The Evansville daily journal., 1859-02-04
The indiana senator Question.
THE STATE OF INDIANA AGAINST GRAHAM \
FITCH AND JESSE D. BRIGHT.

FITCH AND JESSE D. bhlUu1.
Brief of W. N. Ne Carty and Henry s.
Lane, submitted to the Judiciary Commit
tee of the Senate.
The State is entitled to the sffice. The
Legislature is her supreme instrument and
donee of the power to elect Senators. 1t Is
the creature of the Constitution, which is
the chart of its power, vested only in two
coordinate branches; a quorum of two
thirds of tho members is requisite to give
either legal entity; each is equivalent in
power, with an absolute veto on the power
of the other: .-
The Legislature is a corporatian aggre-
gate, with only such power as its creator
has seen fit to endow it with to be exercised
in conformity tosthe laws of its birth.
To the joint wisdom and counsel of these
colleges is the legislative power entrusted
1t is not parceled out in its component ele-
ments in integrals, neither is it vested in an
amalgamated body of two. The one is erect
ed as barrier to the other. The ordeal of
both must be passed. This guaranty against
abuse cannot be broken down without de-
stroying one of the safeguards of our gov
ernment. The sovereign voice is a unit
The voice that utters it an entirety-an in
visible, intangible, artificial person. The
power is in the organism called General
Assembly" and not iii the individual mem
bers but the delegated trust powers of the
State that are welded in Senatorial cleo
tions or other exercises of Legislative pow
ers. Without quorum of either house it
did not exist-without either, the Legisla-
ture did not exist, and withouta Legislature
no election would be had.
Now the facts are that a quorum of neith-
er House was present at the pretended cleo
ton of Messrs. Bright and Fitch, nor even
a majority of the Senate, nor did either
House prescribe the time, place or manner of
electing.
1t is of the essence of legislative power
that its exercise shall be free from restraint.
Each body free to deliberate and act in its
duties. Each entitled to its full powers
The facts are that the Senate upon eight oc-
casions refused to go into joint convention
with the House, and at no time consented.
She could not be compelled to merge her
individuality or surrender her veto power
or adopt the joint mode of electing Senators,
or, in other words, dilute or annihilate her
power, upon the mandate of the House, as
that would degrade her from an equal to an
inferior. On the contrary, she had the right
to determine the time, place and manner,
and did do it by resolution to elect by
separate vote, at a proper time, in which the
House never concurred. Where diverse du-
ties are imposed, she must determine which
are the most imperative, and shall have
priority.
The Constitution of Indiana only provides
for a Joint Convention upon the contin-
gency Of tie vote for Governor and Lieu
tenant Governor. That contingency did
not exist; therefore the Convention did not
To say that duty to form a Joint Conven-
tion creates it, is as absurd as to say that
the subpoena of witness works his presence,
or the commands of the Decalogue their OBJ
servance.
Failing to get the Senate into joint con-
vention, false record of the pretended fact
was made, to be used as evidence, and which
has been used as veritable and true, and the
absolute verify and the unimpeached quail
ty of record claimed for the fabrication.
The resolves of the Senate are those ei
the whole body. The mutinous Senators
who usurped the name and power of the
Senate in said pretended convention, were
subject to arrest by order of that body foi
absence, and the attempt to nulify the will
of the majority by attempting business al
time, place and in manner vetoed by
that body, by a resolve then unvacated anG
| unrescinded. Said Convention, if it existed
expired with the duty that called it into
| life. The President of the Senate, wher
inaugurated Governor, his Office as Presi-
dent of the Senate expired, and with it thai
of his deputy President. The President
not only usurped the power to appoint {
| Clerk, an officer not known to the law and
void, who only authenticated this pretended
election by interpolating it into the journal
| of the House. This President, whose power
expired with that of his creator, arrogated
| that of fadjourning it to fixed day-in othel
words, commanding it to obey his arbitrary
rescript and, at asubsequent one, the NOR
| imperious mandate commanded them to pro
coed to elect Senators-no agreement what
ever having been had by the House there
! forsas to time, place and manner.
We aver that not only did no usage ex
| ist in Indiana, but that in no solitary in
| stance was an election had without the con
sentof both Houses, fixing time, place, &C., BY
| law or resolution. While said pretended
| Convention was in existence, but adjourned
| to liked day, numerous attempts wer
made ir both Houses to create one by tn
members who voted for Messrs. Bright ant
| Fitch, thus Offering evidence that they di(
not consider that one had been formed ant
was in existence. No forced Convention
could be had. Mutual consent was neces
sary, and it was never had by a vote, which
is the only mode of altering the will of
Legislative body.
The history of joint convention in Indians
will also show that no other business wa
ever transacted than that for which it wa
specially convened. And we insist that tn
validity of the acts of Joint Convention i
due to the separate action of the two House
as the General Assembly. 1t is also neces
sary to the validity of all elections by cor
porate bodies that notice be given of tn
time, &C, and the journals of neither Hous
show any such notice or any conventions
agreement for the same.
Upon the facts and law above, no lega
election could have been had.
To sustain the title of Messrs. Bright AM
Fitch, the Constitution of Indiana, deposit
ing her Legislative power in two co-ordinat
houses, must be broken down-that whic
requires two-thirds of the members to exel
else any of her attributes of sovereignty, an
that one house cannotcoerce the other. Nc
} only is this election in defiance of these in
functions, but in the face of positive disser
, by one branch, armed by the people with a
; absolute veto. But presiding officer, wh
T =. ~,