[Twenty-third Corgress-First session.]

ELISHA R. POTTER vs. ASHER ROBBINS,

of Rhode Island.

February 4 1833, Mr. Knight, of Rhode Island, presented in the Senate the credentials of Asher Robbins, elected a Senator from Rhode Island for the term beginning March 4, 1833, which were read. Mr. Robbins had been elected January 19, 1833; his credentials dated January 28, 1833. December 2, 1833, the first day of the first meeting of Congress in said term, the President of the Senate communicated an act of the State of Rhode Island declaring the election of January 19 void; also credentials of election to the Senate of Elisha R. Potter for the said term. The act had passed in October, 1833. Mr. Potter had been elected November 1, 1833; his credentials dated November 5, 1833. After debate on the question whether Mr. Robbins should be admitted at once to the seat to hold until the Senate should have decided to which of the contestants it belonged, it was determined that Mr. Robbins be admitted to take the oath, which he did December 2, 1833, and the credentials of Mr. Potter were laid on the table. December 5, 1833, the credentials of Mr. Potter were referred to a select committee of five elected by the Senate; and December 9 the credentials of Mr. Robbins were referred to the same committee. Majority and minority reports were made by the committee. The majority reported that the body electing Mr. Robbins was the legislature of Rhode Island; also a resolution "that Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate," which resolution passed in the affirmative May 27, 1834, by a vote of 27 yeas to 16 nays. The minority reported that the choice of Mr. Robbins was not made by the legislature of the State; that the terms of the governor and senators forming part of that body had expired in May, 1832, before the election of Mr. Robbins; that there had been no new election by the people; and that the act passed in January, 1832, by the legislature, providing that in case of a failure at any annual election by the people of the election of a governor, lieutenant-governor, or a quorum of the Senate, such of those officers who should then be incumbents should continue in office until their successors should be duly qualified, under which act the governor and senators referred to were holding office at the time of the election, was in violation of the charter granted to the State in 1633, and was null and void; and report that Mr. Potter was duly elected.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, 1st sess. 23d Cong., 1833-34; the majority report (Report No.139, Senate Documents, 1st sess. 23d Cong., vol. 2, 1833-34); and the minority report (Report No. 246, Senate Documents, 1st sess. 23d Cong., vol. 3, 1833-'34), with the exception of certain accompanying documents, which may be found in the volume of Senate Documents containing the report.

The debate on the prima facie right of Mr. Robbins to the seat is found in Congressional Debates, vol. 10, part 1, 1833-34, pages 2-11. A debate on the right of the minority to make report, and on the question whether a minority report should be responsive to the majority report, is found in the same volume, pages 804-807, 1229, 1230, 1252–1257. Special references to the other debates are inserted below. The vote on agreeing to the resolution reported by the committee was taken without debate.

The references here given are all either to the Senate Journal or to the Congressional Debates (Gales & Seaton). The case is also reported in the Congressional Globe and the Register of Debates (Green).

MONDAY, February 4, 1833.

Mr. Knight communicated the credentials of the Hon. Asher Robbins, appointed a Senator by the legislature of the State of Rhode Island and Providence Plantations for the term of six years, to commence on the 4th day of March next; which were read.

MONDAY, December 2, 1833.

The President communicated an act of the general assembly of the State of Rhode Island and Providence Plantations, declaring void the election by the general assembly of that State, on the 19th of January last, of Asher Robbins to the office of Senator to represent that State in the Senate of the United States for the term of six years from the 3d day of March last; and the certificate of the governor and secretary of that State of the election, by the said general assembly, of Elisha R. Potter to the same office; which act and certificate were read; and,

On motion by Mr. Poindexter,

Ordered, That they be laid on the table.

On motion by Mr. Poindexter that the oath prescribed by law be now administered to Mr. Robbins, whose credentials were received at the last session,

A motion was made by Mr. Benton that said motion be referred to a select committee to consider and report thereon.

It was determined in the negative-yeas 15, nays 19.

[A reference to the debate that took place on the two last motions is given in the head-note, it being pages 2-11 of the references.]

On motion by Mr. Benton, the yeas and nays being desired by one-fifth of the members present,

Those who voted in the affirmative are Messrs. Benton, Brown, Grundy, Hill, Kane, King of Alabama, Morris, Rives, Robinson, Shepley, Tallmadge, Tipton, White, Wil kins, and Wright.

Those who voted in the negative are Messrs. Bell, Bibb, Chambers, Clay, Ewing, Frelinghuysen, Hendricks, Kent, Knight, Mangum, Moore, Naudain, Poindexter, Prentiss, Silsbee, Smith, Swift, Tomlinson, and Tyler.

The question recurring on the motion by Mr. Poindexter, "that the oath prescribed by law be administered to Mr. Robbins," it was determined in the affirmative; and the oath was accordingly administered to Mr. Robbins and he took his seat in the Senate

WEDNESDAY, December 4, 1833.

