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CENOA LIERATA NEW YORK

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.

ton.

LIST OF THE SENATORS.

The CHAIR then stated the fact of Mr. Robbins having MAINE-Peleg Sprague, Ether Shepley.

been returned as elected, and his credentials read at the NEW HAMPSHIRE--Samuel Bell, Isaac Hill.

last session, and left it to the Senate to determine on the MASSACHUSETTS-Nathaniel Silsbee, Daniel Webster. course to be pursued as to the qualifying of either of RHODE ISLAND-Nehemiah R. Knight, * Asher Rob

those gentlemen. bins, * E. R. Potter.

Mr. POINDEXTER rose and said, that it was not his in. CONNECTICUT-Gideon Tomlinson, Nathan Smith.

tention to offer any opinion on the merits of the course VERMONT-Samuel Prentiss, Benjamin Swift.

which had been adopted by the State of Rhode Island, but NEW YORK-Silas Wright, N. P. Tallmadge.

merely to say, that it seemed to him to be a matter of NEW JERSEY-T. Frelinghuysen, S. L. Southard.

course that the Senator first elected, and whose credenPENNSYLVANIA-William Wilkins, Samuel McKean.

tials were presented at the last session of the Senate, DELAWARE-John M. Clayton, Arnold Naudain.

should be permitted to approach the Chair and take the MARYLAND-Ezekiel F. Chambers, Joseph Kent.

oath; and that the other gentleman, who contests the VIRGINIA-Wm. C. Rives, John Tyler.

election of Mr. ROBBINS, should present his credentials NORTH CAROLINA-Bedford Brown, W. P. Mangum. either to the Committee on Elections or the Committee on SOUTH CAROLINA-J. C. Calhoun, William C. Pres: the Judiciary, and that the Senate should afterwards re

ceive the report of that committee, and determine which GEORGIA- John Forsyth, John P. King.

of the gentlemen is duly elected. But he was not preKENTUCKY-George M. Bibb, Henry Clay:

pared at this time to question the election of the gentleTENNESSEE-Felix Grundy, Hugh L. White.

man whose credentials were before the Senate at the last OH!0—Thomas Ewing, Thomas Morris.

session, until a committee of the Senate should have decided LOUISIANA-G. A. Waggaman, Alexander Porter.

that he was not fairly elected. He was not prepared at INDIANA-Wm. Hendricks, John Tipton.

present to offer an opinion on these points, bist ne thought MISSISSIPPI–George Poindexter, John Black.“

that the Senator in his seat suould approach and take the ILLINOIS-Elias K. Kane, John M. Robinson.

oath. ALABAMA--William R. King, Gabriel Moore.

He then moved that Mr. Robbins do take the customary MISSOURI— Thomas H. Benton, Lewis F. Linn.

oath.

Mr. CLAY suggested the propriety of making the col

lateral motion, that the credentials of Mr. Potter be laid Monday, DECEMBER 2.

on the table. At 12 o'clock, the PRESIDENT protem., the Hon. Hugh

On motion of Mr. POINDEXTER, it was then ordered L. Weite, of Tennessee, in the absence of the Vice that the credentials of Mr. Porrer do lie on the table. President, called the Senate to order.

Mr. KING thought it would be the most proper course The CHAIR presented the credentials of Elisha R. Por. to leave both the gentlemen where they were, until it TER, elected a Senator from Rhode Island, for which State should be determined which was entitled to the seat. He Asker Robbins bad been previously elected, and had, in adverted to the practice of the House, in referring cases pursuance of such election, laken his seat in the Senate; of contested elections to the Committee on Elections, and also a certificate that the clection of the said AS er whose report had sometimes the effect of ousting the sitRobbins was null and void; which documents were read. ting member. As this was a novel case, he thought

would be better that neither of the individuals should be er in the case marked with an (*) the scae was claimed by both of qualified until it should be determined who was entitled the gentlemen named.

to the seat. It might happen that an important question Vol. X.-1

SENATE.)

Rhode Island Election.

[Dec. 2, 1833.

would be determined by a single vote; and in that case, for the admission to his seat of the gentleman who was if it should be afterwards discovered that a member was first elected, and for leaving the validity of the right to illegally admitted to a seat, the decision might be vitiated. be afterwards examined by a committee of the Senate. He suggested that, for the present, the credentials of Mr. Mr. KING congratulated the Senator from Kentucky Robbins should also lie on the table, and that neither on the knowledge which he had acquired of this case, should be qualified.

