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GALES & SEATON'S

Register of Debates in Congress.

TWENTY-THIRD CONGRESS....FIRST SESSION:

FROM DECEMBER 2, 1833, to june 30, 1834.

DEBATES IN THE SENATE.

LIST OF THE SENATORS.

MAINE-Peleg Sprague, Ether Shepley.
NEW HAMPSHIRE--Samuel Bell, Isaac Hill.
MASSACHUSETTS--Nathaniel Silsbee, Daniel Webster.
RHODE ISLAND-Nehemiah R. Knight, Asher Rob-
bins, E. R. Potter.

CONNECTICUT-Gideon Tomlinson, Nathan Smith.
VERMONT-Samuel Prentiss, Benjamin Swift.
NEW YORK-Silas Wright, N. P. Tallmadge.
NEW JERSEY-T. Frelinghuysen, S. L. Southard.
PENNSYLVANIA-William Wilkins, Samuel McKean.
DELAWARE-John M. Clayton, Arnold Naudain.
MARYLAND-Ezekiel F. Chambers, Joseph Kent.
VIRGINIA-Wm. C. Rives, John Tyler.
NORTH CAROLINA-Bedford Brown, W. P. Mangum.
SOUTH CAROLINA-J. C. Calhoun, William C. Pres-

ton.

GEORGIA-John Forsyth, John P. King.
KENTUCKY-George M. Bibb, Henry Clay.
TENNESSEE-Felix Grundy, Hugh L. White.
OH!O-Thomas Ewing, Thomas Morris.
LOUISIANA-G. A. Waggaman, Alexander Porter.
INDIANA-Wm. Hendricks, John Tipton.
MISSISSIPPI-George Poindexter, John Black."
ILLINOIS-Elias K. Kane, John M. Robinson.
ALABAMA--William R. King, Gabriel Moore.
MISSOURI-Thomas H. Benton, Lewis F. Linn.

MONDAY, DECEMBER 2.

At 12 o'clock, the PRESIDENT protem., the Hon. Huan L. WHITE, of Tennessee, in the absence of the Vice President, called the Senate to order.

The CHAIR presented the credentials of ELISHA R. POT. TER, elected a Senator from Rhode Island, for which State ASHER ROBBINS had been previously elected, and had, in pursuance of such election, taken his seat in the Senate; and also a certificate that the election of the said ASHER ROBBINS was null and void; which documents were read.

In the case marked with an (*) the seat was claimed by both of

the gentlemen named.

VOL. X.-1

The CHAIR then stated the fact of Mr. ROBBINS having been returned as elected, and his credentials read at the last session, and left it to the Senate to determine on the course to be pursued as to the qualifying of either of those gentlemen.

Mr. POINDEXTER rose and said, that it was not his intention to offer any opinion on the merits of the course which had been adopted by the State of Rhode Island, but merely to say, that it seemed to him to be a matter of course that the Senator first elected, and whose credentials were presented at the last session of the Senate, should be permitted to approach the Chair and take the oath; and that the other gentleman, who contests the election of Mr. ROBBINS, should present his credentials either to the Committee on Elections or the Committee on the Judiciary, and that the Senate should afterwards receive the report of that committee, and determine which of the gentlemen is duly elected. But he was not prepared at this time to question the election of the gentleman whose credentials were before the Senate at the last session, until a committee of the Senate should have decided that he was not fairly elected. He was not prepared at present to offer an opinion on these points, but he thought that the Senator in his seat should approach and take the

oath.

He then moved that Mr. ROBBINS do take the customary oath.

Mr. CLAY suggested the propriety of making the collateral motion, that the credentials of Mr. POTTER be laid on the table.

On motion of Mr. POINDEXTER, it was then ordered that the credentials of Mr. POTTER do lie on the table.

Mr. KING thought it would be the most proper course to leave both the gentlemen where they were, until it should be determined which was entitled to the seat. He adverted to the practice of the House, in referring cases of contested elections to the Committee on Elections, whose report had sometimes the effect of ousting the sitting member. As this was a novel case, he thought it would be better that neither of the individuals should be

qualified until it should be determined who was entitled to the seat. It might happen that an important question

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would be determined by a single vote; and in that case, if it should be afterwards discovered that a member was illegally admitted to a seat, the decision might be vitiated. He suggested that, for the present, the credentials of Mr. ROBBINS should also lie on the table, and that neither should be qualified.

