In this connection, the majority of the committee seem to place much stress upon another argument, entirely consequential in its character, which is, that a decision by the Senate that the body of men who elected Mr. Robbins was not the legislature of Rhode Island will be in effect a decision that all the laws passed by that body, acting as the legislature of that State, and all its other acts performed in that capacity, are null and void. Inasmuch as the State has now, and has had since the first Wednesday in May, 1833, a legislature admitted on all hands to be constitutionally chosen and organized, it would appear to the undersigned that the majority of the committee give an unnecessary importance to this consequence of such a decision in case the consequence must follow; because the evils apprehended, to a very great extent, if not to the entire extent, might be remedied by the action of the competent legislature in affirmance of the acts to be affected. But, however this may be, he cannot but consider it a plain proposition, and not requiring argument to support it, that when the constitutional organization of a body of men claiming to be the legislature of a State is the question in issue, the acts of that body whose constitutional powers are disputed are not to be adduced as evidence of the constitutional power of the body to perform them. When the constitutionality of a legislative act is questioned, he cannot believe that the act itself is to be relied upon as evidence of its own validity. Equally clear is it to his mind that when such a question is to be determined the consequences of pronouncing the act invalid are not considerations which should legitimately control the decision. The act is either constitutional or unconstitutional. If constitutional, the dispute is settled; if unconstitutional, no consequences to follow from a pronunciation of that fact can make it valid. So with the body claiming to be the legislature of a State. If the legislature of the State according to the provisions of its constitution, the controversy is at an end; if not the legislature of the State, no acts of theirs in their assumed character, and no consequences to follow from the invalidity of those acts, can give them the powers which they had not when the acts were performed, or make them, what they were not, the legislature of the State. But if consequences can be legitimately considered in the argument, the undersigned feels compelled to say that to his mind a decision that the State of Rhode Island has no fundamental law or constitution of government but the will of its legislature will be a consequence to its people much more serious than any which can be apprehended from pronouncing void the acts of the body of men assuming to be the legislature of the State from May, 1832, to May, 1833. The undersigned then concludes that the charter of Charles II granted to the colony of Rhode Island and the Providence Plantations (now the State of Rhode Island) in the year 1663, and submitted to and adopted by the people of the colony in the year 1663 and 1664, is now to be considered the fundamental law of the State of Rhode Island, and binding upon its legislature as a constitution of government, except so far as the provisions of that charter were rendered obsolete by the American Revolution; that that charter does fix, and specifically limit, the official terms of the governor, lieutenant-governor, and senators of the State to one year; that the legislature of the State have not the power to extend those official terms beyond that limit; and that the Senate, upon a question as to the election of a Senator, has the right to inquire whether he was chosen by the legislature of his State, and, consequently, whether any body of men assuming to choose a Senator were authorized, as members of the legislature of their State, to make the choice under the provisions of the constitution of such State. It being conceded that the official terms of one year of the governor, lieutenant-governor, and senators of Rhode Island had expired in May, 1832, and that they continued from that period until May, 1833, to act in those offices, respectively, without any new election by the people, the undersigned is compelled to conclude that they acted during that period without constitutional authority, and that they were not, after May, 1832, members of the legislature of that State, and were not, therefore, in January, 1833, when they did so act, empowered to vote in the choice of a senator to represent that State in the Senate of the United States. And inasmuch as the Constitution requires either a governor, or lieutenant-governor, and at least six senators to constitute, with the house of representatives, a legislature; and as there were no such officers in constitutional existence in the State of Rhode Island in January, 1833, when Mr. Robbins purports to have been chosen a Senator, he is brought to the further conclusion that that choice was not made by the legislature of the State. Has, then, Mr. Potter been validly elected a Senator from that State? That the body by which he was chosen was the legislature of the State has not been questioned; but in speaking upon that point the majority of the committee express the opinion that that legislature had no "authority to proceed to the election of another Senator until the seat of the Senator-elect had been vacated by a solemn decision of the Senate of the United States." If, speaking legally and constitutionally, there was a Senator-elect, then this opinion is unquestionably sound, as it will not be contended that any legislature of a State has the power to vacate a seat in the Senate. To be more explicit and intelligi ble, if Mr. Robbins's election was voidable only, and not void, a