The national era. [volume] (Washington [D.C.]) 1847-1860, 1859-04-14
WASHINGTON. D. C..
INDIANA SENATORIAL CONTEST.
Senators Collamer, Trumbull, Seward,
Hale, Fessenden, and Harlan.
CONCLUDED |
SPEECHES OF
In the senate Of e United States, February II, Is

4 a.
maintained that the Senator from Iowa was
titled to a seat because he had majority of the
votes of the members of the Legislature. That
is the ground upon which the Senator from Ohio
says we put II.
Mr PUGH. | did not refer to the Senator
from Maine. | referred TO other gentlemen.
have read their speeches lately.
Mr. HALE. | never contended for any such
thing.
Mr.. FESSENDEN. ] do not know that gentle
men on our side ever contended for any such
doctrine. We might have said that he had
majority but no Senator that heard on our side
of the House contended that, therefore, because
he had majority, no matter how the votes were
Given, he WAS entitled 10 his seat We might
have made tina. remark, but that anybody here
made il a substantive ground, without reference
TO the manner in which that majority was OBJ
iained, deny | heard no such argument from
our friends, and do not believe any such was
made by them. That ground was taken by the
Senator from Georgia, Mr.. TooMBs,] and he
maintained the same ground in the case OF the
Senators from Indiana but he was the only
Senator who took that a substantive ground
ON which to base his vote in the Iowa case.
The distinction between the two cases is obvious.
la the case of the Senator from Iowa, it was
shown by the record, that each House, as leg
islative body a component part of the Legisla
ture, had voted to form a convention at given
time and place, for the purpose of electing
United States Senator. The Constitution of the
United States says the Senators shall be chosen
by the Legislature; and we contended that the
Legislature must act, such, in relation TO that
matter in fixing the mode, as no mode had been
established by Congress, which alone had the
right TO override its action and that after, by
proper legislative action, a convention was form
ed, that convention had power over the whole
subject, and the withdrawal of no part of the
members of it, unless they many that no
quorum remained would be sufficient to affect
its action in any manner. That is the ground
on which we put it; that is the ground against
which the Senators on the other side contended.
The Senator from Louisiana Mr.. BENJAMIN |
contended that there had been no legislative act
in relation to that matter. He drew his argu-
ment from some provisions of the Constitution of
the State of Iowa. He took the same ground in
part that did that in order to make legal
election, there must be preliminary legislative
action on the subject and he argued that fully,
and established that point TO the satisfaction of
everybody. Ii was argued also by the Senator
from Connecticut, who was then member Of
this body, Secretary Of the Navy, (Mr
Toucey,) that not only must there be preliminary
legislative action but majority of each body
must be present, or there was no election. That
was the ground on which he put it, in the argu-
ment which took place in the Senate.
Now, sir what is the Distinction In the case
of the Senators from Indiana, there was no legis-
lative action there was not pretence of
legislative action. The Senate of the State never
took any action on the subject; it was never
called upon to vote, and majority of the Senate
never acted upon the subject There was no en-
try upon their journals in regard to it. They
never had a proposition before them to elect
United States Senators. But minority of the
Senate met, with a bare majority of the House OF
Representatives, not quorum by the COnstitu-
ton of Indiana for another purpose under the
Constitution, and proceeded to make an election
at an adjourned meeting, without any reference
20 the Senate or any legislative action on the
part of the Senate.
There is the distinction between the two cases
and il is obvious to any lawyer, it strikes my
mind, as anything can possibly be. In one case
81 the hfgisiat1fe OF me otdte IN cse,
there was no legislative action at ali but as nv
friend from Illinois designated it, the action of a
mere assembly Of men-to Toe sure, members OF
the Legislature, but that making no difference
an the world.
We said, here is a precedent, precedent SET
10y the majority OF this body, in the case of the
Senator from Iowa. The Senator from Ohio has
read from Chancellor Kent's Commentaries a
passage, in which he says the action of the Son.
ate in such is judicial That means that
they act as body, having the right to settle the
thing; that is all Anybody will see, from read
ing the sentence, that he meant that they estab.
lished a principle, when they acted, and theii
action must be considered as judicial, not with
reference to the particular case but with refer
ence to the principle established, in order tc
promote uniformity in the decisions that is
that what they establish at one time they shall
not shrink from at another.
Sir, the majority of this body, by speech and
vote, in the case of the Senator from Iowa, es-
fablished that in order TO make a legal election
that election must be by the Legislature, under
the Constitution; that an election by the Legis.
lature, TO be legal, must be preceded by or at.
tended with, legislative action under the Consti.
tuition. But, when this question of the Senator:
from Indiana came up, what did they do With
out word, without a pretext, they repudiated
the whole doctrine, and based their decision
for it is the only ground upon which they could
put ton the previous argument OF the Senator
from Georgia, that if a majority of a majority OF
the votes were obtained, no matter how no mat
ter where, no matter when, there was a legal
election. They repudiated their former action
as distinctly rs it could possibly have been done
aud as plainly if they had said upon the rec
ord that they meant to abandon, in this case
the principle which they established in the other
1t was obvious to every man.
Well, now sir that ! am on nv feet let me
allude to the case which is before the Senate in
a few words; DO not design to argue it al
length. How did it present itself in the first
placer These Senators came here under thi:
vote, which is pretended TO be the action of the
Legislature of Indiana under the Constitution O
the United States. When they came here :
protest was presented from a majority of the
Senate OF Indiana; but they were sworn in Wha
was the first report made by the Judiciary Com
mittee, to whom the uatter was referred? That
either party should be a: liberty to take testi-
mony. That at a called session of the
Senate, year ago. Did those who protested
ask for time to take testimony The whole
matter was on the record, it was stated TO be or
the record, so that no testimony could change it
there was dispute about the facts Ii was
said, think, in some papers presented in the
name of one of the Senators from Indiana, thai
there was a dispute about the facts On that
the Senate decided that the subject should pc
over from that time to the regular session. Il
went over; and what did the Committee ON tn,
Judiciary then do? They reported again thai
time should be granted to take testimony. Why
had not the testimony been taken in the mear
whiIe2 There had been a whole vacation wher
they could have taken it.
Mr.. BENJAMIN. The Senator is mistaken,
think.
Mr.. FESSENDEN. Not at all remember i
very well.
Mr.. BENJAMIN. The Committee on the Ju
dietary reported at the first session-there wer,
but a few days left-a resolution for taking test
imony. That was objected to, and the question
was kept under discussion by the Senator from
Illinois, so that we could not get to vote on it
1t remained there There was no power given Il
take testimony in the vacation.
SIr. FESSENDEN But could they not have
done precisely what they did afterwards, which
was simply to take affidavits But am coming
to the action which took place in this matter al.
forwards When we met at the next regular ses.
sion of Congress, the same report was made by
sba Committee ON the Judiciary The contest