The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-01-16


life, met at the time and place required by
law and custom.
THE SECOND CoMEITEE.
The second committee that waited upon
you, | am informed, represented four Sena-
tors, who left the Senate after the organiza-
tion, and united themselves with seven SEN
ators-elect, whose credentials had not been
received by the organized Senate 1t is plain
that these four Senators were not only not
majority of a quorum of the existing Sen
ate, but were simply a small minority OF a
body which was in existence, in place and
in functions They, therefore, had no
constitutional or parliamentary power to de-
eide on the election qualification or returns
of claimants. 1t cannot be possible that
four out of thirteen could form a temporary
organization and consider the manner in
which claimants should be received into the
whole body, when the only basis of their
claim is denial of the possession of that
power by nine other members of that thir-
teen; or that four Senators who were regu-
lar members of the body, and who were, by
parliamentary law, still in that body, assent
ing to its proceedings, could secede therefrom
and organize another body in opposition to
it, ON the assumption that the body which
they had assisted in organizing was illegal.
The Constitution provides, as we have
seen, that minority may do some acts in
the absence of majority, but in this case
the majority was in existence and in action.
| am informed that it is claimed that under
the clauses which provide that members OF
the Legislature SHALL before they enter upon
the duties of their respective Offices take and
subscribe the following oath or affirmation"
* and 'members-elect of the Senate
and General Assembly are hereby
empowered to administer to each
other the said oath or affirmation,
Senators-elect could take such an
oath or affirmation in private, then appear
with an attested certificate and insist upon
taking their seats without permitting the
existing Senate, even if they were all present,
to pass upon their qualification, election and
returns. Such a proposition can find no sup
port either from principle or authority, and
is inconsistent with the free exercise by the
Senate of its power as judges Of the returns
of it's members. If such a course could be
pursued the Senate could be destroyed by
usurpers; false or forged credentials could
be received in private, and, on their presen-
tation, majority might Immediately exist
in the Senate which would have power to de-
eide on their own elections and control legis-
lation contrary to the expressed will of the
people.
NO MATTER ABOUT THE OATH.
1t Is unnecessary to consider the question
whether the oath of office may be taken in
private or at some other time and place or
before some other person or body than the
Senate This has nothing whatever to do
with the question. When it is determined to
admit Senator to his seat because his Gre
dentials are regular, he is then admitted to
take the oath of office, but he does not be-
come a member of the body by virtue of the
oath of office, but by virtue OF the judgment
of the Senators upon his credentials and
their determination that he is entitled to
admission. While the official oath may be
a necessary part of his induction into office,
it does not make him member of the body
until his credentials have been approved by
by the body who are his constitutional
judges.
The Constitution provides that seach
house shall be the Judge of elections, returns
and qualifications of his own members" " and
the question has been raised as to when his
Judgment shall be exercised-shall it be be-
fore or after the admission of the member
upon these returns!
An examination of the records discloses
the fact that as a common practice the
method has been to admit the applicant upon
the returns, and then to afterward examine
into the matter. But in every instant it is
apparent that the body claimed and re-
tained to itself the power to act when
and how it pleased. And whether it
happens, as in the Ames - Revels
case in the United States Senate (Congres-
sional Globe, Forty-frst Congress) that the
admission was denied to the presenting mem
bers until the matter had been referred to
and reported ON by the Judiciary Commit
tee; or in the Hooper-Torrey case in the
New Jersey Senate 1859, when the protest
was referred to committee and the pre-
senting member seated, the principle is the
same-it is the exercise of power carefully
bestowed on each legislative body and not
renewable by any other.
UNQUALIFIED POWERS.
You further ask me to advise you what
has been the course and practice of the Sen
ate with reference to the admission of newly
elected members, and what are the constitu
tional powerf of the Senate as judges of the
election, qualification and returns of its mem
bers, in reference to the admission of MEM
bers on their credentials
In reference to this last question, have
no doubt of the power of each body under
the Constitutional provision to examine into
the credentials of any member presenting
himself and claiming membership before he
is permitted to take his seat 1t follows from
the previons part of this opinion that
the judges of the elections, qualifications
and returns are the Senate as it exists. No
person is competent to take part in the or
ganization until that body is satisfied of the
regularity of the returns. Although the
right to that may be disputed and the in
cumbent be subsequently unseated, it is
usual to admit him if the returns are regu-
lar. If an attack is made on the credentials,
snch as the charge that they are not authen-
tic but are forged papers, or that the person
claiming to be the executive of State and
who has certified the credentials, was not
really, in fact, the Governor of the State.
and had no authority to sign credentials.
Questions would be raised which might
properly be referred to a committee, con-
sidered and decided before the claimant was
admitted to his seat. Such questions arose
during the civil war, and the credentials of
claimants to seats in the Senate Chamber
were referred to committee, who examined
into the question of the authenticity of the
papers and the authority which certified
them have no doubt whatever of the
power of the Senate or of any legislative
body, which has been made the judge of the
qualification, election and returns of
its members, on charge of irregu-
larity in the credentials or the
returns to prevent the claimants
from being seated until the question had
been examined by committee and decided;
but this examination is always based on a
charge of irregularity in the return or ere
dential When they are not in proper form,
and there is no dispute as to the authority of
the party who makes the certificate, it has
been the universal custom in the Senate of
the United States and believe in the Senate
of New Jersey, to admit the claimant to his
seat, Notwithstanding an attack by protest
or otherwise had been on the validity of the
election.
A WAR PRECEDENT.
In the Congressional Globe, part 2 of 1869
and 1870, page 1905. Mr. Stockton, then Sen
ator from New Jersey, is reported as say
ing
1t has always been considered in the Seuats Of
the United States that, on the presentation of
the broad seal of the State, the man bearing her
commission was eutited to admission to take
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