On motion by Mr. Wright that the proceedings of the legislature of the State of Rhode Island, now upon the table of the Senate, showing the appointment of Elisha R. Potter as a Senator to represent that State in the Senate of the United States, be referred to a select committee of five members, to inquire and report upon the claim of the said Elisha R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins; and, On motion by Mr. Clay,

Ordered, That the said motion be laid on the table.

[On Mr. Wright's motion was a brief debate on the method of appointment of select committees, which is found on pages 13, 14 of the volume of Congressional Debates above referred to.]

THURSDAY, December 5, 1833.

On motion of Mr. Wright the Senate resumed the consideration of the motion submitted by him yesterday, to refer to a select committee the claim of Elisha R. Potter to a seat in the Senate; and it was amended and agreed to, as follows:

"Resolved, That the proceedings of the legislature of the State of Rhode Island, now upon the table of the Senate, showing the appointment of Elisha R. Potter as a Senator to represent that State in the Senate of the United States, be referred to a select committee, to be elected by the Senate, to inquire and report upon the claim of the said Elisha R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins."

Ordered, That Mr. Poindexter, Mr. Rives, Mr. Frelinghuysen, Mr. Wright, and Mr. Sprague be the committee.

[Some remarks made on this motion of Mr. Wright are found on page 19 of the volume of Congressional Debates above referred to.]

On motion by Mr. Poindexter,

MONDAY, December 9, 1833.

Ordered, That the credentials of Mr. Robbins be referred to the select committee appointed on the claim of Elisha R. Potter to a seat in the Senate.

TUESDAY, March 4, 1834.

Mr. Poindexter, from the select committee to whom had been referred the credentials of Asher Robbins, appointed a Senator in Congress from the State of Rhode Island for the term of six years, to commence on the 4th day of March, 1833, and the proceedings of the legislature of said State, convened on the last Monday of October, 1833, declaring void the appointment of said Robbins, and the appointment of Elisha R. Potter for the said term, made a report,* accompanied by the following resolution:

"Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate."

[Here followed a debate on the right of the minority of the committee to submit a report, a reference to which is given in the head-note, it being pages 804-807 of the references.]

TUESDAY, April 1, 1834.

On motion by Mr. Wright that he have leave to present to the Senate a paper containing the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Robbins and Elisha R. Potter, by the State of Rhode Island, to the Senate of the United States.

[A reference to the debate on this motion is given in the head-note, it being pages 1229, 1230 of the references.]

On motion by Mr. Ewing,

Ordered, That it be laid on the table.

FRIDAY, April 4, 1834.

On motion by Mr. Wright, the Senate resumed the consideration of his motion to present to the Senate a paper containing the views and opinions of the minority of the select committee to whom had been referred the appointments of Asher Robbins and Elisha R. Potter by the legislature of Rhode Island to the Senate of the United States; and,

Found on page 102.

On motion of Mr. Forsyth,

Ordered, Tha it be laid on the table, and that the said paper, with the documents therein referred to, except those marked G, H, and I, be printed.

[A reference to the debate following Mr. Wright's motion is given in the head-note, it being pages 1252-1257 of the references.]

[The consideration of the report was successively postponed April 10, May 8, May 12, and May 19.]

TUESDAY, May 27, 1834.

The Senate resumed the consideration of the report of the select committee on the respective claims of Messrs. Robbins and Potter to a seat in the Senate; and, on the question to concur in the resolution with which it concludes, as follows:

"Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress from the State of Rhode Island, is entitled to his seat in the Senate,"

It was determined in the affirmative-yeas 27, nays 16.

On motion of Mr. Wright, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs Bell, Bibb, Calhoun, Chambers, Clay, Clayton, Ewing, Frelinghuysen, Hendricks, Kent, Knight, Leigh, McKean, Mangum, Naudain, Poindexter, Porter, Preston, Silsbee, Smith, Southard, Sprague, Swift, Tipton, Tomlinson, Waggaman, and Webster.

Those who voted in the negative are Messrs. Benton, Brown, Forsyth, Grundy, Hill, Kane, King of Alabama, King of Georgia, Linn, Morris, Robinson, Shepley, Tallmadge, White, Wilkins, and Wright.

[Some remarks on the question of proceeding to a vote without debate are found in the Congressional Debates, vol. 10, part 2, 1833-34, page 1813.]

COMPENSATION OF MR. POTTER.

THURSDAY, June 5, 1834.

The following motion, submitted by Mr. Wright, was considered and agreed to: "Resolved, That the Committee on Finance be instructed to inquire into the justice and expediency of providing by law for the pay and mileage of the Hon. Elisha R. Potter from the commencement of the present session of Congress up to the time of the final decision of the contest for a seat in the Senate between the said Potter and the Hon. Asher Robbins, at the rate of pay allowed to the members of the Senate."

