief justice of said Territory, all being of the same political party—the Republican—made their finding, dated the 4th of November, 1889, which, so far as concerns Silver Bow County, is as follows: “TERRITORY OF Montana, “County of Lewis and Clarke, s: “We, Benjamin F. White, governor, Henry N. Blake, chief justice, and Louis A. Walker, secretary of the Territory of Montana, the duly appointed and authorized canvassing board designated in the act of Congress approved February 22, A. D. 1889, providing for the admission of Montana as a State in the Union, and also under and by authority of ordnance number two, passed and enacted by the constitutional convention of the said Territory, do hereby certify that the above and foregoing is a full, true, and correct abstract of the votes cast in said Territory at the election held on the first Tuesday in October, A. D.1889, as appears by the duly certified returns from the counties named, and as counted and canvassed by us this the 4th day of November, A. D. 1889. ‘‘And we further certify that, having duly convened as such canvassing board on the 31st day of October, A. D. 1889, the same having been the thirtieth day after the close of said election, and having received no duly certified returns from the county of Silver Bow insaid Territory, we duly appointed and commissioned Benjamin Web- ster a special messenger to proceed forthwith to the said Silver Row County and to demand and receive from the county clerk of said county a properly certified copy of the abstract of the votes cast in said county at said election as canvassed and declared by the proper canvassing board. “That the said messenger, Benjamin Webster, duly appointed as aforesaid, did pro- ceed to the said Silver Bow County and did demand from the county clerk of said county the duly certified copy of said abstract of votes as aforesaid, and thereafter returned to Helena and made his sworn return that the demand for said abstract was by the said county clerk refused. “Being, therefore, without any proper copy of the abstract of votes cast in Silver Bow County, and having exhausted the authority given by the statute in endeavor- ing to obtain the same, it now becomes our duty to ascertain and declare the same trom the best sources of information obtainable. “We have before us the official certificate of Charles F. Booth, county clerk of Sil- ver Bow County, showing that a certain number of votes were cast for the differ- ent candidates in that county in the different precincts thereof, naming each of them and the number received by each candidate in each precinct, and including the 34th precinct as having voted at said election. We also have before us an official notice signed by Mr. Booth as county clerk of said county, stating in effect that the board of canvassers in said county met as such on the 14th day of October, 1889, and did then and there canvass and count the vote of Silver Bow County and declare the result thereof, and that they did not count, but did reject as false, fraudulent, and void, all of the votes reported as cast and counted in election precinct No. 34 in said county. ; “No other’or further action having been had by the canvassing board of said county in relation to the canvass of the vote therein, we conclude that the true result as canvassed and declared must be found by eliminating from the list of votes cast, as certified by County Clerk Booth, the vote of precinct 34, which was rejected by said canvassing board, as stated in the certificate of said county clerk, and which shows the true vote of Silver Bow County to be as follows: Votes. For the constitution.........--.-. 3, 962 Against the constitution .....-.--- 467 For Representative in Congress: Thomas H. Carter ...-.....--- 3, 566 Martin Maginnis ............. 3, 456 For governor: Thomas C. Power...-...------ 38, 444 Joseph K. Toole .......---.--- 3, 610 For lieutenant-governor: John E. Rickard........-.---- J. H. Conrad .--..------------ 3, 408 For secretary of state: Louis Rotwitt....-...-------- 8, 445 Joseph A. Browne .....------- 3, 458 For attorney-general: W. Y. Pemberton ....--..----- 3,521 Henri J. Haskell ...----.--- 3, 381 Votes. For State treasurer: R. O. Hickman ............... 2,502 Jerry Collins .........-..----- 3, 404 For State auditor: Thomas D. Fitzgerald ......-. 3, 453 Edwin V. Kinney ...-..-..--.- 427 For superintendent public instruc- tion: John Gannon ............---- 38, 202 James R. Russell ......-...-.. 3, 650 For chief justice supreme court: Henry N. Blake ........-..... Stephen De Wolfe For associatejustice supreme court, seven-year term: W.M. Bickford............... 746 Votes. For associate justice supreme court, five-year term: Frank K. Armstrong....------ 3, 432 Edgar N. Harwood ......----- 3, 346 For judge district court, second judicial district: Levi J. Hamilton .......------ 3, 475 John J. McHatton.......----- 38, 334 For clerk of the supreme court: George F. Cope..-.-.--------- 38, 317 William J. Kennedy ..--.-.--- 8, 454 For state senator: Charles W. Goodale .......