subsequent legislature could not act until the vacancy was produced by the decision of the Senate. But if, as the undersigned has expressed his opinion, the election of Mr. Robbins was not made by the legislature of the State, then it was not voidable, but absolutely void; it was not an election within the requirement of the Constitution of the United States, and the vacancy existed from the expiration of his former term in March, 1833. If the Senate shall come to this conclusion, then the undersigned is not aware of any ground upon which it can be contended that any constitutionally organized legislature of the State had not the power to fill that vacancy, or that the election of Mr. Potter made by such a legislature in October, 1833, is not valid. All which is respectfully submitted. SILAS WRIGHT, JR. [The documents annexed to the minority report are here omitted.] [Twenty-eighth Congress-First session.] JOHN M. NILES, Senator from Connecticut from December 21, 1835, till March 3, 1839, and from May 16, 1844, till March 3, 1849. Mr. Niles was elected to the Senate for the term beginning March 4, 1843. His eredentials were not presented until April 30, 1844, when the Senate resolved that they be referred "to a select committee, consisting of five members, who shall be instructed to inquire into the election, return, and qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States." Some members of the Senate doubted the constitutional power of the Senate to make such an inquiry. May 16, 1844, the committee reported that he had been duly elected, and that they "are satisfied that Mr. Niles is at this time laboring under mental and physical debility, but is not of unsound mind' in the technical sense of that phrase; that the faculties of his mind are subject to the control of his will, and there is no sufficient reason why he be not qualified and permitted to take his seat as a member of the Senate." They reported the following resolution: "Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate." The resolution was adopted. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 1st sess. 28th Cong., and the report of the committee copied from the original on file at the office of the Secretary of the Senate. The debates are found on pages 564,565, 602, 603 of the Congressional Globe, 1st sess. 28th Cong., vol. 13, part 1. TUESDAY, April 30, 1844. Mr. Fairfield presented the credentials of the Hon. John M. Niles, elected a Senator by the general assembly of the State of Connecticut for the term of six years commencing the 4th day of March, 1843; which were read. Mr. Jarnagin submitted the following resolution; which was considered by unanimous consent, and agreed to: "Resolved, That the credentials presented to the Senate of the election of John M. Niles to be a Senator of the United States from the State of Connecticut be referred to a select committee, consisting of five members, who shall be instructed to inquire into the election, return, and qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution of the United States." On motion by Mr. Jarnagin, Ordered, That the said committee be appointed by the President pro tempore; And Mr. Jarnagin, Mr. Benton, Mr. Berrien, Mr. Wright, and Mr. McDuffie were appointed. THURSDAY, May 16, 1844. Mr. Jarnagin, from the select committee to whom the credentials of the Hon. John M. Niles were referred, submitted a report, accompanied by the following resolution: "Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate." The Senate proceeded to consider the resolution; and having agreed thereto, The oath prescribed by law was administered to the Hon. John M. Niles, and he took his seat in the Senate. REPORT OF COMMITTEE. IN THE SENATE OF THE UNITED STATES, MAY 16, 1844. Mr. Jarnagin made the following report: The select committee, to whom was referred the credentials of the Hon. John M. Niles, to be a Senator of the United States from the State of Connecticut, with instructions to inquire into the election, return, and qualifications of the said John M. Niles, and into his capacity at this time to take the oath prescribed by the Constitution, have performed the duty assigned and present the following report: In the month of May, 1842, the Hon. John M. Niles was duly elected a Senator from the State of Connecticut in the Congress of the United States for the term of six years from the 4th of March, 1843. The committee are satisfied his election, return, and qualifications are legal and sufficient, and that it remains to inquire into his capacity at this time to take the oath prescribed by the Constitution. In prosecuting this inquiry the committee addressed a note to Mr. Niles requesting an interview with him, which was promptly given. Between him and the committee there have been full, free, and frank conversations. Mr. Niles gave so satisfactory an account of his afflictions and present condition as to render a resort to other evidence unnecessary in the opinion of the committee. He has long been laboring under severe bodily afflictions, which, as was natural, impaired the energies of his mind to such an extent that it was deemed proper to remove him to a retreat at Utica, in the State of New York, of which he remained an inmate till about the 1st of April, 1844. His visitations were greatly alleviated, but he felt he had not physical ability to discharge the duties of a Senator for some time after the commencement of the present session of Congress, and a strong aversion to being an obstacle in the way of a full representation of his State in the Senate, but his inclinations were yielded to what was thought the better judgment of his friends, in obedience to which he repaired to Washington to take his seat in the Senate about the 1st of April last, but felt