On motion of Mr. Webster,

TUESDAY, June 10, 1834.

Ordered, That the Committee on Finance be discharged from the consideration of the resolution relating to the claim of Elisha R. Potter for mileage and compensation.

FRIDAY, June 12, 1834.

The following motion submitted by Mr. Wright was considered: "Whereas the Hon. Elisha R. Potter did at the commencement of the present session of Congress cause to be laid before the Senate a commission from the governor of the State of Rhode Island, duly authenticated, and constituting the regular prima facie evidence to entitle him to a seat in the Senate; and

"Whereas the contest for the seat claimed by Mr. Potter was not finally decided by the Senate until the 27th day of May now last past, when the said seat was awarded to the Hon. Asher Robbins: Therefore,

"Resolved, That the said Elisha R. Potter is entitled to the compensation of mileage allowed by law to members of Congress for his travel from his place of residence, in the State of Rhode Island, to the capital, and returning; and also to the per diem allowance of a member of Congress for the time he actually attended at the city of Washington during the contest pending before the Senate in relation to the seat claimed by him and occupied by the Hon. Mr. Robbins."

On motion of Mr. Wright,

Ordered, That it be postponed until to-morrow.

MONDAY, June 16, 1834.

The Senate resumed the consideration of the motion submitted by Mr. Wright on the 12th instant, to compensate Elisha R. Potter for mileage and per diem to the 27th ultimo,

and

Ordered, That it be referred to the Committee on the Judiciary.

[Some remarks on the resolution are found in part 2 of the Congressional Debates already referred to, page 2021.]

79908°-S. Doc. 1036, 62–3- -14

On motion of Mr. Clayton,

THURSDAY, June 19, 1834.

Ordered, That the Committee on the Judiciary be discharged from the consideration of the resolution to compensate Elisha R. Potter for mileage and attendance to the 27th ultimo.

The Senate then proceeded to consider said resolution, and it was amended to read as follows:

"Whereas the Hon. Elisha R. Potter did at the commencement of the present session of Congress cause to be laid before the Senate credentials authenticated by the governor of the State of Rhode Island declaring the election of Asher Robbins void, and that said Potter had been elected by the legislature a Senator from the State of Rhode Island; and

"Whereas the contest for the seat claimed by Mr. Potter was not finally decided by the Senate until the 27th day of May now last past, when the said seat was awarded to the Hon. Asher Robbins: Therefore,

Resolved, That the said Elisha R. Potter ought, under the circumstances of the case, to be paid the compensation of mileage allowed by law to members of Congress for his travel from his place of residence in the State of Rhode Island to the Capitol, and returning; and also the per diem allowance of a member of Congress for the time he actually attended at the city of Washington during the contest pending before the Senate in relation to the seat claimed by him, and occupied by the Hon. Mr. Robbins; and that the Judiciary Committee be instructed to prepare a bill or resolution for that purpose.",

On the question to agree to the resolution as amended, it was determined in the af firmative yeas 24, nays 22.

On motion by Mr. Wright, the yeas and nays being desired by one-fifth of the members present,

Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, McKean, Moore, Morris, Preston, Robinson, Shepley, Silsbee, Tallmadge, Tyler, Waggaman, White, Wilkins, and Wright. Those who voted in the negative are Messrs. Bell, Black, Clay, Clayton, Ewing, Forsyth, Frelinghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Swift, Tipton, Tomlinson, and Webster. [Some remarks on the resolution are found in part 2 of the Congressional Debates already referred to, pages 2037, 2038.]

MONDAY, June 23, 1834.

[The Senate having under consideration the bill entitled "An act making appropriations for the civil and diplomatic expenses of Government for the year 1834.”] Pursuant to instruction of a majority of the Committee on the Judiciary, Mr. Clayton moved further to amend the bill by inserting the following section: "SEC. 4. And be it further enacted, That the Secretary of the Senate be, and he hereby is, directed to pay, out of the fund appropriated by law for the pay of members of Congress, to Elisha R. Potter, of the State of Rhode Island, such compensation as is allowed by law to members of Congress, for his travel from his place of residence to the city of Washington to claim a seat in the Senate, and for his return; and also the per diem compensation for the days he was in actual attendance at the seat of Government from the commencement of the present session of Congress until the final decision of the Senate against his right to the seat claimed by him."

It was determined in the affirmative-yeas 20, nays 19.

On motion of Mr. Clayton, the yeas and nays being desired by one-fifth of the members present,

Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, Preston, Robinson, Shepley, Silsbee, Tallmadge, Tyler, White, Wilkins, and Wright.

Those who voted in the negative are Messrs. Black, Clay, Clayton, Ewing, Forsyth, Frelinghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, Prentiss, Smith, Southard, Sprague, Tomlinson, and Webster.