-.. Daniel J. Hennessy. ..--..---- For members of the legislative assembly: SENATE ELECTION CASES. Votes. For members of the legislative assembly—Contiuued. Peter R. Dolman ..--...---.-- Alphonso M. Dusseault Henry L. Frank John W. Gilligan .......-.---- Frank H. Hoftman ....-.--.-.- Joseph Hogan......-..--.---- James H. Monteath.......-..- Albert G. Noble ........------ John J. O’Meara .......------ W.J. Penrose ..---.---------- William H. Roberts ...... .... Leopoln F. Schmidt .......---. Newell J. Scott .......-.22.-- Thomas Sturtridge -.........- Absalom F. Bray ....--------- 3, 356 William Thompson .....- Joseph K. Clark..........-... 3, 582 Abraham S. Yoder...-....- Thomas F. Courtney ..-.-.---. 3, 235 Wm. C. Riley.--...-....-.---- A.M. Day ..---.-.-------- +--+ 8, 303 William Scanlon ............. “That the foregoing is, and the same is hereby found and declared to be the result and atrue and correct statement of the votes cast at said election held on the first day of October, A. D. 1889, in Silver Bow County, Montana, according to and in strict conformity with the abstract of votes made and certified to by the duly and legally constituted board of canvassers of election returns for said county at said election.” ~ " * * * * * That in obedience to the peremptory mandate of the court, and in conformity to the law declared by said court to be in force, the county clerk of said Silver Bow County issued to the relators, the five members of the house of representatives found to be elected by the abstract of votes made by the canvassing board of said county, their certificates of election. Like certificates of election had been, it is said, issued by the clerks of the several counties to those who appeared by the votes of their respective counties to have been elected members of said house. (9) It is established by sworn testimony that has not been impeached or contro- verted that the election on the Ist day of October, 1889, at said precinct 34 was from beginning to end conducted in a public, open, peaceable, fair, and impartial manner, without intimidation, fraud, or »ndue influence exercised toward anyone, and that after the closing of the polls the counting of the votes was done fairly and correctly, and duly certified according to law upon the blank sheets furnished by the proper authority for that purpose; that the tally sheet and returns from said precinct con- tained a fair and correct report of the votes and ballots cast thereat; that these returns were duly delivered by one of the judges to the county clerk in a sealed envelope, and was by him laid before the county canvassing board; that they were regular and in due form upon their face appears by the copies in the printed record laid before your committee; that the frivolous character of the objections which were made by partisan counsel] to the regularity of these returns is apparent when it is seen by the record that the first and principal objection insisted upon was that in signing the returns the names of the judges were not written opposite the word “ Attest,” printed on the blanks used, and that the names of the clerks were written after and below those of the judges, thus: “ Certified by us this 2d day of October, A. D. 1889. “ Attest: “Ww. A. PENNYCOOK, “JOHN MORRISON, “WILLIAM O’REGAN, “ Judges of Election. “THOMAS 0’KEEFE, “A.M. ANDERSON, “ Clerks of Election.” the law directing that the returns should be certified by the clerks and attested by the judges. Another principal objection urged before said canvassing board to their receiving and counting said returns was that the sealed envelope containing the same was delivered to the county clerk by one of the judges in person, instead of being mailed at the nearest post-office, as directed by law. CLARK AND MAGINNIS VS. SANDERS AND POWER. (47 The only other objection made to the returns on their face was that the lists of persons voted for and the entry of the number of votes received by each appeared to be in the handwriting of one of the judges, instead of in that of one of the clerks. After these objections to the regularity of the returns and apparently as an after- thought five or six ex parte attidavits were introduced as to certain alleged occur- rences at the polls and the counting of the votes, none of which arose to the dignity of supporting even a suspicion of fraud or invalidity as to the couduct of said elec- tion at said precinct 34. _ Reference is here made to the amazing character of these objections, not because, in the opinion of the undersigned, the Senate, in determining this case, is engaged in a discussion of the grounds of decision of a board or tribunal invested by law with a judicial function in the premises, for no such function, in the opinion of the undersigned, belonged to this county board of canvassers, but in order that the des- perate nature of what seems to the undersigned to have been a conspiracy to thwart, the expressed will of the people of Montana, by the suppression of votes honestly and lawfully cast, may be displayed to the Senate and