Delaware gazette and state journal., 1896-01-16

the presiding officer, who had acted in
his absence from the Senate, was
merely a Speaker pro tempore. The
uniform construction of the Constitu
tion for hundred years had been adj
hered 10 in his case. Though month
had elapsed since he began to exercise
the office of Governor, no one had sug-
gested that his place as Senator, or rs
Speaker of the Senate, was vacant;
and no step had been taken to vacate
them. He continued in fact and in law
to be Senator. The member of the
Senate who, after entering the joint
assembly and voting for three hours
without protest, suddenly arose and
declared that Mr.. Watson, who had all
the while been presiding and voting
was not now Senator, " contradicted
the record and stultified himself. His
suggestion was clearly an afterthought.
Nothing but moment of despair at the
end of the nth fruitless ballot in one
day, and of almost four months vain
effort to elect United States Senator
could have prompted the transparent
attempt suddenly to reverse century's
observance of the Constitution and to
deny what had never before been
doubted.
In accordance with the doctrine of
the Senate of the United States. Mr..
Watson, since he was member of the
Senate of Delaware. not only was en-
titled to vote, but he might even have
voted to elect himself to the United
States Senate. The Senate SO held in
the case Of Ephraim Batemdn, of New
Jersey, in 1928. The sound
ness of this decision will hardly be
questioned. 1t rests upon the principle,
against which no authority has been
produced, that the constitutional in
cumbent of an office is not TO be dis
qualified by implication from discharg-
| ing it's function. In this re-
lation it is proper to point out that
member of the Legislature. in voting
for United States Senator, does not
exercise what may accurately be called
legislative function. He acts as an
elector, precisely as when engaged in
| the trial of an impeachment, a member
of the Senate performs judicial, and
not Legislative act.
The desperate positions into which
counsel for the claimant are forced are
signally illustrated by their declara'
tion, that ''the simultaneous exercise,
by one man, of the Office of President
of the United States and the office of
President of the Senate of the United
States, would not be SO strange a
spectacle as the simultaneous exercise,
by one man, of the office of Governor
of Delaware and the Office of Speaker
of the Delaware Senate. And tho
reason for this declaration is that the
Governor of Delaware has no veto, and
the Senate no executive functions,
while the President of the United
States possess the veto and the Senate
participates in executive acts In the
view OF counsel, the separation of
powers admits of no middle course
and the more you unite executive and
legislative functions in the same per-
son, the less incongruous it is still
further to unite them. To combine
the power to vote with the power to
veto, is not SO strange as to give the
power to vote without the power to
veto. We think that Montesquieu and
Madison would have been perplexed
by this paradoxical development cf the
theory which they eXpounded SO
lucidlv.
The concluding 12 pages of the brief
is devoted to showing the utter ground
Iessness of the theory of suspension
from office, and the finality of Legisla-
ture's action on qualifications, of
members, referring to the qualifications
of MIR. Watson as member of the joint
assembly. In conclusion the attorneys
say;
The Senate OF the United States may
in case involving the title of a person
claiming seat therein, inquire into
the proceedings of the joint assembly
and into the conduct of the persons
composing it, since it is body organ
lied under a Federal statute; but it
has no jurisdiction to inquire into the
elections, returns and qualifications of
the members. This is matter that
rests exclusively with each house. The
Senate of the United States must de-
termine all questions arising out of the
proceedings Of the electors, 7 but who
sustain the character OF electors is to
be determined by the legislative body
of the State. =