The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-03-19

whatever the decision may be- should find that did not
vote on any question: what would that amount tos II
Mr. Smith ri that left his seat or did mol take &C
tive part in the Senate, only shows that he was infu
enced by feelings of delicsey common 70 Us all does
not aid US in any dssIss Y a.cssns 'hs sense Of The
But sir what is the legal fiction 10 which gentlemen
are compelled 10 Iesort What application has il here
Like all other legal 6cons, is Tesorled order to
avoid Inconvenience but is permitted TO inter
fere with substance In England session Of PaIlia
meniis considered ~ one day 10 what purpose , SIM
effect ., legal fiction adopted there 70 pre-
vent endorsements. But have never adopted ~.
The acts Of Congress take efec, IRON the time they are
approved by the President We therefore, have discarded
this fiction sninly. The term Of court 70
England is regarded by legal fiction As one Gay. why
so Because il is convenient to have PERIOD wneh All
the judgments Obtained that term may DC CONSIDERED as
having taken effect This is legal hcton, adopted 10
order to avoid embarrassment
But did any body hear that when WIN respect 70
The rights OF parties, the date OF Transaction became
very important this legal fiction stood 10 The way Of as
ceriaining the iactl No, sir never venture to say.
man. nal ms ssS S.N ;ns;es "
case II has its PURPOSE lis purpose Is TO AVOID neon
vensnce and technical embarrassment but as Tor ITS be-
ing rule to determine the rights OF anybody, and apply
10 matters OF controversy has been regarded
say here that the Senate have never so understood IT.
Does not the honorable chairman OF the Committee on
the judiciary concede that the appontee oil an execu
ye(wlhout raising the question whether he can hoid
his seat after the session)-may hold bis seat until he
legislature supply his place. and the Senate are nounea
AZ their election understand him distinctly az con.
codng that provided be confined 10 the next session OF
the legislature after the occurrence OF the vacancy.
Now, then, when The senator admits ms does ne no.
card this legal fiction when he puts himself on nat
groundi Does be not recognise lapse OF time az dvld-
ing that portion Of The session which Pecedes The acton
OF The legislature from that which ollows Then, does
not the honorable senator iron South Carolina discard
the fiction altogeher' may say The same OF the sena-
tor from North Carolina de himself dscaIds ms ne
ton.
Another position was taken by The chairman oil The
Committee the Judiciary, and Dy lie honorable sen
ator from Delaware who addressed The Senate al such
length ia reference the Of Mr. Sm,hand that 49,
thai the resolution adopted by The Senate III that case on
the motion Of Mr. Giles was qaal,ied BY ibe use o. zoe
understand by the qualification which was used on lhat
occasion The question now ra'sed--whesher he could
hold il after the session twas not before the Senate
The legislature Of Maryland then in session. and
continued in session alter this resolution was passed
The question submitted by Mr.. Smith 10 the Senate
was moi whether he could hold after that session, but
whether he could hold, inasmuch as the legislature Of
Maryland session al That moment!- in other
words. II not whether the adjournment OF the
Legislature would terminate hls office, but whether
the commencement OF the session terminated IT.
That The specific question submitted 10 the Sen
Well, sir, well understand that all judicial tri0u
mails, and all tribunals acting ludcaily conhne Their
decisions 10 the matters submitted 10 them. In such
this the Senate act judcially, as much as the
which sits in the chamber below acts judcialy IN
ascerainng the construction OF any poon OF The con-
stituon This is judicial power apperainng TO the Sem
ate, because they and must be- the only Judges OF
the qualifications OF their members II is IN lis character
and judicial question submitted here because
pertains the privileges OF this body When decision
OF this character is made, II is considered applicable
only to the point presented
orabe senator from North Carolina were present, would
ask him whether the award OF aIbua,ors can be more
extensive than The submission The only question sub
mi,ted 10 the Senate in the OF MIR. Smith was,
whether he cOHld hold has seat while the Legislature OF
Maryland was in session. The words "durng the ses-
SON." in the resolution which adopted intend
ed 10 limit the decision OF The Senate what have de-
scFbed That proper, and always is proper 1t is
matter often 10 be regretted that even in the determina
lion OF judicial the courts do not limit their
remarks the under consideration Now, all that
can he nae out OF the expression "dnIng the session
OF The legislature, in the decision OF the Senate IN MI
Smiths case, simply tina! he entitled 10 his seat,
outstanding the TACT tina, the legislature OF his State
was al that moment in session You can make no more
OF il. $780,
this vote OF The Senate determined in the point that
al executive apronss could hold after TIE next session
OF the legislature. The decision, admit does no, 20
that length All that conead for now rs ihal The
,on OF the Senate in that instance established consruc
uon OF the constitution which. II carried out, entities me
TO my seat Tie resolution o. Nj Giles merely settles
the question that the meeting the commencement oil
the oil The Legislature did not terminate the oihce
OF the executive sppoin'ee contend that. putting with
that the vote oil the Senate The proposition oil r An.
deTson the Senate went 10 Tue iu length OF holding that
the Limitation did not apply to The ofhce Al all Now,
what conlend Tor rs. that 10 dsoaEfing thus Limitation,
the Senae duo IA that Instance upon any Interpretation
OF IT, they have cleared my case OF all embarrassment on
that score; and II there Is a Limitation the office,
must be found elsewhere. That is what | claim
But sir, the honorable senator from Delaware Tells us
that tabular statement OF senator's appended to the
journals OF thai session, Mr.. Smiths name Is no, in
cluded and this he regard authority the
subecL Who made that tabular statement Did the
Senate adopt ~ No, Ell u - the act OF the Secretary
his clerks and II - OF no authority al all, have
been subject to the Inconvenience ior although the
Congressional Directory issued IRON The office here gives
my and residenee YET some gentlemen oil The press
have been passing upon this constitu oDa question with
view to give the world the benefit OF Their Judicial
pacy. and have FL in publishing the abstract OF this
Directory TO omit my atogeiber upon The prinel
pie, probably that there que sion before the SEN
ate with respect 10 my right 10 seat no Trend OF mine
who vsiis Warrington Is entitled 10 know where am
TO be found
The honorable chairman also told as that Mr. Smith,
in hs letter. did present the Senate the right issue
that the real difficulty that be had never been
additionally appointed and bad right 10 seat here
at oil and II that question bad been presented TO The Sem
ate they would have 80 decided. Admitting sll this TO
be true what will the senator do with the preceden, IT,
self, presented by the record II bai
sion ASSUMED that Mt Smith had right TO a seat and
specific question submitted TO the Senate, and de-
cIdtd specifically Ii rs 10 that decision say
Ina, anohe bad been presented they would have
decided differently The chairman OF the Committee
the judiciary, lake II, Is a good lawyer | have al.
ways supposed so, iron my association with him.
regard 1t conclusive between the parties, beeause
il had been suggested that defence existed which
not presented upon trial. but which, II presented,
might have defeated the suti
The honorable chairman admits however. that IL Mr..
Smith, OF Maryland, originally entitled TO his seat.
the precedent is decidedly ~ my favor understand him
10 admit that
a. \