The daily union. [volume] (Washington [D.C.]) 1845-1857, 1857-02-17

have the case of Mr. Lanman from Connecticut you have
the of Mr. Dixon from Kentucky you have the
Of General Shields from Illinois In all these evi
dently the distinction TO which have alluded recog
nised In the of Mr. Johns the certificate regu-
lar far arded The fact that be had been appointed
BY the executives but the Legislature had been in session
and had adjourned in the interim between the time when
his predecessor died ahd the date Of his appointment and
the Senate always judciay notices fot all purposes Of de-
cson here the time when the legislature dees and ad-
that point in the of Mr. Phelps We decided in the
Of Mr. Phelps that would jadically notice the time
OF meeting and adjournment of the Legislature.
You reconcile ibe decisions OF this body any
other ground than that there certain facts which you
will udciay hotice and ths where those facts strike al
the alleged authority which makes the appointment you
will not allow the person to take his seat until inquiry
be made. This the fact in Laumans case. Mr. Lam
man. anteeedeny the 4th of March, l825-l think on
the sh OF February-was appointed by the executive OF
Connecticut senator until the next meeting OF the egsa
ture That term commenced on the 4th OF March When
he presented himself the special session OF the Senate 10
claim his seat the objection was made that he was not ent
tied and be in the Senate overruliDg
the decision in Tacys case, which had been ruled the
other way In the early history of the government by close
party voe deciding that the executive had no authority
to appoint full constitutional term or in other wed
that the expiration OF regular term did not create va
cancy within the meaning Of the consultation ofcourse
tue face of the certificate the time 6f appointment APP
peared and the Senate necessarily udicay noticed lis
own terms.
In the Of Mr. Dixon precisely the same legal pspc-
from the executive of Kentucky 10 hold during the yacan
cy created by the death of Mr. Clay Mr. ebay had resign
ed by anticipation TO take effect on future asy before
that time arrived, the legislature Of Kentucky, being I'D
session. undertook to elect senaor whose term Of service
should begin at The period of time which Mr. Clay de-
cared he would resign Mr. Clay died in the interim, and
the governor appointed Mr. Meriweher TO an stui
cancy That fact of course to be udicaly noticed
That case was in my judgment clearly decided wrongly
by the Senate though took part in the debate being
then young member of the body; bat certainly shall
take part if ever such question comes up again There
the facts were all matters to be udciay noticed such as
when the vacancy took eject when the legislature elected
when they were in session. and the whole question was
whether the Legislature could before the vacancy
make election in ntcipaton, whether the power to
elect did not under the constitution of the United States
vest in the legislature which should next after the
vacancy occurred subject to the executive OF appoint
ment existing in the mean time.
In the of the senator from Illinois Mr.. Shields the
question of fact be established by proof Ac
cordingy, although he ultimately deprived of bis seat
by the Senate when the fact established yet nasmuch
it not fact which the Senate could udiciny no
tce, whether he was or was not qualified person be
that must be sabectmaiter OF proof The Senate
allowed him to be in and afterwards went INFO the
inquiry. u
You will find in every cnse whether that of Mr. Johns,
Mr.. Lanman, any other that the Senate always al
lowed the party presenting the certificate to be sworn IN
unless the matter OF fact going to the validity OF the eec
ton or appointment which could be judicaily
noticed by the Senate court of usticeone OF those
historical facts which sou must notice and not question
depending proof TO be taken by testimony or otherwise
Where the fact is judicay noticed the Senate rfuses
admit the party to seat until the question OF law IS
decided but when there is question Of fact TO be deter
mined which there may be counter testimony ON bolh
sides and the party presents certificate OF election iron
the rehtul authority to give the credenta that case rs
not found in the record of the Senate in which be has
been invariably sworn in That is the question here,
far perceive The governor OF the State OF In
diana cerfss that the 4th Of February last GRAHAM
FITCH elected senator for the State of Indiana
ill The 4h day of March 1861 That the certificate
der the great seal of the The testimony presented
the other side is paper sworn to before notary puo-
lie which but questionable evidence Of course You can
e anything about it then that comes here not
certified under any seal but pare d4yit made
by two individuals calling Themselves the secretary and
assistant secretary of the State OF Indiana that such and
such copy of the record Of single branch OF the In
diana legislature Is that to be proved by in
qury If So then Of necessity out OF respect to the STATE
and for the purpose of cannot keep the
claim out Of his seat disputed question OF TACT
all the facts before you and they were facts which
ou would udici iy notice without proof you ought TO
decide the question of law and give or refuse the
according your opinion of the law but when there
disputed questions fact the right OF the State as well
the necessity Of the organization of the body requires
of the returning officer for there the substance and
then that Investigation of the facts when they are
proved your satisfaction you shall decide whether the
! party is legally senator or not
i T is seems to be plain and evident distinction
between before the Senate and the cited
by the senator from New Hampshire as coming from my
State and L,nmaps and the other which have
mentioned think there will be found to be no exception
where senator has been refused seat in the first
unless where the point involved of which the Sen
ate would judicialy take notice.
The from New Hampshire supposes the of
forged paper being presented and he asks would ad
nit party claiming seat under such an instrument
That is very different question There is no allegation
here that this paper does not spring from the governor
Indiana. The reason why has his official Authorization
is that he Is the returning officer and If the paper be genu
inc it gives the ra right to the seat and any fact
must subsequently ascertaned in order to dsplace th
claimant OF course the whole validity of the paper is at
feced by question TO its genuneness. If that aega
ton be made there be scntillA of evidence to show
that this Is not the certificate of Governor Willard
represents itself 10 be under the great seal of the Stat
of ndiaus and that the seal not affixed by his orde
and direction the case would present very different
pect But have heard ntmaion of thing Of tha
kind but simply allegation that the governor Of th
State has certified enormously To the fact of election
cannot raise that question: because the oca
certificate entities the claimant TO the seat unless his CLAIM
4 depend facts which you will judicialy notice fth
facts be matters of proof destroy the effect OF the oca
certificate the party must be in, and hold his sea
u until the facts be ascertained by proof
Il Mr. NOURSE Mr.. President the constitutional provls
ion in relation TO this matter is that he Senate of tn
United States shall be composed of two senators from eac
State chosen by the legislature thereof for six years.
presume all who have been thus chosen are clear
V entitled in this body for the time for which the
have been chosen; and il they here claiming tina
right and establish it by satisfactory proof Of the fact
their election The duty Of the Senate to receive then
as SUCH and give them their seats. The question
what evidence the Senate shall require in order TO be salts
fed Of the fact of election wholly within their owl
discretion They may adopt any rule they please the
NAV ADOPT rule ALL their pleasure; but il s thei
j simple dnty to be satisfied of the fact.
The distraction has been raised between pra fde evi
dence and full evidence and very properly raised for
doubtedy gentlemen have been continually in this body
in all legislative bodies received upon prma tace evi