[DEC. 2, 1833.

for the admission to his seat of the gentleman who was first elected, and for leaving the validity of the right to be afterwards examined by a committee of the Senate. Mr. KING congratulated the Senator from Kentucky on the knowledge which he had acquired of this case. For his part, he had not made himself so well acquainted Mr. CLAY admitted the delicacy of the question now with the facts, and he was not so well prepared to argue presented to the Senate, but expressed a hope that it the question, and to decide who was entitled to the seat would be examined with a becoming firmness, and a reso- under the constitution, laws, and usages of Rhode Island. lution to act justly. At present, Rhode Island stood in He wished to act in such manner as would be perfectly the Senate with three representatives; and he was willing fair and respectful to the State, and to the gentlemen to admit that, if he had the power, there was no State in claiming the seat. It was his wish that the State should the Union to which he would be more ready to allow a be represented by the Senator she had duly electedtriple representation. But the constitution prescribed a he would not say who that was; it might be this genrestriction, and she could only have her two Senators. tleman, or it might be the other. He thought it would The Senator from Alabama had complained that it would be well, as it was a novel case, to refer it to a select combe doing injustice to the State to admit her three Senators, mittee; and whenever the report of that committee should and therefore he desired to limit her to one Senator. be submitted, he would be prepared to say which of the That would be a course in opposition to the rights of that gentlemen was, in his opinion, entitled to the seat. State, and of every other State in the Union, because the If the State was to be deprived of a Senator, it was the State of Rhode Island had a right to her two voices on that fault of the State herself. He was prepared to give her floor, and on every question, and the Senator could not all she was entitled to, but no more. She was entitled to say that she should have but one. her representatives on this floor who were constitutionally It was not only the right of Rhode Island, but of every elected. But who were they? There was no dispute as State, to have two voices on every question which could to one of the Senators of the State. As to the other, arise; and the first act of the Senate, by which the States whose credentials were presented at the last session, his could be secured in this right, was the verification of claims were contested. Ilis credentials were, it was true, those who composed that body. It was the right, and presented last session, in the common form, and were the imperative duty of the Senate, to say who were to be received without any examination, as was usual. In this the Senators, and who were the individuals to be asso-way it was impossible to know the authenticity of any creciated in the performance of the important duties which dentials. They were received by the Senate as a matter devolved upon them. It was now the time to decide (not of course, and no one could be prepared to say whether conclusively, he admitted) which were the two members documents presented in this manner were genuine or from the State of Rhode Island to be admitted to their forged. He referred to the practice of the House of Repseats. The question would then come up, as to the ulti-resentatives in cases of contested elections, and stated that mate right of either of the contesting members. On this there an individual, whose right was contested, did not question he was, perhaps, as well prepared to give his opinion now as at any time, having, by examination, made himself acquainted with the whole subject. But the proper course, at this time, was to determine who should have the temporary occupation of the seat which was contested. By the laws of Rhode Island, a time had been appointed for the election of United States' Senators; by the laws, that time had been fixed previous to the expiration of the term of the existing Senators; by the laws, the election of Senator had taken place prior to the 4th of March last; and, in conformity to these laws, Mr. ROBBINS had been elected, his credentials were certified, presented to the Senate, recognised, and recorded. So far, therefore, every thing was conducted in conformity with the Mr. CHAMBERS observed that the Senate was perconstitution and the laws of Rhode Island. In the month haps placed in rather a delicate situation, and should, of October last, another session of the General Assembly therefore, do no act to the prejudice of those who, like of the State was held, and, without waiting to see if the himself, had not given the subject a sufficient examination United States Senate would pronounce the election of Mr. to enable them to come to a correct conclusion. The reROBBINS valid, they pronounced it to be invalid; thus, by mark was certainly true that the State of Rhode Island their own act, and without any consultation with the Unit- was entitled to be at once properly represented on that ed States' Senate, declaring the first election null and void, floor; and a case had been put by the Senator from Alaand electing another Senator, who had now presented his bama, by which she might be prevented from having credentials. The gentleman first elected, and who had more than one voice; but this, Mr. C. said, could not be in the prima facie right to his seat, had, in conformity to consequence of any act of the Senate. Other cases might law, presented his credentials; his was the prior, and arise which would leave to a State but one Senator to therefore the valid deed; and therefore, in compliance represent her; a death or a resignation would create a with every law and usage, he ought to be admitted. But vacancy which could only be filled by the constitutional he desired it to be understood that, in taking this course, mode of election; but in such cases the Senate of the he desired to do nothing which would preclude to the United States could not in the slightest degree be culpaother gentleman the privilege of a full investigation of his ble. Was the Senator from Alabama prepared to say that right. He had used the term prima facie, and he re- the State of Rhode Island should not be properly reprequested the Senate to look at the credentials presented sented on that floor, because the question of right to one by Mr. POTTER, which admitted on their face the pre-of her seats was still undecided? For his part, Mr. C. vious election, the validity of which it disputed, on the said he was not prepared to come to any such decision. ground of some non-conformity to forms. He had, how- If there were no parallel case precisely similar to the preever, risen only, without meaning to express any opinion sent, there were certainly some plain landmarks by as to the ultimate right of either of the members, to vote which their course might be guided. There were analo

