The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-12-16


quiet his apprehensions. He spoke as
became an American Senator:
Mr.. President, / am willing to see every
Senator'S seat in this House disturbed and
called in question and put in jeopardy
whenever it is shown to me that he Is here
as the choice of an illegal mob in the streets
Of some city, instead of the choice or rep
resentative of the Legislature of a sovereign
State. | am perfectly willing TO have my
own or any other Senator's so far as am
concerned, disturbed, whenever that state
of fact appears | Will tell you what Is a
dangerous precedent. 1t is a dangerous
precedent to let man come here and sit on
/ this floor by the dictate of an ephemeral
I body of men which assembled and assumed
to call themselves the Legislature of state,
/ that dissolved and acknowledged they never
were the Legislature of the State. That IS
a dangerous precedent
And now as to the applicability ofthe
doctrine of
RES ADJUDICATA
and our assertion that it does not exist
in Democratic proceedings. We do
not ask our correspondent to accept
the ipse DIRT of THE CLARION, but law
yer-Iike we will cite authorities whose
weight he will readily concede. Mr..
Thurman, the Chairman of the Senate
Judiciary Committee and who on the
bench of the Supreme Court of the
United States, would rank with Mar
shall and Story and fancy, said:
| Sir, it is certain, and very certain, that
! the Senate would disgrace itself, it is very
certain that the Senate would do manifest
/ injustice were it to hastily, or without the
most plain, the most manifest reason, reverse
a decision that had been made seating Sen
ator on this floor. The case must be exceed
ingly strong that would justify such a pro-
ceeding as that All that am free to admit /;
but to say that the technical rule of res ad
judicatd that applies in courts of justice APP
plies in this chamber on a question of this
kind, is to ccnfound all distinctions and
to disregard all the laws of this body.
In a minority report to the Senate in
the case Fitch and Bright, from Indiana,
Messrs. Coleman and Lyman Trumbull
(the latter a constitutional lawyer of al
most unequalled ability this position
was held
The power of the Senate to judge of the
election and qualification of its own mem
bers is unlimited and abiding Il is not exhaust
ed IN any particular case by once adjudicating
the same, as the power of Fe-examination and
correction of error and mistake, incident to
all judicial tribunals and proceedings, re-
mains with the Senate in this respect, as
well as TO do justice to itself as to the States
represented or to the persons claiming or
holding seats. Such an abiding power must
III.
1cise q1a1 one MIGHT retain his seat 1ciO had
aorongly procured a decision Of the Senate in has
faror by fraudo or taisehOOd or ecea by papers
forged or fabricated.
That's a centre shot.
Senator Jonas said:
The question to be decided here is politi-
cal question it is not judicial. The Senate
is not court, or if so, is a law to itself
when engaged in the investigation of the
title of its own members and cannot be held
to the techpicalities Of courts of law. 1t may
be, and is, to the public interest thai the
plea of res 0djudtcdta should be applied to
put an end to private litigation but it is not,
and never can be, to the public interest that
an usurper should retain a seat in Congress
to which he was never elected, against the
protest of the State which Ire pretends to
1 repre- seEt, when he has been seated through
error, fraud, or partisan injustice.
Senator Vest
The inquiry now before US is whether the
plea of res adjudtcata is we'll taken.
What is the rule technically in regard to
res ddjudicdtG? | am asking the question
simply as a lawyer. Says the Supreme
Court Of the United States;
1t is undoubtedly settled lag that judg
ment of court of competent jurisdiction
upon question directly involved in one
suit, is conclusive as to that question in
another suit between the same parties. But
to this operation of the judgment it must
appear, either upon the face of the record or
be shown by extrinsic evidence, that the
precise question was raised and determined
! In rhS former suit. Russell vs.. Place, "a
| U. s., page 69I.1
! Even if the rule applied to tie action of
| the Senate, wkich 1 emphGticqtg deny, it
| would not be applicable in the case under
consideration, for the reason that the whole
case was not passed upon.
In another part of his argument, Mr..
Vest said
Most distinctly in my judgment as law
yer, having examined tBis Whole case, in
answer to the question whether in the term
Of any Senator the Senate can estop itself
from examining into his title, | say that no
Senate can preclude me as a Senator of the
United States in determining whether a
State has two Senators on this door call
the attention of the Senator from Wisconsin
to the terrible deduction that must come
/ from his position. Suppose a partisan ma
iority upon the roll ofthis Senate, and such
thing is very reasonable, in the madness
and fury OF patty, should determine to OBJ
!
ting one Senator or two Senators or three
Senators into this body who we're not elect
ed. suppose that men should come here
and put in paper title, aQa suppose that a
partisan majority, under the advice OF an
astute lawyer, following the precedents, as
they claim, resolve that Mr.. Smith, or MI /
Jones, or Mr. Brown, is entitled to seat on
this floor on the merits-magic words, |
"upop the nerits"-and whenever it is |
done, the Senator FROM WISCONSIN says
''res adjudicata." This is the end oft, the |
end for all time to come. | deny it. 1
deny that qny partisan majority can estop
me from asking NnEther 9 sovereign State |
has two Senators upon this HOOP. ! say
that the Constitution is imperative, abso |
lutte, not to be contradicted. Every State |
shall have two Senators, and if that fact /
does not exist, where is the power outside |
of the Constitution that prevents the Senate /
from inquiring into it2
Senator Mcdonald, who once served
as Attorney General of his State, and
is an able lawyer, said:
But it is said that the doctrine of res Gd- (!
jWdicata is to be applied il a case of this
kind.
We appeal from the decision made by
the Senate in the resolgtion have referred
to as adopted in 1877 to the Senate acting
upon the case as it stands before it noQ
That is what it is. 1t is an appeal from
the court to TIE court. we are the judge |
of the election of this man, and his case is
before us for judgment. II Is said the Sen
ate once Gdjudged the other 1cay, bGtthi IS an
appeal from that decision to the Senate again
:.