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And then the question will arise upon the postponement.

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Mr. FERRY. of Connecticut

Unknown

FERRY

Connecticut

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I only ask my friend there to remember that the original document is a memorial in which this paper is embodied. It never bas been separately presented. but is only presented as part of the memorial in which it is recited. that is all.

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Mr. CONKLING

Unknown

CONKLING

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03061873.txt

I never have seen it.

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Mr. FERRY. of Connecticut

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FERRY

Connecticut

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I am glad that the Senator from Connecticut asked this question so clearly. and then answered it so precisely. The honorable Senator from New York is in error when he supposes that these credentials of Mr. Sykes form simply a part of the memorial which has been printed and laid on our table. The certificate of Mr. Sykess election. which is the record of the journals of both houses of the legislature. is an independent paper. in due form. placed in the custody of the Senate. and out of it temphiarily by the action of the Senate. It is not part of the memorial of this gentleman before the Senate. although in the printed paper before us. in a more convenient form. it has been so embodied for the purpose of information. But the paperwriting. duly certified. of the election of Mr. Sykes by the legislature of Alabama. as proven by the record of the journals of those two houses. is a paper duly authenticated. separate and distinct in itself. in the custody ofthe Senate. and only parted with for the purpose of having it printed for the use of the Senate. Those are the facts.

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Mr. BAYARD

Unknown

BAYARD

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03061873.txt

Mr. President. when we speak of the credentials of a Senator. what do we mean ? I take it. we mean the legal evidence of his election provided by law. The law provides what shall be the legal evidence of a Senators election. as well as it provides what shall be the legal evidence of title to a piece of land. It is only primafacie evidence. You can go behind it. you can inquire into any questions that go to the validity of the election afterward. but the law provides that there shall be certain evidence which shall prime facie entitle a man to his seat. What is the object of that law? To prevent just such a scene as we have hero this morning. to prevent this confusion. The evidence of a Senators election. as required by the act of Congress. consists of a certificaLe by the governor of the State. attested by the secretary of state. and verified by the seal of the State. Those are the three evidences of the election of a Senator. and they are all present in the credentials of Mr. Spencer. Now. sir. there was some purpose in making that enactment. and it ought to have some weight. Now. what is the propositionI The proposition is to put a mere memorial on the same footing with the credentials provided for by law. to give to a memorial signed by Mr. Sykes the same effect as you give to the governors certificate and to the seal of the State of Alabama. We have no right to do that. I take it. There must be some overriding reason that would induce us to give to the mere memorial of Mr. Sykes the same effect that you give to the certificate required by the act of Congress. It seems to me that Mr. Spencer is entitled to be sworn in. He bas got the evidence required by the law. If there is good ground of contest. that can be acted upon by the Senate. can go before the committeo. and it is very proper for this memorial of Mr. Sykess and his argument by counsel to go before the committee for full examination. but if you keep Mr. Spencer out until the whole question is settled. you in effect say that the evidence required by law is to have no greater effect than the more memorial of Mr. Sykes. the object of the law is entirely defeated. there is no rule of action. and no Senator is entitled to his seat here until all questions have been examined. and a man can come forward without any legal evidence at all. and contest a certificate in due form. Now. sir. what is the rule in the other end of this Capitol? The member who.has the certificate takes his seat. and. if there be good ground of contest. that ground is subsequently considered. and the same rule should prevail here. The Senator from Connecticut [Mr. FnmRY] talks about the credentials of Mr. Sykes. What are they? Nothingbuthis socalled certificate. It is true hero is a statement signed by 4It. H. Erwin. president of the senate. Mike L. Wood. secretary of the senate. LowisM. Stone. speaker of the house of representatives. Ellis Phelan. clerk of the house." I am told that. in point of fact. these officers are not the officers they represent themselves to be. but that is immaterial. So far as any evidence of a senatorial election is concerned. these officers are all unknown to the law. They do not give their certificate any more effect by saying they are president of the senate. and so on. than if they attached merely their names without those titles. They are not credentials in the sense of the law. We know of but one kind of credential. What is that ? The certificate of the governor. attested by the secretary of state. and verified by the seal of the State. That creates a ptmafacie title. and if that primafacie title can be overcome by a more memorial. then the effect of the act of Congress is entirely destroyed.

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Mr. MORTON

Unknown

MORTON

Unknown

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03061873.txt

Mr. President. the position of the Senator from Indiana amounts to this: that in no case can a person be seated in the Senate unless he has credentials certified by the governor and by the secretary of state. I say that that is not sound doctrine at all. Suppose the governor should refuse to sign the credentials suppose. for instance. that there had been but one body in Alabama calling itself a legislature of that State. that it was the true and constitutional legislature of that State. that it had elected George E. Spencer to be Senator from that State. and either the governor or the secretary of state had refused to sign the credentials. according to the argument of the Senator from Indiana he could not take his seat. we would keep him oat of his seat according to that argument for the want of the mere technical evidence of his election. Why. sir. is the Senator to be told that the commission is iorely the evidence of an election or appointment. and is not the election or appointment itself? A man is electe to an office or appointed to an office before he gets his commission. and his commission is merely evidence of that election or that appointment. and I can show the Senator case after case in which an act done by an officer without a commission at all. after his election or appointment. has been held to be valid. because there was no absolute prohibition to his action in the absence of his commission. The commission is merely evidence. but according to the Senators argument it is the allsufficient and indispensable thing. and unless it is precisely in the terms prescribed by the act of Congress. no matter how duly a man has been elected Senator. no matter how perfect his right to a seat in this body may be. he cannot take his seat. A reeusaut governor or a recnsant secretary of state can keep him out of his seat. I protest agairt any such doctrine as that. But. again. the Senator from New York in effect asks us to judge of the effect of this paper before it is road to the Senate. That is the result of his proposition. Here are certain papers evidencing the action of what is called the legislature of Alabama. Whether it is a correct legislature or not is another question. and. before those papers are read. the Senator from New York insists that they shall not be read as credentials.

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Mr. THURMAN

Unknown

THURMAN

Unknown

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I hope my friend will pardon me there for a mcment. I do not see how he can say that. Inasmuch as I do not object to their being read. and nobody has objected to their being read. and inasmuch as we must learn what they are from hearing them read. really I do not see how any harm can arise on the fact that I say they should not be read as credentials. My friend said. a moment ago. that I insisted the Senate should act upon them without knowing what they wore. Nobody objects to their being read. If my friend chooses to regard them as credentials before he hears them read. and I choose not to do so. I do not see how anybody suffers from that conflict between us.

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Mr. CONKLING

Unknown

CONKLING

Unknown

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03061873.txt

That is exactly what made me wonder that the Senator got up and stopped the reading. which was about to take place. by entering a solemn protest that they should not be read as credentials.

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Mr. THURMAN

Unknown

THURMAN

Unknown

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I did not stop the reading.