take his seat until he had established it. With the gentleman first elected he had the pleasure of an intimate acquaintance, and, if his right to the seat should be declared valid, he should be glad to continue that intercourse. He was not prepared, however, at this moment, to go into an argument on the question whether, under the constitution, laws, and usages of Rhode Island, that gentleman was duly elected or not. If the gentleman from Kentucky was prepared to go into the question, he would confess that he was not ready to say who was the proper person to be qualified. He hoped there would be no precipitancy, but that the subject would be referred to a select committee for examination.

DEC. 2, 1833.]

Rhode Island Election.

[SENATE.

gous cases to be found in the histories of all legislative under the authority of the State, were both fairly before bodies; and it had been uniformly settled, in all contest- the Senate. Should the Senate at once proceed to say ed elections, that the party having the priority of claim that the second was of no importance? Should they be so held his seat until his right was contested, and a decision kind to Rhode Island as to take the appointment of her had against him. But the gentleman from Alabama con- Senator out of her hands, and to say that, when she detends, said Mr. C., that in that event the proceedings of clared the first election null and void, she had made a that body might be vitiated. If this doctrine could be false declaration? This was a point involving the sovemaintained, Mr. C. admitted that the argument was entitled to some weight.

reignty of the States; and the Senate had been termed "the masters of the States." It became them, then, to But could (asked Mr. C.) any measure be carried consider this point with all the attention and deliberation through the Senate, that could possibly be jeopardized by which its importance demanded. He would not detain allowing the Senator first elected to retain his seat? We the Senate with an argument at that time. The subject have no rights, said Mr. C., that we have not in common was new to him, and, under the circumstances, he asked with the House. Have there not been cases of contested time. He therefore moved to postpone the further conelections, and has any law ever been rendered inoperative sideration of the subject. The motion for postponement because the member first returned, and whose seat had was lost; yeas 16, nays 17. been subsequently vacated, had voted for or against it? | Mr. CLAY said he would add but a few words to what Would the President, in the plenitude of his power, veto he had already said upon the subject. He did not supa law so passed? It was incident to all legislative bodies similarly constituted with ours, to have such questions before them, and the course of proceeding in them was the only plain and obvious one that had hitherto always been pursued. Without meaning, in the slightest degree, to prejudice the rights of the gentleman who claimed the seat to which Mr. ROBBINS had first been elected, Mr. C. held it to be perfectly right and proper to give to Mr. ROBBINS the contested seat, until a proper investigation should decide to whom it belonged. He had risen, he said, merely to call the attention of the Senate to analogous cases, without intending to express any opinion as to which of the gentlemen had ultimately the strongest claim to the seat. No difficulty could possibly arise by giving the seat to the gentleman first elected, until the decision should be made; and in any event he was satisfied that the State of Rhode Island would be ably and faithfully represented.

