Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1839-02-05
in the c6un;ics rf Brunswick. Grcrpsvi!c and Dinwld'
die for erection Of Senator aud for stated The


seat in The Senate CT Virginia and On The same dhy'
and after he received nOcr OF SCOTS intention 10 con
trst lie, by letter To the Governor, dated The In Ias
explained IN The report OF The Commliee) abandoned MS
claim the seat and resigned The same on the 6h DAY
of June. DR. Scott addressed letter 10 Tie Governor,
stating that lie contested the election and on e lo'
July the certificate of return was communicated 10 'he
Governor he Governor, for reasons stalled IN HIS Spe
cai Message declined 20 issue wit Ci election, anu nus
the whole case 10 the Senate Tor our aco
AID decision. =,
The first question Mr. Speaker which necessarily
p:escntS itself the consideration ol the Senate ls VIII"
tt the resi- gnatcn Of Col Mallory OF his right 10 scat
in the Senate al Virginia during the pendency OF con,
oT The same regularly commenced and prosecutor
By DR. Scott. did create such rGcaEcy as to authorize
the Governor To issue writ OF election during 'hs ie
cess of the General Assembly, will remark TO the &c
nate that under former Constitution and Laws, lhs
power issue writ Of election in all cases OF rdr"nfy
was vested alone in tie two houses OF the General AS
sembIy The 7lh section of that Constitution PROVIDES
that each house shall direct wrls OF election for supply
inn Intermediate vacancies The Governor then had mo
authority in any case 10 issue wit OF cleciioh UNI"
the adoption oi the amended Constitution. lie derives
his authority TO aCl from the 9lh section 81 The ID ai
Gle Of the amended Constitution and the laws made IN
pursuance thereof This section provides that each house
shaIl choose It's Speaker, appoint lis own OlnceTS,
settle its rules Of proceeding and direct WINS CT
election fer supplying intermediate vancanccs hu' II
racancirS shall either by dCah resi- gnnt0H dur
na the of the General Assembly, such wri!s may
be issued By the Governor under such egu ations ns
may be prescribed by laweach house shall Judge OF The
crcfion, qualification and returns Of its members, &C
Under this pro vision OF the Constitution this authority oil
the Governor confined two clear and palpaple cases
Of racancp occurring either b. death gmn0n dur
! ing the recess Of the General Assembly.
The general election law passed Immediately acr Tie
adoption n. the amended Constitution, By Legislature
composed in par, al individuals who had been members
! Of the C"nvcnliOn which framed the Conslutinn rX
pessy defines and explains this authority OF The 90
| ycrnor-lhr 18th section OF which Declares "tor cleo
ton Of 4 Delegate s, nator when rGcGnty sall &c
cur by dnh nHti0a during the recess U Inc ue
neral Assembly, ~rt or wrIs shall bc issued oy lhe
Governor; ard in all other cases OF vacancy such WIN
or wris shall BE- issued by the Speaker OF that House
whereof he was y member: but If the racGnry be oc-
casioncd by acceptance OF Office, the yrIl or wT's
shall not be- issued wIhou! The slecia order oil HE House;
thus giving c"tfmporaneous exposition oi 'he C.h
s,,u,Inn hy an express OF assembly, and carrying
out the intent ard meaning Of that INSTRUMENT, ~ &C.
carinr that the Governor is authorized TO act 0y IN
the tvo cases expressly slated. This authority OF The
Governor ministerial IN lis character: II IS not MScTe
tioaary. hecausr discretion whatever Is gwen 10 nm
under the Constitution. II Is not lHdtIdt, because e
Constitution expressly declares that the Senate alone
can Judge Of the ccctiGa. qualification and TtRE oil It's
members The authority, 'hen, OF the Governor is only
ministerial and limited expressly 10 the two cases sPec
fed; and whenever the c"cancy either by d0ih
or resignation, during the recess ct Tic General Assem-!
bly,. il is the hcundcn duty Of the Governor 10 issue
writs Of election. Whenever any person shall contest
the right Of The returned member TO the seat, The goth
section Of The election law provides Tor the prosecution
Of such right and the @7th section Of this law directs
the sheriff other officer conducting the election, 10
deliver certificate Of tie election 10 the Clerk OF the
Senate one day, at least before the succeeding
OF the General Assembly.
From, 4 review Of The provisions Of The Constitution
and Law, ask, has the resignation Of Col Mallory,
under the circumstances Of the case and pending Ihe
contest with Or Scot. created raf2aCy which author
lied the Governor to ill by wits Of election: FROM the
best examination aud reflection which have been
able TO bCs'uw upon the subject, ! cannot bIng nay
nd In y,. Is n n
Constitution; to sustain which 1t appears TO me, woG:d
be 10 make the Governor the jwdgc Of the very ques-
ton OF rHcGHrg which this contest between Colonel
Mallory and Doctor Scott was intended TO determine,
and in direct copirarenon 0! the express provision
of the Constitution, which makes The Senate the
tribunal 10 Judge Of The cCtiOn. qualification aud re.
turns Of mcmbrrs-aud III further violation Of the "a
article Of the Constitution which expressly declares,
that the Legislative Executive and judicial departure MS
OF the Government shall be separate ard distinct, 81 HAT
neither exercise the powers properly belonging 10 either
Of the others 1t would By assumption of power not
only delegated by the Constitution to the Governor,
but c1pres delegated 10 another branch Oh the Govern
ment.
would enquire. what are the rights Of n returned
member hen lis right 10 the seat Is contested: lie
individual who has received the largest number Of G"cd
votes is Of course elected. and entitled 10 his seat Nho
has the largest number of goOa vo;es, IS Tie very tact
whch this controversy is ln,eLtCd 10 determine The
certificate Of election VI the sheriff or other officer con-
dncnr TIC erctI) only TrNa fGcie evidence OF such
right. 10 be confirmed or reversed by the Srnale And,
whenever such seat is contested and the acquisitions OF
ito ar, n acsor,tv ccnnjrJ with no act Whatever o:
,h a,d oo,,nr "a, ,,,e,,i,on the Senate the ,irh,
of deciding The contest the Constitution having vtsie
~ w - ,r ,,a.,i,,, c.rd;d,,e no su.,,;r,d ard
u h ~ ;,.a 80 cnn,nacr, ,rL, =, H.. ~,
e ' n, ;,t Tho H., Gi,nc.s TLo, ,lc n,,.s
tg' ~ . t,, st i -, ,,snd c-c,, ,L, c.,iI:
y. VI. ,rd 'h o ., , cnr;cs,;ng candia, ;r.r;,cI
~ -, ,,n .Io,r, rI.,,II Ih,, Ills rirh, is ..;r,.
I;r md c,o,srsod ;ro, the nc,iod If Ibr eIrct;:n
w., .i:oi ,i,t, :, ,s,fec;.L md ry,ati;.h,d hv rLn
a'n ar 10 co,r.n uk:ch facis;,n v,n,1rd .hny
o'o'Io" ~ ',I H. .ra.a,c nn; 'co,ns,
, '""''5' I , 'l,i i a' ~ ~ = :. ,., % ''
un' Suc'i cunts "sS w CIV" ~ -,
nave o'1fe ie,a"ro I, I'VE rsss III
The senate H'"rc III" sole tlshl 10 IH"s' o. e rfn0D'