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Mr. CONKLING

Unknown

CONKLING

Unknown

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03061873.txt

They would have been read immediately but for the Senator rising. If he wishes merely to express his own opinion that they are not credentials. certainly there is no objection to that. but if he wants any action ofthe Seate to affirm his opinion. then that makes it a very much more serious matter. Now. sir. I can very well conceive that we would admit a Senator upon precisely such a paper as that. I can very well conceive that if the governor or secretary of state of a State should refuse to discharge his duty to execute the proper credentials required by the act of Congress. we would seat a man upon precisely such a paper as that presented by Mr. Sykes. Suppose there had beci no other legislature than that which elected Sykes. suppose there was no question about two legislatures. but that had been the only legislature. and then the governor of Alabama. or his secretary of state. had refused to sign the credentials. so that Sykes was obliged to appear here with nothing hut a certificate of the legislative procuedinge. who is there here to say that he would not be seated? There is not a man inthe Senate who would say any such thing as that. But what is the aso of talking about technicalities or sticking in the bark? We know historically. we know by the papers. we know by the action of the executive department. that there have been two bodies in the State of Alabama. each claiming to be the legislature. that one of those bodies has elected Mr. Spencer. the other body has elected Mr. Sykes. We know that the very governor who has signed the credentials of Mr. Spencer was counted into office by the senate of that body which elected Mr. Sykes. Those are facts that we know. and those facts make a case in which I think it is very proper that both sets of papers should go to the Committee on Privileges and Elections. whenever it shall be appointed. and be considorodby that committee. The only doubt I have in my mind. and I state it frankly. because I will not do any injustice in this business. is this: whether the certificate of the governor does not make out. prinsafacie. that the legislative body which he certifies for was the true legislature. That is the only serious difficulty there is in the whole case: whether or not. looking at the act of Congress. we are not bound to assume. preafacis. that that body which the governor certifies is the legislature. is the legislature. until the contrary is shown. But. sir. I do not know that the Senate has been quite so much given to beinggoverned by tochnicalities or presumptions. It was not governed by any such thing in the ease of GOLDTHWAITE. but kept him out of his seat nearly a year. although he had the most perfectly regular credentials. and that not upon any certificate of the speakers of the senate and house of representatives of Alabama. not upon any official certificate of the election of anybody else. for it was not pretunded that anybody else was elected-

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Mr. THURMAN

Unknown

THURMAN

Unknown

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03061873.txt

Allow me to.ask the Senator if he thinks that the .action of the Sengte in that case was right ?

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

Certainly not. it was very far from being right. but the Senate did it. notwithstanding. It was a monstrous wrong. in my humble judgment. but the Senate did it. notwithstanding. Upon a mere vagaboud petition that came here iu that case. signed by Tom. Dick. and Harry. who had no official position at all. or uest of whom had not. and affirming. not that the legislature which elected Mr. GOLDTnWAITE was not the true legislature. but that there had been frands in the election among the peopl6 themselves. that gentleman was kept out of his seat for nearly a year. I give his colleague credit for saying that he was no party to that wrong. But. Mr. President. the real question before the Senate is simply this: we know historically. and have evidence before us. that hero are two legislatures. The only question for us is simply. does the governors certificate establish.prima fae. that the legislature he certifies for isthe true legislature. so that that must be recognized? That. in view of the whole facts of the case. is really the true question before the Senate.

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Mr. THURMAN

Unknown

THURMAN

Unknown

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03061873.txt

Mr. President. in my opinion. as the Senator from Ohio seems to admit. we must take the governors certificate. it being regular. and there being no question as to whether he is the governor of the State. as making a primafaee ease. It is admitted that there is no precedent against it. except in the case of GOLDTaWrre. and it is also admitted that the action of the Senate in that case was an error. The case is much stronger now than it was before the passage of the law of l866. That law prescribed what should be the evidence upon which the Senate would act. and. of course. when we have that evidence. we have a primafaecie case. I believe that is the universal rule. that when the law prescribes what shall bo evidence in a given ease. and you have that evidence. you have at least apriniafacic case. It may or may not turn out to be true. but it is always prima facie if the law is complied with. The law is substantially complied with in this certificate. It is regular. it is signed by the governor. it is evidence of the facts therein contained. so far as the action of the Senate is concerned. until there shall have been investigation. The authorities are all in favor of the representation of a State upon a pricafaeie case. and not denying the State the right of representation. They are. I believe. entirely uniform in that respect. with the exception suggested by the Senator from Ohio. namely. the GOLDTcWArra ease. which is repudiated as a precedent. The importance of that rule is illustrated by the memorial of Mr. Sykes. which I hold in my hand. The errors into which we might be led by departing from the rule are very plainly indicated by this memorial. The president of the senate. who makes tme certificate in this memorial. is R. H. Erwin. His name appears to it as president of the senate. It appears by the saine memorial that on the 25th day of November. 1872fen. Alexander MeKinstry was in like manner inducted into the office of lieutenantgovernor of said State. to which lie had been elected by the voters of the State. and so announced by LieatenantGovernor Moren. upon an opoening and publising of the votes by him. by official act. in the praseo of a mciority of the members of the general assenibly assembled at the capitol of the State. at :Montgomery. Then there is a provision of law which is quoted in this memorial. thatThe lieutenant.gomernorsball be president of tli senate. bit shall veto only when the senate is equally divided. and in case of his absence or impeachment. or when be shal exercise the oiler of governor. the soeato shell choose a president pro tmyors. Now. upon the face of this certificate. here is the absence of the lieutenantgovernr. It is true that the senate had power to fill the office in case of his absence. if he did not appear there. but he was the regular lieutenantgovernor.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

Will the Senator allow me to interrupt him for a moment ?

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Mr. THURMAN

Unknown

THURMAN

Unknown

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03061873.txt

It just occurs to me that there is another case bearing on thisRxesos casewhere General RANsox presented perfectly regular credentials but was not allowed to be sworn in.

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Air. THURMAN

Unknown

THURMAN

Unknown

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03061873.txt

I am informed that Mr. Parsonsand this is oily information that comes to me from history. it has been referred to hereis speaker of the house of representatives of Alabamab today. and there is no contest inAlabama about it. there is only one legislature sitting there. and Mr. Parsonss name does not appear to this certificate. Observe the inconsisteneies in which we are likely to be placed. Neither of the gentlemen signing this certificate. as 1 a1 informed. is acting either as president of the senate or as speaker of the house of representatives now. If we go inw this history. here are important facts. I only state this to show the difficulties which we shall encounter if we discard the evidence which the law prescribes. The Senator says there are other Zases. The other cases referred to. I think. refer to the qualification of the members. When the objection refers to the personal qualification of the member. it must be made in iinins. If he is personally disqualified. that is something that must be acted upon in lisntnc. but if the Senatorelect presenting himself is qualified. and the record that is presented is the record provided by law. he has a complete prima.facte case. In Mr. RANSOMS case and the others. objection was made. I presume. on soime point with regard to their qualification.

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Mr. STEWART

Unknown

STEWART

Unknown

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0. no. not a particle.

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Mr. BAYARD

Unknown

BAYARD

Unknown

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03061873.txt

Well. in this case there is no such recordevidence before uas can destroy the plain primafecic case. There is but one legislature in Alabama now. Thatis a wellrecognized. historical fact. if we arc going to refer to that. and neither of the gentlemen who sign this paper is presiding over either branch of that legislature. Those who were presiding over the rival legislature are now presiding over the legislature as at present organized. showing that the organization that elected the Senator who presents the regular credentials has been preserved. If. then. we go into the matter beyond aprimafacie case. on the evidence before us. we shall simply be led into doing an act of injustice without any probability that the official investi ration will not result according to thepnimafiacis ease.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

I think there is a mistake existing in the Senate in regard to the practice of referring credentials which are fair upon their face to a committee for investigation. I have taken some pains to look into the precedents. The first case that I find is one reported in the American State Papers. of Kensey Johns. a Senator from Dala. ware. He presented himself as a Senator with proper credentials. appointed by the governor. The.question arose as to the authority of the governor to appoint. A motion was suedo to swear him in. That motion. with his credentials. was referred to a select committee. who reported. on the 20th of March. 1794. that he was not eligible. the governor having no power to appoint him in consequence of a meeting of the legislature having intervened since the vacancy. and having adjourned without making an appointment or election. That is one precedent to which I call the attention of the Senator from Nevada. which went to the authority of the body appointing him. the party claiming a seat. The next case that I find is that of Lanmau. of Connecticut.