pose that the opinion he had expressed with regard to the duty of the Senate would subject him to the imputation of improper motive. The subject was one which all knew would come before the Senate. Senators had a right to form their opinions; and he had consequently looked into the subject, and formed one for himself. But he had expressed no opinion with regard to the question between the two individuals claiming seats in that body. He had only expressed his opinion with regard to what he conceived ought to be the course of the Senate at the present time. Nothing was clearer than that the State of Rhode Island, by the constitution, was entitled to two representatives in that body. It was equally clear that, when she had appointed her Senators, her right, for the time being, ceased; her jurisdiction over the Senate passed from her, and she was without power, until the constitutional period for her again to exercise her right of appointment should recur. To illustrate this position, he Mr. KING said a parallel case had been already before would ask, who was the representative of Rhode Island the Senate. In 1825, Mr. Lanman brought his credentials from the 4th of March, the date of Mr. ROBBINS's apfrom the Governor of Connecticut, as a Senator from that pointment, until October, the date of Mr.POTTER's claim? State. They were read, and, on a motion of Mr. Holmes, Supposing the Senate had convened on the 5th of March, of Maine, that he should be qualified and take his seat in as would have been the case had the present Executive the Senate, a debate ensued. On motion of Mr. Van lost his election, who then would the Senate have been Buren, Mr. Lanman had leave to be heard at the bar of bound to receive as the Senator from Rhode Island? the Senate, in relation to his right to a seat. The ques-There could have been no doubt. Again: supposing, at tion was referred to a committee, and Mr. Eaton made an any time between the 4th of March and October, the unfavorable report. The Legislature of Connecticut had Senate had been convened on some extraordinary occaadjourned when the appointment was made, and the Go-sion; would there have been any doubt in this case? He vernor had no authority to make the appointment. The would make still another supposition. Supposing Rhode Senate refused to receive him as a member. Island had not elected a third Senator; there would then Mr. KANE said that he wanted time for the further have been no doubt with regard to the validity of the consideration of the subject. He did not admit that the credentials presented by Mr. ROBBINS. Where, then, question before them was an unimportant one. What was was the difficulty with regard to the present duty of the that question? Two individuals had presented certificates, Senate? They were, most plainly, bound to act, with realike valid, claiming seats in that body; and it was for the ference to the candidate holding the regular certificate, Senate to decide which party was entitled to admission. as they would have acted had circumstances permitted him No contest of this character had ever arisen in that body. to have presented his certificate earlier. It was not a case where one member had brought a regu- He admitted that the present was an important case. lar certificate of election, entitling him to hold his seat as There had been cases in which Senators had been requestmatter of course until that certificate should be set aside; ed to resign; there had been cases of instruction; and but it was a case in which two individuals had brought there had been cases where Legislatures had declared certificates, both claiming to be valid; and it was for the that Senators did not express the will of their constituSenate to decide upon the characters of these certificates. ents; but this was the first case where a Legislature, The case was a new one, and it was of the utmost im- having exhausted its constitutional power to choose a portance to the interests of Rhode Island and of the Senator, had attempted, at the expiration of a half or a Union that it should be fairly and deliberately met by third of a year, to choose another. It was, indeed, an imthe Senate. portant question; one involving the constitutional rights The main argument of some of the gentlemen who of the Senate. The Senators were elected, to remain had preceded him had been the right of Rhode Island to there during their constitutional terms, and that body was be represented in that body. No one questioned this thus removed, in part, from the influence of temporary right; but it seemed to him that such right would not be changes in the popular opinion. But if it were permitted of much value to Rhode Island, if the Senate were to to the Legislature of Rhode Island to disregard the elec decide, in this summary way, who should be her repre- tion of Mr. ROBBINS, then, should there be a re-action in The certificates of the two members, given that Legislature, a fourth Senator might be sent. It was,

sentative.

SENATE.]

Rhode Island Election.

[DEC. 2, 1833.

indeed, an important question, how far the Senate should all upon this question? Had they not, on the contrary, lend itself to support changes of this character? But this by the election of Mr. ROBBINS, referred the matter to a was not the question before the Senate. The true ques- higher tribunal than themselves, that of the Senate of the tion was, should the Senate proceed to receive the Sena- United States, which was now alone able to decide upon tor elect from Rhode Island? Two Senators presented the case? He again expressed himself to be ignorant of the their credentials, both documents duly authenticated, but entire merits of the question; he had never seen the statute one possessing priority of date. Was the circumstance of of Rhode Island, and hoped he should not be called upon priority of no importance? He considered it a matter to give his vote until he had acquired the necessary infor decisive. The State had elected-she had fairly chosen mation. He would conclude by moving that they be reher Senator. Afterwards, it appears, some mistake was ferred to a committee of inquiry. imputed, and a new election had. Let the Senate take the Senator they would have been bound to receive on the 5th of March, and then inquire into the error, if one it were, subsequently detected. Such was his view, and he had obtained it without resorting to any other medium of investigation than that of common sense.