unable to do so till the 30th of that month, when he presented himself to be qualified as Senator. As evidence of the propriety of the course pursued, Mr. Niles presented to the committee the following letter of Dr. A. Bingham: "Hon. JOHN M. NILES: "ASYLUM, UTICA, April 24, 1844. "MY DEAR SIR: Your letter has been received and read with much satisfaction. I perceive you are improving, and that it requires but a little more time, warm weather, and exertion on your part, with some urgency of friends, to restore you to health. Though you have been greatly afflicted with sickness, I trust you will call to mind that you have been no more so than thousands of others who have perfectly recovered. To effect your restoration now, my dear sir, requires that you engage in some active duties. You are in the condition that the distinguished Robert Hall was for a while, and to whom his friend Sir James McIntosh, who was educated a physician, gave the following advice, the advice that I give to you now, and urge you to follow it: 'The remedy,' says he, in your case is prescribed by the plainest maxims of duty-you must act. Inactive contemplation, or lamentation, is a dangerous condition for minds of profound moral sensibility. Let me therefore urge you to resume your seat in the Senate as an act of duty and a resource against disease. Such exercise is necessary for your health, and by it you may also serve others. Please show this letter to your brother, and perhaps to other friends, to whom I wish to say that a peculiarity of your nature is, even when well (so great is your caution), to require a little urging. I hope, therefore, they will not fail to discharge their duty now in urging you to this course. I hope in a few days to hear you are daily engaged for an hour or two in the Senate " The committee are satisfied Mr. Niles is at this time laboring under mental and physical debility, but is not of "unsound mind," in the technical sense of that phrase; that the faculties of his mind are under the control of his will; and they see no sufficient reason why he be not qualified and permitted to take his seat as a member of the Senate, and they most cordially unite with Dr. Bingham in the hope that such a course will be the means of usefulness and a resource against disease. Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in the Congress of the United States, and to take his seat as a member of the Senate. [Special session of Senate, March, 1849.] JAMES SHIELDS, Senator from Illinois from March 6, 1849, till March 15, 1849, and from December 3, 1849, till March 3, 1855. Mr. Shields, an alien by birth, was elected to the Senate January 13, 1849, for the term of six years from the 3d of March following. March 6 the oath was administered to him, and his credentials referred to a select committee. The committee reported that it appeared that he was naturalized on the 21st day October, 1840, and reported the resolution "that the election of James Shields to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States." The resolution was amended by adding to it the words "at the commencement of the term for which he was elected," and passed March 15. Mr. Shields was afterward elected for the same term. The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journal, 2d sess. 30th Cong., 1848-49. The debates on the case are found in the Appendix to the Congressional Globe, 2d sess. 30th Cong., vol. 20, 1848-49, pages 326-351, special references to which are inserted below. FRIDAY, March 2, 1849. Mr. Douglas presented the credentials of the Hon. James Shields, chosen a Senator by the general assembly of the State of Illinois for and during the term of six years from and after the 4th day of March, A. D. 1849; which were read. MONDAY, March 5, 1849. The Hon. James Shields, whose credentials were read the 2d of March, appearing for the purpose of being qualified, Mr. Walker submitted the following resolution; which was read: "Resolved, That the certificate of election of the Hon. James Shields to a seat in this body be referred to the Committee on the Judiciary, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof." The Senate proceeded to consider the resolution by unanimous consent. TUESDAY, March 6, 1849. On motion by Mr. Douglas, the oath prescribed by law was administered to Mr. Shields. [On Mr. Douglas's motion a debate ensued on the question whether Mr. Shields's credentials were such prima facie evidence of the necessary qualifications to a seat in the Senate as entitled him to be at once sworn, or whether they should be first referred to a committee; which debate is found on pages 327–329 of the Congressional Globe referred to in the head-note.] The Senate proceeded to consider the resolution submitted yesterday by Mr. Walker in relation to the credentials of the Hon. James Shields; and, having been amended, it was agreed to, as follows: 66 'Resolved, That the certificate of the election of the Hon. James Shields to a seat in this body be referred to a select committee, consisting of five members, with instructions to inquire into the eligibility of the said James Shields to a seat in the Senate of the United States as a member thereof." [On this amended resolution, offered by Mr. Butler, some remarks were made on the question whether the case should more properly go to the Committee on the Judiciary or to a select committee, which remarks are found on page 330 of the Congressional Globe before referred to.] WEDNESDAY, March 7, 1849. Resolved, That the standing and select committees for the present special session of the Senate be constituted and appointed as follows, viz: * * * Select committee on the eligibility of the Hon. James Shields as a Senator-Mr. Benton, Mr. Felch, Mr. Webster, Mr. Mason, and Mr. Pearce. |