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lr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

If my friend will allow me. did it not appear upon the face of the paper. in other words. did not the date of the attestation and the date of the appointment show that it was in vacation ?

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Mr. CONKLING

Unknown

CONKLING

Unknown

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03061873.txt

It did not. A motion was made to swear in Mr. Johns. That motion. with his credentials. was referred to a committee. -who some weeks afterward made a report. which the Senator will find in the American State Papers. volune one.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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Shall I interrupt the Senator if I call his attention to the distinction between that case and this ?

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Mr. STEWART

Unknown

STEWART

Unknown

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No. sir.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

The appointment by the governor. under the Constitution. can only be made in exceptional cases..and those cases plainly appeared in the law. It is matter of law when it can be done. Then if the ease presented is contradicted by the law. it is not a primafaie case at all.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

The credentials in Johnss case were regular. There was nothing upon the face of his credentials to show any irregularity. He brought regular credentials from George Read. the governor of Delaware. He presented himself with those eredential. as regular in every respect as the credentials presented hero today by the gentleman claiming to be Senator from Alabama.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

My point is that there was something on the face of the credentials to show that the governor had no power to appoint. and therefore it presented no prisafaeie case.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

There was nothing on the face of the credentials to show any want of authority any more than in this case. The memorial of Mr. Sykes here shows that the body which attempted to elect Mr. Spencer was not the legislature of Alabama. and although the credentials of Mr. Spencer may be regular. so were the eredentials of Mr. Johns regular. You had. therefore. to go behind the credentials. The committee of the Senate did so. and Mr. Johns was refesed his secat.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

The Senator has not got my point. The question was presented on the Constitution itself as to the power of the governor. If there was anything in the Constitution or laws appearing before us that Alabama had not at the time a right to elect a Senator. then the certificate would not make anrimafacie case.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

I cannot understand the distinction that the honorable Senator attempts to make. It is a distinction. it seems to rue. without a difference. lie says you cannot question the power of that body which has the anthorityto appoiet when the credentials are regular. Now. I say that Johnss ease does show regular credentials. that lie was appointed by the governor.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

But the Constitution showed that the governor hbd no authority to appoint in that case.

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Mr. STEWART

Unknown

STEWART

Unknown

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03061873.txt

How was that to appear except by an investigation by a committee? Suppose in this case the committee should report that the body that elected Mr. Spencer had no authority to elect a Senator. You want to bring him in upon his credeutials that you say are regular. I say the Senate refused to bring a man in with regular credentials. whose credentials showed no vice in his appointment. The Senator will have several other cases before I get through. The next case I find is that of Mr. Lanman. who was appointed to take his seat on the 4th of March. 1825. A motion was made by Mr. Holmes. of Maine. to swear him in. That motion was referrd. with his credentials. to a select committee. and they decided that the governor had no right to appoint hin.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

Upon what ground ?

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Mr. MORTON

Unknown

MORTON

Unknown

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03061873.txt

Upon the grond that a legislature had intervened. but that did not appear bn his credentials.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

Lot me suggest to my friend that the power of appoiutment on the part of the governor expires when a legislature intervenes. and the intervention of a legislature was a public event

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Mr. MORTON

Unknown

MORTON

Unknown

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03061873.txt

What difference does that make upon the question we are now discussing as to the primafaei evidence of credentials ? I understand my honorable friend to take the position that when credentials. which are regular upon their face. are presented here. it is the right of the person presenting them to be sworn in. The Senator says it was a fact of which the Senate should take judicial notice. Yes. and I will show him that the Senate also takes judicial notice of the legislature which elects. If you take judicial notice of the point that the governor has no authority to appoint. why will you not take judicial notice that the legislature which elected was divided into two bodies. and that one represents the majority and the other the minority of the duly elected members of that legislature V Why will the Senate take judicial notice of one fact and not of the other ? But the simple question comes back whether the Senate has not refused. for want of authority in the appointing power. to recognize credentials which were regular on their face. and where there was no contestant. I say that both in Johnss case and in Lanmaes case that was done. I now come to a still later case. On the 27th of February. 1837. Ambrose H. Sevier presented his credentials as a Senator from the State of Arkansas. Those credentials were regular on their face. It was proposed that he be sworn in. and it was refused. His credentials were referred to a committee of the Senate. who. on the 8th day of March. 1837. reported in his favor. and he was only admitted after the report of that committee by a vote of 26 to 19. I now come to the case of Mr. Stark. of Oregon. in 1862. There was no doubt that the governor had the authority to appoint Mr. Stark. There was no doubt that Mr. Stark was eligible. There was no doubt that a vacancy existed and that the power of appointment was vested in the governor of Oregon. There was no doubt that the credentials were regular. Mr. Stark. on the 6th day of January. appeared in this chamber and presented his credentials. The distinguished Senator from Maine. now no more. (Mr. Iessenden.) objected to the reception of those credentials. and he presented a memorial. made up of the very loosest hearsay statements of streetconversations prior to Mr. Starks election. and asked that that memorial. with the credentials. be referred to a committee. and they were referred to the Committee on the Judiciary. An elaborateroport was made by the committee. proposing to admit Mr. Stark to his seat. Upon that report a lengthened and able debate took place. and Mr. Stark was not admitted until a month after his credentials were presented. What stronger case could be presented than Mr. Starks?

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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[ believe there was a question as to his loyalty.

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Mr. STEWART

Unknown

STEWART

Unknown

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Yes. sir. it was a question as to his loyalty. that is. it was said that biefore his appointument. upon the streets irk Portland. he had given vent to some loose exclamations. undera high degree of excitement. that the South ought to succeed. and speeches of that sort.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

I do not wish to interrupt the Senator from Kentocky. but merely to make a suggestion to him. He just asked. what stronger ease can there be than that of Mr. Stark V Is he aware of the case of the Senator from Texas. [Mr. TLrnLaoi ?]

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Mr. SOHURZ

Unknown

SOHURZ

Unknown

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03061873.txt

No. sir. I am not.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

Then I will state that case after the Senator from Kentucky is through.