Mr. EWING said, the question was an important one; and the true question was, whether the vacancy was filled prima facie, not whether it was filled properly. And if it was filled, what was the evidence? It was nothing short of a certificate from the Governor of the State, forwarded to the Senate, at the proper time and in the usual manner, Mr. FRELINGHUYSEN observed, that he did not feel and now placed among its records. If, then, this evidence the embarrassment which had been expressed by the was received in the proper time and manner, what was the member from Illinois, and he would assign the reason. objection? Who was to determine on the constitutionality The gentleman was embarrassed by the fact that two of an act not subject to the decision of the Legislature? Senators had been presented with conflicting appoint- A Legislature could repeal and modify its own acts; but ments; but it was the business of the Senate to decide on one Legislature had no right to pronounce on the conthe legality of any and every appointment to a seat among stitutionality of the acts of a preceding Legislature, except them; and the views of the gentleman were therefore not when the whole power was conferred upon it, which was not authorized by the constitution. [Here Mr. KANE ex- the case in any State, nor in the United States. The acts plained that he was embarrassed for the want of a know- of the Legislature were binding; and courts only, or the ledge of the constitution of Rhode Island.] Mr. F. said, the Senate of the United States, could declare them void. Legislature of Rhode Island were not called upon to decide The gentleman from New York had said that the latter the merits of an appointment. Mr. ROBBINS had appeared choice of a Senator was of more force than the former; at the last session, his credentials were read and filed on the but if their power to act had expired, it was of no force records of the Senate, and the Senate had settled the ques- at all. The mere fact that a legal choice had been made, tion of his election; but, in the intermediate time, the Legis- which gentlemen had not denied, took it from the power lature of Rhode Island had assumed the province of the Unit- of a subsequent Legislature to elect another; and such an ed States' Senate, and had declared the seat vacant. It was election would, of course, be nugatory. The subject was the business of each House of Congress to decide on the indeed worthy of investigation, and he was ready to inqualifications of its members; and the Senate having settled vestigate. the point in the present instance, there could be no va- Mr. BIBB could not have believed that such a case cancy until that decision should be reversed by the same would ever have been brought before that House-could body. The State Legislature had exceeded their func-ever, from the very constitution of the United States, tions; it was not in the power of a Legislature to vacate have arisen. He felt surprised at the astuteness of the a seat in the United States' Senate; the constitution had human mind, and at the aptitude which it at the same taken it out of their reach, and had reserved it to the time possessed of creating difficulties where none existed. Senate. The Senate should regard it as a question of The constitution declared that two Senators should be qualifications, and, until that should be decided, there sent from every State; one Senator from Rhode Island could be no doubt that the first elected was entitled to already sat in that House, and Mr. ROBBINS had been the seat. If it were not so, the constitution was a dead appointed by the Legislature of Rhode Island to fill the letter. The vacancy could occur only by the action of remaining vacancy. The same Legislature, however, has the Senate; the State Legislature could not step between since sent another candidate-had presented the House them and the question; the matter was placed beyond the with two certificates. He did not here recognise the matreach of State political collisions. ter as a contested election; the House had, in the present Mr. F. had one word to say in regard to Mr. Lanman. stage of proceedings, nothing to do with such a subject. His rejection was made on the Senate's own motion; there Whether Mr. ROBBINS had been duly elected or not, was was no petition, no representation, no remonstrance, pre- not here the question. He (Mr. B.) was perfectly unsented on the subject. The appointment was so clearly void, biassed; he had not been able to bestow much attention that the Senate saw itat once, and acted accordingly. But upon the subject; would willingly have postponed the the admission of Mr. ROBBINS corresponded with the au- consideration of the subject until to-morrow. He was, thority of the State, and his seat could be vacated only however, called upon to perform a duty instanter, and, by the Senate's authority. even under such circumstances, he had no hesitation in Mr. WRIGHT, of New York, regretted extremely to saying that none other than Mr. ROBBINS could be elected. see such a question as the present before the House. He was He had formed no previous judgment upon the subject, almost wholly ignorant of the nature of the case, and of the excepting as regarded the two certificates, and the light in peculiar laws by which Rhode Island was governed. He which such a matter was viewed by the constitution. Mr. wished to know whether he was to be called upon to pro- ROBBINS's certificate was unexceptionable; but the next nounce upon a preliminary or upon a definitive measure--certificate told them that the Senate of Rhode Island, in upon the propriety of electing, or upon the election of either electing that gentleman, had neglected to comply with a of the contending candidates. He must confess that the certain act, and had in other respects acted prematurely; conduct of the Legislature of Rhode Island appeared to that Mr. ROBBINS's election was therefore null and void, him a little extraordinary. They send to the Senate of and that they had subsequently chosen another gentleman. the United States a Senator, whom they declare, by the The Legislature of Rhode Island undertook to decide the certificate granted him, to have been duly elected; and, matter! Did it belong to the Legislature of Rhode Island at a subsequent session, they send another, declaring their to do this? The constitution says not; but the right of previous election to be null and void. Had the Legisla- decision rested with the members of this House. Mr. PoTture of Rhode Island the power to do this to decide at TER's certificate acknowledged that Mr. ROBBINS Was

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