the country. - (10) That by the constitution of the State of Montana the senate consists of six- teen members, and the house of representatives of fifty-five. In one representative district there was a tie vote, and no election was had to supply the vacancy, thus reducing the whole number of representatives to fifty-four and the total of the joint assembly to seventy. That in obedience to said constitution the governor of the State of Montana, on the 11th of November, 1889, issued his proclamation convening the legislative assembly to meet at Helena, the seat of government, on November 23, 1889, and by a subsequent proclamation, dated November 22, 1889, he designated the court-house in Helena as the place where the said legislative assembly, ‘ comprising the persons holding and presenting certificates of election from said county clerks, shall meet.” That the said court-house had been, under the laws of the Territory of Montana, the place for the meeting of the Territorial legislature. That on the said 23d day of November, the day for the convening of the legislative assembly, the gov- ernor, in a letter of instruction to the custodian of thesaid court- house, directed him to admit to the same every person claiming to be a member of said assembly. Pursuant to the said proclamations on ihe said 23d day of November, 29 persons claiming to be members of the house of representatives, and all having certificates of election from clerks of counties, met at the said court-house at the time fixed by the constitution, and, being a majority of the number of representatives prescribed by the constitution, proceeded to organize as the house of representatives. The title of 24 of these as members of the house is not disputed; the remaining 5 claimed to be lawfully elected and entitled to sit as members from Silver 3ow County. Thirty other persons, claiming to be members of the said house of representatives, on the finding of the Territorial board of canvass, but with what certificates thereof is not clear, met at a building called Iron Hall, in the said city of Helena, at the time fixed aforesaid, and also organized as the house of representatives. The title of 25 of these as members of the house is not disputed. The remaining 5 claimed to be lawfully entitled to sit as members from Silver Bow County. There is no dis- pute as to the membership or organization of the senate. Two of the claimants for admission as Senators to this body, Messrs. Clark and Maginnis, were elected by a joint assembly of one-half of the members of the senate and all of the members of what may be called the “‘court-house” house of repre- sentatives, and their election is certified to the Senate by the governor of the State. But his certificate lacks the attestation of the secretary of state and the seal of the State, as required by the act of Congress. The other two claimants, Messrs. San- ders and Power, were elected by a joint assembly of one-half of the members of the senate and all of the members of what may be called the ‘‘ Iron Hall” house of rep- resentatives. Their said election is certified to the Senate by the secretary of state, with the seal of the State attached. But there is no certificate of the governor, as required by the act of Congress, and the secretary of state isnot authorized by said act to certify, but only to attest the certification of the governor. The question, therefore, for the Senate to determine is which of these two sets of five persons claiming to be entitled to sit as members of the house of representatives were lawfully so entitled. The undersigned believe that an unbiased consideration of the facts above stated will fully justify their dissent from the majority of the committee and should pre- vent the Senate from adopting the resolution reported. The power conferred by the Constitution on the Senate to ‘judge of the elections, returns, and. qualifications of its members ” is exclusive and judicial, and in its exer- cise the Senate acts judicially. The immediate constituency of a United States Senator is the legislature of the State which he represents. His credentials must purport to be a certificate that he was chosen by the legislature. : ; ; The act of Congress prescribes that this certification shall be made by the gov- 748 SENATE ELECTION CASES. ernor of the State, under the seal of the State, and shall be countersigned by the secretary of state. Such a certificate is received by the Senate as prima facie evi- dence of the due performance by the legislature of its constitutional function to choose a Senator and of the title of the person named therein to a seat in this body. In the absence of such certification the Senate, in pursumg further its judicial inquisition, must inquire for itself whether the claimant has been duly chosen by the legislature of the State. In so doing it must seek to satisfy itself, first, that the body assuming to choose a Senator is in fact the legislature of the State, and, second, that it has actually and lawfully chosen a Senator. In deciding the first branch of this inquiry in this case the Senate will be relieved of all difficulty in deciding the sec- ond. A legislature must be taken to mean, for the purposes of such an inquiry and in the sense of the Constitution, ‘the law-making power of the State.’ The body . capable of making laws for the State is the legislature, both in its literal and tech- nical sense, a8 was decided by the Senate in the case of Potter vs. Robbins, Taft’s Election Cases, page 83. When the Senate finds such a body duly organized in both branches, capable of enacting laws and 1ecognized as such in the State and by the other departments, further inquiry is useless and inappropriate. The body authorized to choose a Sen- ator is found. The Senate can not in such a case make inquisition as to the title of the sitting members of such a body in order to invalidate its legal character or impinge in the slightest degree on the exclusive right of each branch to judge of the elections and qualifications of its own members. 3 It is not believed that there is any difference of opinion in the committee upon this proposition, or as to the doctrine announced by the majority of the committee in the Rhode Island case just alluded to and reaffirmed by the undersigned, that ‘‘when the sovereign will of the State is made known through its legislature, and consummated by its proper official functionaries in due form, it would be a danger- ous exertion of power to look behind the commission for defects in component parts of the legislature or into the peculiar organization of the body for reasons to justify the Senate in declaring its acts absolutely null and void,” and “that contested elec- tions in the popular branch of Congress, where the people exert in their primary capacity the right of suffrage under various limitations and restrictions in the choice of Representatives from certain prescribed districts, open a much wider field of inquiry and investigation than a like contest for a seat in the Senate, which is a body wholly federative in its character and organization, and whose members hold their appointments from and represent the Staies as political sovereignties.” But the difficulty comes in cases like the present, where there are two bodies claiming to be the legislature of the State, or, to come more closely to the facts of the present case, when there is a single and legally organized State senate and a dual organization of the house of representatives, neither of the houses so organized hav- ing a quorum of members without counting those whose title is contested and right to sit denied by a like number in the other house, claiming to lawfully represent the same constituency. If either house had a quorum outside of such disputed membership, then the Senate would be concluded from any attempt at further inquisition. Such an attempt on its part would be an interference with the highest judicial function in the premises, the exclusive jurisdiction of each branch of a legislature to judge of the election, etc., of its own members. : But as confessedly neither house has such a quorum, then, unless the Senate shall decide that none of the claimants before it come accredited by a body competent to act as a legislature, or so recognized as such by the other departments of the State government as to make it de facto the legislature of the State in the sense of the Con- stitution of the United States, from necessity the Senate must pursue its inquiry as to which is the true and lawful house, outside the doors of either. In conformity to the doctrines already stated in this report; and to the safest pre- cedents and best traditions applicable to the premises, the undersigned believe that the Senate in prosecuting its inquiry, after leaving the doors of both alleged houses, must, under the facts and circumstances appearing in this case, seek the first for an officer or body on whom the law devolved the duty of ascertaining the result of the election and of certifying the result, and then ask what action has been had by such within his or its legal duty and powers, andespecially inquire for any judicial decision on the question of disputed powers and duties, made prior to the time fixed for the convening of the legislature, because the facts and circumstances of the case as they stand admitted in the record bring us to this position: That, conceding the proposi- tion of the majority of the committee, that the Territorial board of canvass was the paramount authority to canvass the returns of the county board as to the votes cast for representatives, and that we must first look to see what credentials members of the legislative assembly, or those claiming to be such, have from this canvassing board, yet it seems ancontrovertibly true that the Senate must inquire and judicially CLARK AND MAGINNIS VS. SANDERS AND POWER. 