For his part, he had not made himself so well acquainted Mr. CLAY admitted the delicacy of the question now with the facts, and be 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 constitutior, 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 elected triple 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 com. be 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 entiiled 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. llis 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, be 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 opin- take his seat until he bad established it. With the genion now as at any time, having, by examination, made tleman first elected he had the pleasure of an intimate himself acquainted with the whole subject. But the pro-acquaintance, and, if his right to the seat should be de. per course, at this time, was to determine who should clared valid, he should be glad to continue that intercourse. have the temporary occupation of the seat which was con- He was not prepared, however, at this moment, to go into tested. By the laws of Rhode Island, a time had been ap- an argument on the question whether, under the constipointed for the election of United States' Senators; by the tution, laws, and usages of Rhode Island, that gentleman laws, that time had been fixed previous to the expiration was duly elected or not. If the gentleman from Kenof the term of the existing Senators; by the laws, the tucky was prepared to go into the question, he would election of Senator bad taken place prior to the 4th of confess that he was not ready to say who was the proper March last; and, in conformity to these laws, Mr. Robbins person to be qualified. He hoped there would be no had been elected, his credentials were certified, presented precipitancy, but that the subject would be referred to a to the Senate, recognised, and recorded. So far, there select committee for examination. fore, 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 baps 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 vzuld pronounce the election of Mr. to enable them to come to a correct conclusion. The re, Robbins valid, they pronounced it to be invalid; thus, by naik 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, le 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 culpa. other 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 votel which their course might be guided. There were analo

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 derends, 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 reignty of the States; and the Senate had been termed to some weight.

“the masters of the States." I 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 lias 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 pose that the opinion he had expressed with regard to similarly constituted with ours, to have such questions be- the duty of the Senate would subject him to the imputafore them, and the course of proceeding in them was the tion of improper motive. The subject was one which only plain and obvious one that had hitherto always been all knew would come before the Senate. Senators had a pursued. Without meaning, in the slightest degree, to right to form their opinions; and he had consequently prejudice the rights of the gentleman who claimed the looked into the subject, and formed one for himself. But seat to which Mr. Rondins had first been elected, Mr. he had expressed no opinion with regard to the question C. held it to be perfectly right and proper to give to Mr. between the two individuals claiming seats in that body. Roubins the contested seat, until a proper investigation He had only expressed his opinion with regard to what should decide to whom it belonged. He had risen, he said, he conceived ought to be the course of the Senate at the merely to call the attention of the Senate to analogous present time. Nothing was clearer than that the State of cases, without intending to express any opinion as to which Rhode Island, by the constitution, was entitled to two reof the gentlemen bad ultimately the strongest claim to presentatives in that body. It was equally clear that, the seat. No difficulty could possibly arise by giving the when she had appointed her Senators, her right, for seat to the gentleman first elected, until the decision should the time being, ceased; her jurisdiction over the Senate be made; and in any event he was satisfied that the State passed from her, and she was without power, until the of Rhode Island would be ably and faithfully repre-constitutional period for her again to exercise her right of sented.

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 egu- 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 elecdecide, in this summary way, who shouli be her repre- tion of Mr. Robbins, then, should there be a re-action in sentative. The certificates of the two members, given that Legislature, a fourth Senator might be sent. It was,

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 infordecisive. 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 Mr. EWING said, the question was an important one; the Senator they would have been bound to receive and the true question was, whether the vacancy was filled on the 5th of March, and then inquire into the error, if prima facie, not whether it was filled properly. And if it one it were, subsequently detected. Such was his view, was filled, what was the evidence? It was nothing short and he had obtained it without resorting to any other me- of a certificate from the Governor of the State, forwarded dium of investigation than that of common sense. to the Senate, at the proper time and in the usual manner,

Mr. FRELINGHUYSZN 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 Stale, 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 bad 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 bad 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-liad presented the House them and the question; the matter was placed beyond the with two certificates. He did not here recognise the mat. reach of State political collisions.

ter as a contested election; the House bad, 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 bis 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 bad 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- Rodoiss'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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