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Mr. SCHURZ

Unknown

SCHURZ

Unknown

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03061873.txt

It seems to me that the case of Mr. Stark is a case directlyin point. Hie was eligible. the governor had a rightto appoint. his credentials were in duo form. and yet he was excluded. I will refer to what some of the republican Senators. now in this chamber. said in that debate in regard to the right of the Senate to prevent an applicant from taking a seat when there was reason to believe that the authority under which he claimed his seat was invalid. either on the ground that the governor did not have the right to appoint. or that he himself was not qualified. that it was the right and duty of the Senate. upon mere outside statemonts. to refer the case to the committee. Now we come to the case of the Senator from Alabama. I read from the proceedings of the Sonata on the 4th of March. 1871: The name of GtlRce G0LsnrwTxrrE. of Alabama. was called in order in the above list. when. Mr.SLiEIiMAN. Before the oath is administerad to Hon. Gonoc GOrwATWATR as Senator from Alabama. I desire to present the memorial of fortyfive members of the senate and house of representatives of the legislature of the State of Ala. bama. containing statements of fact which. if true. would nt jastify the taking of the oath of offie at this time. I aslc that the -emorial he rand. and that the credential. with the memorial. lie on the table for the present until the Judiciary Committee is formed. with a view o their reference more. Until that is done.." object to the oath being administered. The credentials were read. and then the memorial was read. and both were laid on the table until the Judiciary Committee was appointed. There was no contest in that case. Nobody doubted that Judge GolarjnrmnrE was eligible. and yet that memorial was read as a matter of right and laid upon the table with the credentials. and both were referred to the committee. and Judge GOLaTnWAInE kept out of his seat for months. I thought that waswrongiu GOLDTWAITaE case. Why? Because. for the second time in the hiatory of the Government. it was attempted to go back and inquire into the component elements of tl legislature by which Judge GOLDTiwATrr had boon elected. I deny any such power to the Senate. Whenever that doctrine becomes established. the States of this Confederacy ought to say. "We elect A B a Senator by our will and by the grace of the United States Senate." If the Senate of the United States can go back and inquire into the elements of the legislature of a sovereign State. who in doe form. according to law. elect a man who is quaified under the Constitution to take his seat in this chamber. then they become judges of the roturns of the respective legislatures thus elected. and they themselves have the absolute power to nullify any election of a Senator. Seiotors. snh a doctrine does not apply to one State alone. it applies to all. and as the guardians of the sovereignty of the respective States which we represent. I beg and entreat you to consider well before you attempt to settle into precedent and into usage such a principle as that which makes the sovereign States of this Union the mere howers of wood and drawers of water at tire behest of the dominant majority. whatever it may be. of this chainher. Therefore I thought that the action of the Senate in that case was a wrong. but I would have acquiesced in a moment if there had been a separate and divided legislature. or if I had had judicial notice upon which I could rely that there was some vice in that body which elected Judge GOLITRWAITcsomo doubt in regard to the organization or regularity of the legislature which elected himnot of the component elements. but of the fact whether Judge GOLDTHWAITE was eligible. or whether there was a legislature at all. or as to who had received the vote of a majority of the legislature of the State of Alabama. Thei we come to the case of the Senator from North Carolina. [Mr. R. s eOe.] We know that he presented his credentials. we know that they were reltrrred. we know that the gentleman who contested his seat. and whose memorial was before the Committee on Elections. had not the slightest semblance of eredentials. he did not claim to have them. and he did not claim to have received a majority of the votes of the legislature of the State of North Carolina.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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03061873.txt

Who is that?

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Mr. CONKLING

Unknown

CONKLING

Unknown

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03061873.txt

The man who contested Mr. RANSOMs seat.

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Mr. STEVENSON

Unknown

STEVENSON

Unknown

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My honorable friend will pardon me. that case he certainly cannot state as bearing on this. Mr. Abbott insisted that long anterior to RaNSoms election he had been elected. and the question was whether there was any vacancy for Mr. RaNso or anybody else to fill. and he insisted upon the English rule which would seat a minority candidate. because Vance. who had received a majority of the votes. was. as lie insisted. ineligible to the place . therefore he came to us. alleging that that seat already belonged to him. and. if so. of course nobody could be sworn in. and there was no room for credentials. That question was very different from this.

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Mr. CONKLING

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I understand the question. The distinguished Senator from New York perhaps did not hear what I said. I said. not that Mr. Abbott did not claim the seat. but that Mr. Abbott did not claim that he had a majority of the legislature. Mr. Abbott claimed that because Vance. who did get a majority. was ineligible. according to the English rule he was entitled to the seat. but did Mr. Abbott have any credentials ?

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Mr. STEVENSON

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If my friend willpardon me. I begtoremindlhim that Mr. Abbott had. as he said. not a contemporaneous election. but a previous one. so that he denied there was any vacancy at all.

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Mr. CONKLING

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I admit that Mr. Abbott said so. but I come btck to the question which is the pertinent one in this debate: did Mr. Abbott present credentials. antI. if he 4id. whom were they from ?

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Mr. STEVENSON

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Will my friend allow me to suggest to him that the credentials of Vance were never presented to the Senate. never went before the Committee on Privileges and Elections? Yaice was conceded to be ineligible. disqualified tnder the fourteenth amend-. ment. so that when Abbotts case was considered on acertificateof his election informal in character. yet there were no other credentials to oppose it. Afterward. when the ease of RAsoai came before the Senate. there was no question but what Raso.es credentials were in proper fori. hut it was held. in referring his credentials to the committee. that while the credentials would show that he was prima faels elected. yet the credentials did not show that there was a vacancy. that the question of vacancy was not to be determined by credentials. and of course that was right.

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Mr. MORiON

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Now. Mr. President. do not let us escape the point in issue. We are discussing the effect and import to be given to credentials. We are discussing how far a man presenting his credentials has a right to be sworn in. Will the Senator tell me what eredentits Mr. Abbott had? I never beard of any. If he ever presented any. it escaped my knowledge. I have never yet known that Mr. Abbott. who icontested the seat of the present Senator from North Carolina. who came here with regular credentials. or who contested Mr. Vances seat. ever had any credentials. He had noile. I do not wish to prolong this debate. I only rose to cite several precedents. beginning as early as1794 and running down to 1871. which bear upon the present question. I have given you several cases which arose when this Senate was in the zenith of its glory for intellect. for experience. for patriotism. where Senators with regular credentials. and with a party majority on their side. were refused the right to be sworn in. but the motions to swear them in. with their credentials regular on their face. were submitted to a committee of the Senate. and in several eases the Senate refused to let those gentle-

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Mr. STEVENSON

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I want to suggest to my friend that I believe. until 1866. the law of Congress did not fix what should be the evidence of a Senators election. that was left to each State before that time. but in 1866 Congress passed a law regulating the elections of Senators. prescribing how they should be conducted. determining what should be the prismafacio evidence of the right to a seat. That was done in 1866 for the first time. Before that it was left to each State to elect Senators in their own way. and furnish such evidence of their election as they themselves might prescribe.

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Mr. MORTON

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I will cite the Senator from Indiana to n very celebrated case from his own State. where the seats of both Senators were contested upon a question in regard to the mode of their appointmeat. Although. in that caso the Senators whose seats were contested were admitted upon the presentation of their credentials. there are gentlemen now in the chamber who resisted that action. and who made just the argument that I am new making. and who cited many of the precedents that I have cited against Senator Bright and Senator Fitch. elected by the legislature of Indiana. and having the regular credentials. signed by the governor. taking their seats in this chamber. and that was prior to 1866. Mr. President. I think it is much more desirable that we should have some uniform rule. and make that an established rule for fuitre action and for future guidance. Then we shall know exactly where we all stand. Now. for this Senate. having refesed to admit Mr. GOLDriiwaTma. today to admit Mr. Spencer. would seem to be not a regu]ar or a uniform rule of action. I care very little what the decision is. except that we shall adhere to a fixed rule of principle and make the precedents unvarying. I admit that you can inquire into the authority of the appointing power. whether a man has been regularly and legally elected. whether lie is qualified. and whether he was elected in the mode pointed out by the law. That you can do. bat I deny. as was attempted to be done in GOLDTIWATS ease. that yon can look into the elements of the legislature that elected him. If the Senate thought it proper to refer to a committee the credentials in the case of Mr. Stark. regular on their face. eligible. as he was. his right unquestioned. with no contestant. and to require a report before they would admit him. and if they did the same thingin the case of Judge GOLTvWAITE. I think it shouldbe done in this case. and that we should adhere to that principle.

