Delaware gazette and state journal., 1896-02-13
THE DU PONT ELECTION CASE
ReIoinder of Messrs. Wolcott,
Moore and Kurtz.
THE ELIGIBILITY OF Mr.. WATSON
His Rights as a State Senator
May 9th, 1895.
The Answer OF the Counsel in Opposition
to Seating Col. II. A. du Pont in the
United States Senate to the First Reply
of the Latter's Counsel.

Hon. James l.. Wolcott, Prof. John
f. Basset Moore and William #. Kurtz,
counsel in opposition to seating Col. II.
A. du Pont in the United States Senate
have presented TO the United States
Senate the following rejoinder to the
first reply of counsel for Col. du Pont.
Counsel for Col. du Pont have writ.
ten two replies to our answer to their
original argument. The second Of
their replies we have not had an op-
portunity to read, consequently what
we now have to say is in reioinder to
their first reply to our answer. In that
they make lengthy argument TO dis
prove those of our propositions which
they deemed most dangerous to their
contention. but it is only an emphatic
reiteration of their former position that
az when Speaker of the Delhwaro
Senate exercises the office of Governor
his Senatorial Office is absolutely va
Gated or (2) if the Delaware Constitu-
tion has been construed to mean that
the office of Senator does not become
vacated when a Speaker Of the Senate
exercises the office. of Governor, at
least his functions are suspended. To
this they add denial of Incorporation
which we advanced, and the Delaware
Senate on May 9th, 1895, passed upon
the qualifications of Mr.. Watson's
right TO participate in the Senate pro-
ceedings while exercising the office Of
Governor. and they contend that the
Senate of the United States is, there
fore, not precluded from passing upon
his qualifications now.
We might rest our case on our first
argument, together with the admissions
% -, thnt, 4,,,,,
arguments, and we feel satisfied that
to unbiased minds the result must be
conclusive. To show the weakness Of
their own case we will, however, quote
the exact language of opposing counsel
relative to their contentious as above
epitomized On the question as To
whether or not the Senate Of Delaware
passed upon the qualifications of Mr.
Watson on May 9th, 1885, opposing
counsel say on page 10 Of their reply;
"Our position then on the subject now
under consideration is this: While
that clause of the Delaware Constitu-
tion which makes the State Senate the
Judge Of the elections and qualifications
of its members, does make its Judge
ments, admitting claimants to all seats
in that body which are established by
the State Constitution, or excluding
them therefrom, conclusive on the SEN
ate OF the United States, in the adiud-
ication OF titles to seats in the Senate
of the United States, it does not make
judgments of the Senate admitting
claimants to seats which the Constitu-
{ ion does not establish or recognize,
conclusive on the Senate of the United
States, in tho adjudication of titles to
seats in the Federal Senate. y
This long and involved sentence we
understand to admit that the Delaware
Senate is the sole judge of the cleo
tions and qualifications of its own
members, but that, in this case, the
Delaware Senate admitted as a nom
ber ono whose seat at the time had
either become vacated or suspended.
This is only the other two propositions
stated in "a different form AMI must
stand or fall with those propositions.
But this statement of counsel con-
tains fatal admission. The Consti-
tutin of Delaware simply establishes
the office of Senator and IL relegates to
members of the body to decide whether
any one claiming seat therein has all
of the qualifications and none of the
disqualifications prescribed by the
Constitution. Therefore, when the
Senate of Delaware has expressly passed
upon the qualifications of member,
such member is, presumptiyely, duly
qualified member until the Senate, by
some affirmative action, recognizes
some intervening cause which, accord
ing to the Constitution, would disqual-
ify such member, and induce that body
to declare his seat vacant,
The fact is not, or cannot be, denied
that William Il. Watson was duly
elected to the Delaware Senate from
Kent county IN November, 1892, and
curing the session of 1893, the Senate
decided that he was duly qualified.
So did it when the session of 1898 be
gan. This decision of the Delaware
Senate, in passing upon Mr.. Watson's
qualifications, is conclusive on the
whole world, and Mr.. Watson's title 10
his seat is unimpeachable until the
Senate, by some affirmative action,
takes cognizance of any disqualitica-
tion which may have intervened and
declares his seat vacant. In other
words. il any disqualification has
arisen since Mr.. Watson was installed
into Office, the only tribunal which can
ascertain that fact is the Delaware
Senate. For example, let us suppose
that after being installed MS Senator,
Mr.. Watson had become concerned in
an army or navy contract, as the case
of John Bird (pages SO and 5l OF our
answer). By becoming concerned in
such contract, he would, of course,
labor under one of the disuualifications
mentioned in tho Constitution as max
ing him ineligible to be a Senator.
But what tribunal has the power to
ascertain that fact? The courts oi
Delaware could not challenge his right
TO discharge his functions and duties
as a Senator. The Senate of Delaware,
and that body alone, could ascertain
that fact, and until it took action, nc
one could question Mr.. Watson's right
to exercise his Senatorial functions.
Even if the Senate refused to take cog
nizance of the alleged disqualifications,
no other body could call into question
his right TO exercise his Senatorial
functions.
In the case before us, the Senate o.
Delaware not only did not take any
action declaring Mr.. Watson disquali'
fled, but whatever action was taker
was constructive affirmation that ht
was still qualified to act as Senator
even though acting as Governor at th'
time same.
In considering the weight to be at
tached to the ailidavits relative to tn,
question of fact whether Mr. Watson dit
or did not preside, put motions ant
vote on questions in the Senate on Ma,
9th, 1895, the alfidavits of Speaker pr
tenn Records and of Mr.. Watson mus
be conclusive, as they were the imme
diate actors in what took place at tina
time.
On this ground alone, Col du Pont'