749 determine, first, what are the legitimate powers of the said board under the act of Congress and the ordinances rate pursuant thereto, and the principles of law appli- cable in the premises; and, second, what this board has assumed to do (comparing its acts with its lawful authority); and, third, what binding effect its proceedings as set out in the record should properly have upon the Senate in determining the question before it. Proceeding to this inquiry, we find that this Territorial board of canvass was con- stituted, by the eighth section of the enabling act and by the fifth section of ordi- nance 2 of the convention, to ‘‘canvass the votes so cast (for or against the consti- tution), and declare the result;” that while the said enabling act, in its twenty- fourth section, provides ‘‘that the constitutional conventions may by ordinance provide for the election of officers for full State governments, including members of the legislature and Representatives in the Fifty-first Congress,” it is silent as to the manner in which said election shall be had, thereby-authorizing the said conventions to prescribe the details as to manner and methods of conducting the same. Accordingly, the said ordnance 2 of the convention, in its sixth section, provides that such an election for State officers, including members of the legislative assem- bly, should be held on the first Tuesday in October, 1889, and then in section 8 as ollows: “Eighth. The votes for the above officers shall be returned and canvassed as is provided by law [that is, law of the Territory], and returns shall be made to the secretary of the Territory and canvassed in the same manner and by the same board as is the vote upon the constitution.” It will be observed that while the said board are to canvass the votes cast for or against the constitution, and to declare the result, it is expressly directed, in the matter of the election of representatives, to canvass only the returns from the so-called oe canvassing boards, and the express authority “‘to declare the result” is omitted. s Whatever view is taken of the extent of the implied authority asserted for said board to make some finding or statement of their transaction in the premises, the fact that express authority ‘‘to declare the result” was given in the one case and withheld in the other can not be without significance in considering the powers of said board in regard to the canvass of the returns from the county boards, of the abstracts made by them of the votes cast in their respective counties for representa- tives. : It is perfectly clear, in the opinion of the undersigned, that both the so-called county boards of canvass, under.the general laws of the Territory, and the Territorial board of canvass, under the provisions of the ordinance prescribing its duties in regard to the election of representatives to the legislative assembly, had none but ministerial duties to perform, and was invested with no judicial functions whatever. A judicial authority of so high and important a nature as to stand between the electors and the result of their ballots, ought never to be taken as conferred other- wise than by express enactment of law, and in the opinion of the undersigned it never has been. By the general laws of Montana the county boards of canvass (of whose powers and duties more hereafter) were only authorized to make abstracts of the votes cast in the several voting precincts, and the returns which alone .the Territorial board is authorized to canvass, are these abstracts. So that it would seem too plain for argument that the only duty of the said board in the premises was to aggregate and tabulate as a matter of arithmetic these abstracts, where, as in the case of the office of representative of Silver Bow County, the vote of the county elects the officers, the only duty would plainly be to verify the arithmetical processes and thereby confirm the return. When, however, the officer is voted for throughout the State, a large duty is devolved upon them, to aggregate the returns from the several counties that it may appear who of those voted for for the same office, has the larger number of votes. There is surely no authority here, allowing even the greatest latitude to the doctrine of implication, to canvass anything but returns from the county boards, or, more mon- strous still, to omit to canvass some returns, or to canvass where there are no returns, or to canvass part of a return. If authority were necessary for a conclusion so obvious, and so conformable to the practical common sense of a self-governing people, our judicial reports.are full of decisions, commencing far back in our history and coming down to recent times, making an unbroken current of authority for the proposition, as stated by Judge McCrary in his work on elections, at section 226. He says: “It is well settled that the duties of canvassing officers are purely ministerial, and extend only to the casting up of the votes and awarding the certificate to the person having the highest number; they have no judicial power.” At section 229 of the same book, he says: “The doctrine that canvassing boards and return judges are ministerial officers possessing no discretionary or judicial power, is settled in nearly or quite all the States.”