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Mr. STEVENSON

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Mr. President. when I called for the reading of the credentials of Mr. Spencer. of Alabama. I had no idea that the call for the reading of those credentials was to call up a debate of the length and magnitude of the one that we have heard. I objected to the motion made by the Senator from Delaware. as an amendment to thi cell which I had the honor to make. The- Senator. if my memory serves me. asked that the credentials. and papers accompanylug them. of Mr. Sykes. be also read.

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Mr. ALCORN

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The Senator is mistaken on that subject. I asked that the certificate of election of Mr. Sykes might be read at the same time. The Senator misunderstood my language.

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Mr. BAYARD

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Then I stand corrected. It may have been that I took my impression from the fact that at the time the Senator from Delaware presented what he called the credentials of Mr. Sykes. he presented them in the form of credentials and accompanying papersa. being a memorial. and they were placed before the Senate in the form of a memorial to the Senate. Now. sir. what are the facts in this case? The Senator from Kentucky who has just taken his seat calls the Senate of the United States to account for the course the Senate has seen proper to pursue heretofore upon the question of admitting Senators. and he arraigus the Senate for the course pnmued towards the Senator from Alabaim . and he complains that the Senator from Alabama ws for a long time kept out of his seat in the Senate when lie had the proper credentials here which should have entitled him to be sworn in. Strange to say. the Senator uses that as an argument today why the credentials of Mr. Spencer. from the same State of Ahabama. are not sufficient to entitle him to be sworn into his seat. Sir. each and every complaint that the Senator from Kentucky makes is an argument in truth in favor of having Mr. Spencer. the Senator from Alabama. sworn today upon the credentials that he presents. Under the law of 1866 Congress undertakes to lay down what shall he necessary to entitle a Senator to take his seat. that he shall have the certificate of the governor of the State. and that certificate of the governor comes here entitling him. as primafaeie evidence. to enter upon the dischargeof his duties. It is like a patent to a piece of land in an action of ejeetment. Yo offer the patent. and it is primfoate evidence that the title is good. You may go behind that patent. however. and show that it was fraudulently issued. that it was improperly issued. and that the consideration upon which it issued has failed. or any other reaon that attaches to the legality or the validity of the patent. but that is a question which goes to the jury. So. in this case. if there be any who offer objections to the irimafacie case presented. thitprimafaeie evidence which Congress I as said is sufficient for them for the time being. the matter goes to the Committee on Privileges and Elections. to be there examined and reported upon. and if the proof goes to show that the Senator who has been sworn in is not entitled to his seat. that his cectfioato of election was procured by fraud. or that the legislature undertaking to elect him to the seat was not a legislature under the forms of the constitution of the State. the committee can so report. Suppose the majority was not a proper one constituting a quorum of each body of the legislature: that is a question to be considered before the Committee on Privileges and Elections. The reference goes to the whole questiongoes to the foundation of the subject. Here we do not go any further than simply the certificate of election. under the law of the State from which the Senator comes. attested. as it is. by the secretary of state. Now. sir. what are the facts with regard to this ease ? Only one governor. so far as I know. presides in Alabama today. There is but one governor in the &tate of Alabama certified as elected at the last election. There has been no contest in Alabama with regard to the governor of the State. and we all agree to that. It is knownthe Senate hasjudicial knowledge efthe factthat there were what purported to betwo legislatures there. We know.judicially- that the legislature recognized by the governorof the State is that legislature which elected Mir. Spencer to his scat in the Senate. and we do judicially know the fact that that legislature vhich elected Mr. Sykes to a seat in the Senate has ceased to exist. that it has been absorbed by the lcgislature which elected Mr. Spencer . that the governor presides tocnay as he did at the time this certificate was given . that the president of the senate and the speaker of the house of representatives of that legislature are the same officers today that they were when the certificate of election was given . and we do judicially know the fact that there is no other legislature in Alabama today that contests the authority of this legislature now. and we do j adicially know the fact. and I commend this to the attention of the Senate. that the supreme court of Alabama has decided that the legislature over which the governor presides today is the legislature of Alabama. and that its acts are entitled to full faith and credit.

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Mr. ALCORN

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Will the Senator allow me to ask him a question I Does he say that the legislature that now exists in the State of Alabama is the same legislature. composed of the same members. that elected Mr. Spencer ?

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Mr. SAULSBURY

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I will not say that they were. for I understand that there has been a remodeling of the legislature. bat I understand the fact to be thata quorum of each branch of that legislature that elected Mr. Spencer to the Senate is today in each branch of the legislature recognized as the legislature of the State of Alabama.

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Mr. ALCORN

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I ask the question. is it the same legislature. composed of the same members. that now is the recognized legislature of Alabama. that elected Mr. Spencer to this body ?

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Mr. SAULSBURY

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I will not say that it is. nor will I say that it is necessary to show that it is. It is sufficient for me to show that the legislature of Alabama had existence as a body. organized at the timse this election took place. and. if called upon to show that fact. that it is the same today that it was then. That there are persons in this legislature today who were not in the legislature at the time the election took place. is no reason why the credentials can be assailed. even if that question were before the Senate. It may have been changed. some members may have died. others may have been chosen to take their places. and it may be the fact that the legislature has changed many of its members . but the organization that was in existence at the time this certificate was given is precisely the same now. with the same president of the senate. with the same speaker of the house of representatives. that there was at the time when this election took place. But remember. Mr. President. that I take the position that. in order to entitle the Senator from Alabama to be sworn in. it is only necessary. under the law of 1866. that he present his certificate of election certified to by the governor of the State of Alabama. and that upon that he has made out a primaface case and is entitled to be sworn in here. and I say that all other questions with regard to the organization of the legislature. and the facts with regard to the legislature of Alabama. are proper to go before the Committee on Privileges and Eloctions. and there a hearing can be had. and that committee can go to the foundation. if need be. it can examine the credentials of members of the legislature. as I hold. and it can examine (as they did upon the question of the State of Louisiana) who compose the legislature. and whether it is a legal body or not. But there is no one here today to controvert the fact of the legality and constitutionality of the legislature of Alabama. no one hero to contest with Mr. Spencer the tact that there is no other body than the legislature that elected him now in session in the State of Alabama.- Bat at the same time that you protest against Mr. Spencer being sworn yon complain of the action (if Congress. that it has heretoforeo refused to swear in Senators who came. as he has come. with a certificate of election in their hands. and asked to be sworn in.

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Mr. ALCORN

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On a wholly different ground. though. if the Senator pleases.

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Mr. STEVENSON

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I understand the ground to be the same.

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Mr. ALCORN

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I have been very unfortunate. then. and perhaps it is my fault that the Senator did not comprehend me. I undertook to say that the reason why we voted against the majority upon the application of Judge GODrTWArrE to be sworn in. we insisting that he should be and the majority denying that right. was not upon the subject of credentials at all. not upon the authority of the logislature at all. not upon the ground of eligibility at all. but because in that action the memoriaists attempted to go into the composition and eligibility of members of the legislature which elected him.

