Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1839-01-24
General assembly of' Virginia
IN SENATE
THURSDAY, Jan II, 1888

The Petition of Edward ? Scot, in relation 10 the
contested eeclinn from the Senatorial Dis!tct com,
posed Of the counties Of Brunswick, DnwIdde aud
Greepsville:
First Resolution Of the Committee
"Resoircd, That in all of vacancy, occurring
during The recess Of the General Assembly, by fesgna
lion Of The returned member, whether The election oe
contested or mot the GoyerGur has the power, under
the md issue writ o! election Ia
SIMPLY the vacancy yet, under the circumstances o
ttiz case, il was wise end prudent to SUBMIT Inc mater
10 the decision Of the Senate
FIRST Resolution proposed by the substitute
shcsoircd as the opinion of this Committee, That The
resignation of James Is Mallory Of his right to scat 10
the Senate Of Virginia from the district CONFUSED OF
the of Brunswick Dinwidde ana Greehs'ihe,
during the pcUdency Of contest tor lie same, resu'nr
IL commence and prosecuted by EdwaTdP Scott, Esq,
did such a vacancy as 10 authorize the HoV
ernor of this Commonwealth TO issue writ OF election
during the recess of the General Assembly
Mr. NASH said, it might very reasonably be expected
by the Senate that rs he had submitted the substitute
for the reporl Of the Committee, he should 40" pro-
coed to state the which had influenced ms own
Judgment and had led him 10 differ with majority ni
The Committee upop the proposition involved m lher
first resolutions That in the performance Of this duly,
he should be some hat relieved from going as much mo
detail as he would otherwise have done, because Inc
preamble 10 the substitute Offered by him, not only con-
laned statement Of all the facts Of the case but gene
raj summary of the argument upon when he rene" u" us
adoption. This document had been printed, ana was
in the hands Of every member OF the Senate, and had
| doubtless been auenlively considered by them
But before proceeding The argument o the PROPOSE
ton more Immediately involves in this debate, he begged
lave t., notice one idea whchad been thrown out IN re-
gard the action Of the Senate upon this subject "ch
was that no decision Of tn, Senate would be binding
upon the Executive in its future action upon similar nc
casiOns Mr. Nash readily admitted that the decision q"
the Senate would not impose upon The Governor any ad
duona other Obligations, Than those arising nhd'I
| the existing Constitution and Laws But inc oOlect
which all had in view was to draw aishc'y TIE me
I i,tipo e he
RIGHTS of the Senate 80 defined by The Constitution
The Governor in his special Message has informed US,
that he declined ssuiig new viii OF eIecunh W 'ns
case because he doubted his power To DO SOL ana mas SUI
mtted in special Message the whole subject TO the &C.
nate The petition of Edward 7. Scott also presents the
subject for our consideration and asks decision upon H.
Is It proper then glance this or any other qneS
ton which the case fairly presents: 1t is moreover
case of the first impression under the present Consu
ton and there is grat propriey in settling the question
81 far rs precedent founded upon the concurrent acuoh OF
the Executive and the Senate can effect that object
Nor is this ALL fit be true that the issuing oil ne"
writ of election in this case, would have oeen an h'ef
ference with the constitutional righroi The senate
proper respect for the Coss utIon seih as wen as our
own dignity requires US TO declare, ana MAINTAIN our
! rights. :.