REPORT OF COMMITTEE.

IN THE SENATE OF THE UNITED STATES.

MARCH 4, 1834.-Ordered to be printed.

Mr. Poindexter made the following report:

The select committee to which was referred the credentials of Asher Robbins, chosen a Senator in Congress from the State of Rhode Island for the term of six years, to commence on the 4th day of March, 1833; and also the proceedings of the legislature of

said State, convened on the last Monday of October, 1833, declaring the election of the said Asher Robbins void, who thereupon proceeded to elect Elisha R. Potter a Senator in Congress for six years, to commence on the 4th day of March, 1833, instead of said Asher Robbins, whose election to fill said office had been declared void as aforesaid, have had the whole subject so referred to them under their serious and attentive consideration, and submit the following report:

That it appears by the credentials of Asher Robbins and the proceedings of the general assembly of the State of Rhode Island hereto appended, and marked A, that the senate and house of representatives of said State, then sitting in the city of Providence, met in grand committee in conformity to the usage of the legislature in such cases, for the purpose of choosing a Senator to represent said State in the Congress of the United States; and that, on counting the ballots, it appeared that Mr. Robbins was elected by a majority of four votes, who was thereupon declared to be duly elected a Senator to represent said State in the Congress of the United States for six years from and after the 4th day of March then next following; that, having performed the duty for which the two houses had met, the grand committee was dissolved, and the members of each house repaired to their respective chambers. It further appears to your committee that on the 28th day of the same month of January his excellency Lemuel H. Arnold, governor of the State of Rhode Island, by commission in due form, bearing his signature, under the great seal of the State, did proclaim and make known the election of the said Asher Robbins as aforesaid, and caused the said commission, signed and sealed as aforesaid, to be delivered to the said Asher Robbins, which was presented to the Senate of the United States in open session on the 4th day of February, 1833, and on motion read and entered on the journals of the Senate. By virtue of the force and effect of the aforesaid commission, the said Asher Robbins, Senator-elect from the State of Rhode Island, appeared in the Senate Chamber on the 2d day of December, 1833, was duly sworn to support the Constitution of the United States, and took his seat as a member of the Senate.

It further appears to your committee that at a subsequent session of the general assembly of Rhode Island, begun and held at the town of South Kingston in said State, on the last Monday of Octobor, 1833, certain proceedings were had relative to the election of the said Asher Robbins as above mentioned, which resulted in the adoption of a declaration or act of the said general assembly, by which the election of Mr. Robbins is declared to be "null and void and of no effect," and the office vacated. Whereupon, at the same session of the general assembly the two houses met in grand committee on the 1st day of November, 1833, and proceeded to elect a Senator to represent the State of Rhode Island in the Congress of the United States for the term of six years, commencing on the 4th day of March preceding, to supply the vacancy created, or supposed to be created, by the act declaring the election of Mr. Robbins null and void; and the majority appearing to be in favor of Elisha R. Potter, the said Potter was thereupon declared to be duly elected a Senator in Congress from the said State for the term aforesaid, when the grand committee was dissolved and the members repaired to their respective chambers. That on the 5th day of the same month of November his excellency John Brown Francis, governor of the State of Rhode Island, by commission in due form, bearing his signature, under the great seal of the State, did proclaim and make known the election of the said Elisha R. Potter as aforesaid, and cause the said commission, signed and sealed as aforesaid, to be delivered to the said Elisha R. Potter, which was presented to the Senate on the 2d day of December last, and on the 5th day of the same month referred to this committee. The documents relating to those proceedings are subjoined and marked B. This statement of the case is deemed sufficient to show the questions which arise for the consideration of your committee, and which they now proceed to examine:

1. Was the commission of Asher Robbins made and executed in conformity with the provisions of the Constitution of the United States, and the laws and usages of Rhode Island prescribing the time, place, and manner of choosing Senators to Congress?

2. Was Mr. Robbins, at the time of his election, eligible, according to the Constitution of the United States, to the office of Senator?

3 Was he chosen by the legislature of the State of Rhode Island?

If these questions be answered affirmatively it will be unnecessary to inquire into the validity of the subsequent election of Mr. Potter, or into the power of the legislature to create a vacancy by annulling the act of their predecessors; and therefore your committee limit the views which they deem it proper to take of the subject referred to them to the objections made to the commission of Mr. Robbins on the ground that the legislature by whom he was chosen had no power to elect a Senator to Congress, and that the governor who signed and sealed his commission was not at the time competent to exercise any power or perform any duty in his official character. These objections rest on the same general principle; and if they are supported by the facts disclosed in the case, connected with the constitution and laws of the State, it will then be proper to examine the claims of Mr. Potter to a seat in the Senate, and not otherwise.