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Mr. STEVENSON

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Then. I ask. what is the state of the case today? The memorialist here comes and attacks the organization of the legislature that the governor certifies elected Mr. Spencer. The governor of the State of Alabama certifies that Spencer was elected. lie certifies it as governor of the State of Alabama. and the secretary of state attests it as the secretary of state of Alabama. and thou hero comes a memorialist who undertakes to attack that organization and show that that legislature was not constitutionally organized. that in truth and in fact it was not the legislature of the State of Alabama. There may be a distinction between the cases. but if there is I cannot observe it. It is on account. doubtless. of my obtuseness. but the distinotion lies just so far down that I am net able to reach it as a point of fact. If it is chaTrgodand I am not here to say that it is not truethat the Senate in the past has assumed. during the period of revolution. an inquisitorial character. and that it has refused to admit Senators on credentials for reasons pertaining. if you please. to the question of the reconstruction of the States. to the question ofelegibility under the fourteenth amendment. I am one of those who stand here prepared to leave all those questions behind. I am prepared to throw these acts of the Senate behind. and saythat they are not entitled to consideration as precedents. but that we shall put our back to the past and our faces to the future. and that we shall recognize nothing which partook of the asperities or the aniaosities of the war as a reason why we should not go back to the recognition of a plain enactment of the Congress of the United States. The law of Congress provides that this shall be sufficieutto entitle a Senator to recognition here upon the floor of Congress. Mr. Spencer comes and holds in his hand that which the law of Congress says is sufficient to entitle him. under aprimafaco case. to be sworn in today. There stand those outside who believe that his election is improper. not according to the laws of Alabama. and not in accordance with the constitution of the State of Alabama. I express no opinion on that subject. I hold myself hero without any opinion on that sabject. Lot that question go. in its regular course. to the Committee on Privileges and Elections. let it there be investigated. and when they report on that question let the Senate take such action as that committee may recommend. or such other action as the Senate may regard as proper in the premises. But in the mean time I ask that Alabama be not deprived of her right to representation upon the floor of the Senate. She is entitled to this. She has sent here. by the governor. accompanied by the proper certificate and seal of ollico. one who proposes to take today the place of Senator and hold it until he is shownnot to he entitled legally to hold that office. or to hold it until it is shown that another is entitled to it above himself. and then the Senate can net upon that. question. not as it is called today to act on a primafacie ease.

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Mr. ALCORN

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Mr. President. the committee of the Senate charged with the duty of waiting upon the President of the United States and informing him that a quorum of this body has convened in pnrsuauce of his proclamation. have discharged that duty. The President of the United States said that. as at present advised. he would have no communication to make to the Senate except certain executive communleations. wehich ho would communiento by message at an early day.

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Mr. HAMLIN

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I ask the unanimous consent of the Senate to offer a Senate resolution. and I will preface it by the remark that supposing the Senate will be here but a few days. and in discharge of the duty -imposed upon me at the last session as the chairman of the Committee on Privileges and Elections. and in pursuance of an understanding had just before the adjournment. I now offer the following resolution. and I shall ask the Senate tomorrow morning to procoed to its consideration. I ask that it be read. The chief clerk read the resolution. as follows RecoIved. That ALEXANDER CALDWELL Was net dilly and legally elected to a set to the Senate of the United States by the legistatrO of h State of Kansas.

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Mr. MORTON

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I offer another Senate resolution. which I ask to have read for information. I desire to make a single remark in regard to it. I am not going to ask for its passage now. The chief clerk read as follows: Resolved. That the Secretary of the Treasury be instracted to report to the Senate. at its next session in December. the amiount of imports from the provinces composing the Dominion of Canada to the United States for the years Iit1 and 1812. asl the amount of exports to the some provinces from the United States for the same years. and the amount of imports an I exports btweon the United States cod the same provinoce for the two years preceding the terainatien of the reciprocity Ircaty.

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Mr. MORTON

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I shall ask to have the resolution laid on the table now . but if the session shailbe prolonged for some days. I shall ask the Senate to take it up from the table. for the purpose of enabling me to submit some remarks upon the question of the relations between the Dominion of Canada and England and this country. The ViCEPRESIDENT. The resolution will be laid upon the table. SrNATOr URO1st ALABAMA. The Senate resumed the consideration of the credentials of George E. Sponcr as Senator from Alabama. the pending question being on the motion to postpone. made by Mr. BAYARD.

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Mr. MORTON

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Mr. President. I believe the pending question is on the motion of the Senator from Delaware to postpone. I rise mainly to say that I hope that motion will be agreed to. For one. I am not prepared to enter upon the discassion -of the main question. which seems to be already under consideration. and still los prepared to enter upon the deelsion of it. I think the question a grave onesnech graver than has yet been intimated. I think it involves. as prosented already. not only the right of Alabama hore in the Senate. but the right of every other State. not only the question of Mr. Spencers or Mr. Sykess title to a seat here. but the question of the title of every one of us to a seat here. I say I ea not prepared to enter upon the discussion of the subject. because. nitil today. I had not seen the papers which I now find upon my desk. and which are upon the desk of every other Senator. I have had no opportinity to look into them. I have not had an opportunity to took into the precedents. I confess I have not a very profound regard for legislative precedents. I fear I lack some of the veneration which I ought to cherish for the conduct of those who have gone before us. The Senator from Maine said just now that he was inclined to think that the precedents were almost uniformly those which sanctioned the administering of the oath to him who has been called today. and has been called heretofore a primafacic case. and then trying the question of his title afterward. Ile admitted that there might be soine precedents to the contrary. The Seitor from Kentucky has cited a very formidable array of precedents. many of which seem to be to the contrary of the rule as asserted by the Senator from Maine. My distinguished friend from Nevada shakos bis head.

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Mr. HOWE

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Not one of them. except GOLDr1eWAInES case. is at all relevant. I think that is in point.

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Mr. STEWART

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I am speaking. I trust. with becoraing diffidence. I know where I am speaking. I said many of the cases cited by the Senator from Kentucky seemed to be in conflict with the precedents asserted by the Senator from Maine. Of course. if the Senator from Nevada had not shaken his head. I should not have come to any deftnite conclusion upon the subject until I had heard him. but it is very certain that. having shaken his head. I shall not come to any such conclusion until I have heard him. I myself. without any very accurate recollection. and certainly with no extensive reading. am profoundly impressed with the notion that you can find precedents in our history. brief as it is. which will sanction anything that any one Senator hero wants to do in this particular case. and almost anything that the whole of us could do. if we were to do our best or or worst. I say. sir. I am afraid I have not as. much veneration for precedents as I ought to have. I profess to have some regard for law. when I know what it is. and I moan to pay it decent respect. Now. as I understand the law. the fundamental law. the supreme law. it accords to the State of Alabama the right to he represented -here by two of her citizens. not by any two who happen to come here. but by the two who shall be selected for that purpose. by whom ? Not by the governor. not by the secretary of state. but by the legislature of the State. Only the legislature of the State can select those Senators. I am told that an act of Congress was passed some six or seven years ago. declaring what the governor of a State should do in the case of the election of a Senator. that the governor of the State should certify to that fict. that the secretary of state should countersign. and that the seal of the State should be employed on the credentials of the Senatorelect. That is all very proper. I concede. but after all. I think. on reflection. we shall conclude that not the signature of the governor. nor the signature of the secretary of state. nor the seal of the State. nor all these added.will make a Senator. I take it these little ceremonials are very inconsequential unless they are preceded by an election by the legislature of the State. But Senators say. I have heard several of them say. that the conjunction of these three little thingsthese two signatures and that sealeonstitnta what they call a primafaeie case. or primafaecic title to a seat. and. as my friend fromMississippi [Air. ALcost l expressed it just now. it was like a patent to a piece of land. wherever that patent was shown it made a primafaci ease of title. not conclusive. Well. suppose it is so. suppose these signatures and this seal are the equivalent sf a patent to a piece of land. the court which is trying an action of ejectmeut never says. when a party shows a patent. " Hero Is aprimafacie title. and now I will put the party holdingthe patent in possession of the land. and then I will try the question of title to it afterward." The judge receives the patent. to be sure. as a piece of evidence. but before he passes judgment upon the right he hears what can be said in contradiotion of the patent. But it is argued here. as I understand. that we should pay so much respect. so much deference. to this prinaface title. as it is called. that we should actually award the seat upon it.