ed leave 10 call the of gentlemen TO the precise
difference between himself and The majority OF the com
mirtee: The LIST resolution Of the committee nhrns, thai
in all cases Of vacancy occurring during the recess OF
the General Assembly by the resignation # the re"rnfd
member whether the election be c0nsttd or not the I'm
vernon has the power under the Constitution and Laws
,n issue writ; &c. The first resolution OF the suos
tute expressly negatives that proposition and Declares
that the resignation of James Mallory Of his right to
seat in The Senate during The PcndsncyJ rcrteS Tc.n
iariy commenced and prosecuted by Ed'c"Td oe0 dI"
not create such vacancy to authorize the Governor
Of this Common wealth writ Of election during
the recess of the General Assembly BY the 9ih secil"
of the Sd article of the Constitution 1t is declared that
leach house shall choose lis Speaker. appoint It's
! rwu officers settle It's rules OF cCeding, ana
direc, wits of election for supplying intermediate va
cancies But if vacancies shall "ccnr, ny DEAN or
resignation, during The recess OF the General AS
spmbiy such wrIts may be issued by the Governor
under such regulations as may be prescribed by law
Each House shall judgc ct The eiett0n q"G!ff"t'0H
| law of Tins Commonwealth requires, that The officers
conducting elections at the Courthouse OF each c"un
v city, town borough in the Senatorial districts "'
this C9mmonw wealth. shall meet at the Time ana place
bs rein mentioned and after examining the polls, "sha
certify as the Senator elected, the man who mas Inc
grcacst number Of votes: and IN subsequent prnvisIon
declares that the officers directed to make snrh cerh
cae sha deliver the to the clerk OF the Senate,
~ d,y f., least before the succeeding session Of the Gr
c,rol assembly," II must be manifest, from the cons
tutonal provision ust referred To-, and the legislative
direction 10 the shcriifs, 10 file with the clerk at The De
their certificate of crctan day at least before
IN, meeting of the General Assembly, that the Senate
Is the ONLY tribunal which can rgh'iuily JHdgc y me
rI,cou qualification and return # its members and The
egsyalion of the country well as The known usag" {"
The Senate upon the Introduction q" every new men;oef
| is in exact accordance with THIS idea
1uere Mr.. Nash read from The journal Of the Senate
the order which always made referring the ceIicnes
of The sberlfs returning the new member to the Commit
lee of Privileges and Elections md The us order adopt
d by the Senate when the return MADE according L"
,h art nj Assembly and no contest existing, declaring
that is duly elected member OF The Senate &c
tf then the Senate is the only Judge OF The election,
,uol6ca,ion and return of its MEMBERS and contest
houd arise in relation 10 either and he regularly Prose
,ed according law, tending directly TO bring the con
~, before the Senate is it consistent with the plenary
ors Of this high constitutional body that The act oi
rne of the parties to the contest without the consent o.
his competor should be able TO deprive the Senate NJ
,her iursdc,ion and their right TO decide without inter.
cence or embarrassment, that particular contest! Yet
If he commended that the individual having me sherH
return has right TO resign and oy that Trsgna'h 10
create a vacancy pending c"nicsl whch lne governor
hound TO fill by writ OF election, The ineVllaoe Ell
@ r,der the Constitution and the laws regulating con.
s,ed elections would be- practically TO Dust the Senate
or its jurisdiction of the pending contest and 10 deprive
his opoone nj Of which he might be Justly entt'd
Nj, N said he did not pretend 10 contnVeft Inc 'gh u
tho who has obtained The certificate OF election
TO resign ann right (as done IN this case) whicn ne
might have 10 in the Senate; but he dld DENY tnal
The effect Of that resignation dutIng c"nest wrun De
T., create the vacancy contemplated by le Consul n'I",
IN which The Governor would have rgh' l" issue MS
writ because il that be the case the pending contest
which has beef legay commenced, ana wren may nave
for lis object the trial and decision ot the TACT oil vacancy
or no vacancy itself Withdrawn from the PIo'
ocr tribunal and settled by the of Of the parties
TO the contests that, too, an interested party II
not proper consider The parties who nave embarked
in contest in which the very act oi Inc racahey ise
NAV he involved as itigaing that question before the
proper ,ribunu and until that tribunal decides Ihr cues.
iion with what proprety can the Governor be called on
to make the decision duty in regard TO the whole
subject is only TO order the writ, when me vacancy Is
osceraned and not 10 try the question OF vacancy it.
self: The one is an executive, the other is IN The IA
lure of judicial function But this is not ALI The ~
article of the Constitution declares, that " The Legisia-
s,,,,,e and distinct so that neither exercise the powers
properly belonging to either Of the others And IS ii
no, an obvious invasion Of the right of The Senate to
Judge Of The election Of i'membets Tor The Executive
De5arlment of the under color ot It's right