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Mr. HOWE

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No.

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Mr. CONKLING

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Then I have misunderstood the course of the debate. I have understood that because one individual brings here this certificate signed by a governor and a secretary of state. or purporting to be signed by a governor and a secretary of state. and to have the seal. we were to admit the party holding that piece of paper to the seat.

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Mr. ROWE

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We only allow him to become the sitting member. the seat to be contested afterward.

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Mr. CONKLING

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Then. the proposition is that we allow him to become the sitting member. In my careless and loose way of expression. I said we should award the seat. The Senator says. "No. but allow him to become the sitting member. I suppose by that he is to sit. not in a seat. but somewhere else. otherwise we should award him the seat by allowing him to become a sitting Senator.

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Mir. HOWE

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My friend will pardon me. He is to be the sitting member pending the time when the Senate is engaged in awarding the seat.

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Mr. CONKLING

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I understood that limitation. and that is the trouble. We say we do not know whether Alabama sent this man here or no. but we say we will take him out of respect to form and make a Senator of him for the time being. Well. that would not be so very bad a thing if it were not followea by this other consequence. that we re. serve to ourselves the right to reconsider and reject his title to that seat after we have admitted him to it. after we have administered the oath to him which each one of us has taken. I was inclined to think myself that before we allow any man to take a seat here we ought to know whether he comes here as the representative of a State or not. and when we have examined that question and settled it. it seems to me that that is an adjudication. and I was inclined to think (and it was upon this point that I wanted alittle time for consideratiou)that neither this Senate nor a succeeding Senate ought to go back of our judgment. When sone man comes here. any man claiming to be the select man of a State. and presenting what you callprimafacie evidence of that fact. and when no man in the State says anything to the contrary. and no one else anywhere says anything to the contrary. I think you ought to administer the oath to that man. But if there is a question raised. if it is said that that signature of the governor is forged. and that seal of the secretary was stolen. or the impression ofit. or if it is said in any credible wayl that the man himself wps not eligible. if any fair question is raised upon the validity of this prinmfacie case. it has always seemed to me that the Senate ought to stop and determine that question. and when it was once adjudicated it was adjudicated for all time. This question was suggested to me very soon after I took my seat iu this body. when the case of Mr. Stark. from Oregon. was before the Senate. It was suggested very forcibly the other day. when a committee of this Senate proposed a resolution which. if I remember. declares in terms that a seas which has been occupied by a gentleman acting as a member. with %it the sanction upon him that rests upon every oneof youa seat -olhioh had been occupied for some yearswas vacant. I was led then to speculate. not to investigate. but to speculate in my own sniad how it could be that that seat to which a State had accredited one of its citizens by certain evidences of title upon which the Senate had passed. and had declared them sufficient.. was still vacant. I do not know that it can be so.

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Mr. HOWE

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May I ask a question I

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Mr. CONKLINO

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Certainly.

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Mr. HOWE

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The rule which my honorable friend is contending for. I submit to him. would not make such cases as he now refers to any fewer than they are. because in the case to which he alludes nobody contested. the Senator took his seat as he would under the rule which -the Senator thinks should prevail. and long afterward arose the matter which has been made the occasion of assault upon the Senators right to sit On the other hand. I submit to my friend. that if his rule prevails. ci at whenever a contest is notified to the Senate there is to be no sitting member until that contest is resolved. the Senate would virtually commit to every person in every State the right. by perhaps only aproforma contest. to hold in abeyance the right of the man who held the credentials. until in the lapse of time the committee of the body had been able to decide one way or the other the contested cases and to reach even the last ease. Now I conceive. and this is the only additional remark I want to make. that the inconvenience of such a role. the obvious greater secrity and convenience of the other rule. lies at the foundation of its adoption. and constitutes much of that foundation. If it be said thai when I come with credentials specific and described by the statute. I may sit down for the time being. sit down conditionally. with the right to all comers to unseat me if they can. no great inconvenience is likely to result. especially in the case of a contest in bad faith. but once say that no man whoo seat is contested shall ever become the sitting member until that contest ultimates. and I say it is a sort of reward offered. in all turbulent times of faction and party. for every man who would spite another or who would accomplish a purpose by it. to say. "I contest that seat. I present a memorial contesting it. and thus hold in abeyance the right of every member of the Senate. and every member of the House. if the rule could prevail there. until the appropriate committee could go through and decide all the - Cases.

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Mr. CONKLING

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Mr. President. I admit that the tribunal which passes upon the right of Senators to their seats. like the tribunal which passes upon your title to your homestead. like the tribunals which pass upon all rights of life. of person. or of property. may be wicked and may abuse the great powers reposed in it by the law. But. sir. we cannot get over the fact that the Constitution has vested in this body the prerogative of trying the right of its own members to the seats they claim here. You may abuse and trifle with that power. The Constitution. or those who made the Constitution. supposed you would be less likely to trifle with it than any other tribenal they had thought of. but if it is true. as it certainly is true. as suggested by the Senator from New York. that if you adopt the rule which I have suggested. the Senate may lend itself in some evil time. by delaying a trial. to the nefarious purpose of keeping an honest and rightful claimant outof his seat. then what?

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Mr. HOWE

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If my friend will pardon me. I put a case where the Senate not only acts in good faith. but with the utmost possible diligence. Here are seventyfour men . onethird of them come in at a time. Here is one Committee of Privileges and Elections. Every newcomer. every man who proposes himself to be sworn in on the 4th of March. finds himself confronted by a petition signed by some man saying. "I contest tlat seat." Now. the Committee on Privileges and Elections is to sit down and go shrough. with all the assiduity which it can employ. and decide these cases. and the man can only take his seat who holds the credentials. one by one. as each case is passed upon. Without the Senate being guilty even of negligence or delay. or consulting its own convenience. sitting day and night. and going as fast as possible. if such were the rule in parliamentary bodies. particularly in a body so numerous as the House of Representatives. where all the members cone in afresh every two years. it seems to me very great inconvenience would occur.

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Mr. CONKLING

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Let us see. I am. in spite of myself. being drawn into something of a debate here. whieb I did not mean. but let us see for a moment. Suppose that rule I have suggestedI do not insist upon it. I do not know that it is the right rulebe adopted. and snppose the Senator from New York should by and by be provided with credentials. and should offer them here. and suppose some man as malicious as myself should rise. or. not being permitted to speak tothe Senate himself. should send a memorial here. questioning the validity of those credentials. that being a malicious act on my part. an entirely groundless act. and suppose the rule to be adopted that those credentials and my memorial go to this committee. the very next morning they take up the credentials before the Senate meets. there are the credeimtials in the very form in which the law requires New York to speak. What opposes these credentials? The declaration of some unknown man offering no testimony whatever. a mere denial that those credentials are just and true. That is all. That is the case that the committee would have to pass upon. Now. does my honorable friend suppose that in that case the Committee on Privileges and Elections are going to deliberate through a whole session. through a whole Congress. through the official life of a Senator. before they pass upon that case. for when the Senate met the next morning the Committee on Privileges and Electionr. I take it. would report ? But if the case was not exactly that. if the outside protestant should make the committee believe that behind his protest there was evidence to be adduced and which could be adduced within a reasonable time. which would impair the apparently good title presented by the Senator. would it not be the duty of the committee in that case to wait a reasonable time to hear that evidence? In the mean time the consequence is very clear: New York would not have a Senator here to which she is cntitled. But suppose the committee or the Senate should j ump to the contrary conclusion and say "We will have Now York represented somehow. by somebody. and inasmuch as we do not know who it is that New York really wants to represent her here. but do know who has got thecertificato of the governor. and who has got possession of the seal of the secretary of state. we will take that man." You do not respect the rights of New York when you admit him to a seat here. on the contrary. you trample upon. you outrage. the rights of New York when. out of any respect for forms. you admit to a seat here as her representative aman whom she has not sent hero by the voice of her legislature. Clearly the right thing to be done is to admit the man selected by the State and nobody else. When a dispute arises who the man is. the question is whether we should try it before we admit anybody. or whether we should admit somebody and try it afterward. Let me say once more that I do not mean to insist that the rule I have suggested is the true rule. but it has always seemed to me that if the question was a now one. it is the rule that I should be very much inclined to insist upon. I do not know bat that we are precluded by precedents from adopting it. As I now regard it. if Ishould find myself forced by the strength of precedents to adopt a different rule. I think I should regret the fact.

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Mr. HOWE

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Mr. President. the Senator from Wisconsin [Mr. Hown] tells us that he is not in love with legislative precedents. neither am I. I think a great many things have been done which ought not to serve as a rule for our future action . but precedents after all are good things. sometimes. to shed light upon the reasoning of gentlemen at different times and under different circumstances. so they are in this instance. It has been said here that precedent is altogether against the reference to a committee of the credentials of gentlemen who. with regular credentials signed by the respective State executives. present themselves here for seats in the Senate. I find that recent precedents are almost uniformly the other way. In fact. since I came into the Senate I do not remember a single case where a seat was contested and where the credentials presented were considered of sufficient force to entitle him who presented them to a seat in the Senate during the contestnot one. Leot us go back two years. to the 4th of March. 1871. 1 find in the journal of the Senate the following:

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Mr. SCHURZ

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here submitted a motion that the oaths prescribed by law be administered Iy the VicePresident to Monot C. H.sreaT0. whose credentials as beatorelect from the State of Texas were presented on the 13th ofiuly. 1870.

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Mr. FLANAGAN

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Will the Senator allow me to make a statement in regard to Mr. HfvxLToe s casel

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Mr. MORTON

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Certainly.

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Mr. SCHURZ

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The Senator undoubtedly wants tobe correct in regard to the facts.

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Mir. MORTON

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I think the Senator is wrong in that.

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Mr. SCHURZ

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I am going to state. Afterward the legislature elected Mr. Reynolds to fill the vacancy.

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Mr. MORTON

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It was not another but the same legislature.

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Mr. SCHURZ

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And passedajointresolution declaring the election of Mr. FhuumToN for the long term to be void. The election was certified in the usual form by the governor. and the credentials came here in that way - that is say. the credentials were prepared. the governor certificae drawn out. but itwas not signed by him. through inadvertence. The governor telegraphed to the President of the Senate that he had intended to sign the credentials of General Reynolds. but his signature bad been omitted by inadvertence. When the question came before the Senate and the committee. it was considered just as if General Reynoldss credentials had been signed by the governor. so that it was one certificate of the governor against another certificate of the governor. and the question was. which of these two certificates should prevailtotally unlike the case we have here.

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Mr. MORTON

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It was never denied that Mr. IxAtiroc had been elected at the proper time. according to the law governing senatorial elections.

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Mr. SCEIURZ

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That is what the Senate found. but the legislature of Texas thought not. and both of them were certified by the governor

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Mr. MORTON

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I remember the case myself. It was a notorious fact at the time. and subsequently proven. that Mr. HAvm.TOxs credentials were signed by the governor. and Mr. Reynoldss were not. although I will admit that a letter was here stating that the governor would sign them.

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Mr. SCHURZ

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The precise point in the case was this: The legislature met before the State bad been readmitted to representation. It elected Mr. HAmrTON for the short term and for the long term. The same legislature again convened before the short term had expired. but after the State had been reorganized and the Senators admitted. and it was claimed. the State not having been admitted at the time. that the only election she could make would be the election for the short term to fill the vacancy. that it could not elect for the long term to commence after the State was admitted. I Lave the report of the committee here. Thoyheld that the fact of the State not having been admitted to representation when the election occurred was mi saterial. that it was the legislature elected next preceding the expiration of the term which was to choose the Senator. and that the act of admitting a State related back. and it stood the same as all other legislatures. just as a Territory would. and that it stood on the same ground. The point raised. however. was as to the power of that legislature to elect for a term that was to commence after the admission of the State.

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Mr. STEWART

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At any rate one fact is not questioned. and that is. that Mr. RAD1a1TON presented himself here with the regular credentials signed by the governor.

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Mr. SCHURZ

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The question was upon the State. and not upon the candid~te.

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Mr. CONKLING

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But the State was also regularly admitted into the Union when Mr. HAMILToN and Mr. Reynolds presented themselves.

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Mr. SCHURZ

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But it was not at the time of the election.

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Mir. STEWART

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A question was whether it could be treated as the Territories had been. where Senators had been elected by a territorial legislature. and their election had been held to become good when the State was admitted. or whether it did not fall within that category.. So the Senator will see it was not a question of credentials. not a question of election. but a question whether any power existed in the world to elect anybody.

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Mr. CONKLING

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Is there not a similar question connected with this Alabama case? I will not make an argument upon its merits. for I have to admit that I have merely glanced over this memorial. and am not sufficiently conversant with its statements to form an opinion satisfactory to myself. Neither will I adopt the rule of the Senator from Wisconsin. that whenever a contest occurs the gentleman who presents the regular certificate siould. trader all circumstances. be kept out of his seat until the contest is decided. but I do think that. where allegations are made putting his right to that seat gravely in question. he ought not to be seated on the esere ground of his credentials. One reason is the following: Nobody will doubt that the sitting member has a very great advantage over the contestant . that as longas the contest lasts he is practically a Seeator of the United Slates. casts his vote as one of the Senators of his State. drawa the salary of a Senator. and exercises a certain influence. that therefore it is his interest to draw out the contesa as long as possible. espcially if his case is a bad one. while. on the other hand. if. grave allegations being found against the candidate arnmed with regular credentials. we do not seat either contestant. bet keep them both out. it is the interest of both to advance and push on the contest as rapidly as possible. Whether in this instance the allegations are grave enough to keep out both. I am not now ready to affirm. and I suppose a nsejority of the Senate have not sufficiently looked into the matter. but I thinkit is not asking too much that we should make haste slowly in this case. just as we have done in mll others within my memory. that is to say. ullogatione being presented which some of us at least think are grave enough to keep the gentleman who claims the seat on theground of a regular certificate oat of his seat. we should. at any rate. be given time to stuly the subject until we can form. each one for himself. a clear judgment of the question we have to deal with. I hope. therefore. that the motion for a postponement will be agreed to.

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Mr. SCHURZ

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