Neither the record nor any other evidence in the case shows that objection was made to any of those proceedings, or that their legality was questioned in or out of the convention at the time.

The certificate of election was granted to Mr. Mallory, and he having been qualified, now holds the seat.

Mr. Yulee contests his right to the seat on the ground that he was himself elected at the first vote, because there was a quorum of each house present as appears by the journals, and he, being the only qualified person voted for, had a majority of the legal votes. Those who responded "blank," he contends, voted for no qualified person, and waived their electoral rights as effectually as if they had been silent.

Mr. Mallory opposes to this inference a resolution of the two houses adopted in 1845, by concurrent vote, which has never been rescinded, and is in the following words: "Resolved, That a majority of all the members-elect composing the two houses of general assembly shall be necessary to determine all elections devolving upon that body." The whole number of members-elect was 59, and Mr. Yulee, not having a majority of that number, was not elected. From the facts disclosed it is quite apparent that the convention took this view of the matter.

In deciding the questions which are raised out of the facts, the Constitution of the United States must, to the extent of its provisions, prevail over all other authority. That instrument gives to each State the right to elect two Senators. Article I, section 4, is in these words: "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof."

The words of the third section in the same article are: "The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years."

The first question, then, which arises is, What constitutes the legislature of Florida? For that, and that only, has the right to make the choice. The Constitution of the United States, Article I, section 1, says: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The constitution of Florida declares that "the legislative power of the State shall be vested in two distinct branches, the one to be styled the senate, the other the house of representatives, both together the general assembly." These authorities leave no doubt that the two houses constitute the legislature of Florida, which holds the unqualified right under the Constitution of the United States to elect the Senators for the State.

Has this body executed the trust confided to it in such a manner as to satisfy the terms of the Constitution? The time, the place, and the manner of holding the election are all to be prescribed by it. To the time and place no objection is made, but the validity of the manner is questioned.

No mode of election is prescribed by the Constitution, but this duty is left to the discretion of the several legislatures of the States. In carrying out the power some elect by a concurrent vote of the two branches, the one having a negative upon the action of the other; others elect in a convention of the two houses, in which case (as far as your committee are advised) a majority prevails.

If numbers be regarded as a material element in such elections, it is manifest that in the same body of men different results may be produced according as one mode or the other is pursued. There may be in convention a majority in favor of a candidate, making his success by this mode certain, while with the same number in his favor he might be defeated in one of the houses if a concurrent vote is required; and such cases have occurred.

Again, it may be observed that the power given to the legislature to regulate the time, place, and manner applies as well to Representatives as to Senators; and here again are other diversities in the manner of exercising it. Some States elect by a plurality of votes, others by a majority, and others have required at the first trial a majority and a plurality afterward. Some again (until Congress made a law upon the subject) elected by general ticket; others, either by single districts or districts entitled to more than one, according to convenience. None of those modes of electing Senators or Representatives has been held unconstitutional, but members have uniformly been admitted to their seats whether elected in one or other of these modes.

These practices have at all times existed, and have uniformly been recognized as constitutional, proving clearly that the discretion reposed in the legislatures of the States may be exercised in a diversity of ways and yet be a sufficient compliance with the requirements of the Constitution.

The legislature of Florida adopted a course different from any of these by requiring a majority of all the members-elect in convention to make choice of a Senator. This rule is as unobjectionable and harmonizes as well with the Constitution as the modes pursued elsewhere. The right of the State to adopt such a rule has not been directly

questioned, but the legality of the means by which it was executed is denied. This point is the chief ground of controversy between the parties. On the one hand, the validity of the resolution above cited is denied; on the other, it is alleged that if the resolution was not in force a usage equivalent to it existed, which was equally obligatory upon the convention. This again is denied.

We will first consider the character, force, and effect of the resolution.

The first objection to it is that it contains no evidence on its face that it is a joint act of the two houses. This is true; but the journals place this matter in the clearest light. While there is an apparent defect in form there was none in fact. It was passed in one house, sent to the other, and there agreed to by a concurrent vote; it is a clear, unequivocal expression of the will of each house. No words added to it can make it a stronger or more complete expression of that will. It is also in substance joint, since it is the will of both houses expressed in the same words. Moreover it is permanent, being designed as a rule of action for both, by the united will of both, and it must stand as such until both concur in repealing or rescinding it.

The next objection is that it has not the forms of law usual in legislation, because it is not signed by the officers of each house or approved by the governor. It is a sufficient reply to state that the Constitution does not require the legislature to regulate the manner of election by law; it may be by resolution, either joint or several, or in any other method which commands the agreement of both houses of the legislature. The form of action being discretionary and the substance right, the objection becomes immaterial.

The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a sufficient law, because they alone are empowered to prescribe the manner of choosing in such mode or by such means as they please. On this point a State constitution can neither control nor modify that of the United States, for the latter is the supreme law.

This resolution being joint in fact, though not in the usual form, was a standing order of the two houses, in force until they by concurrent vote should rescind or modify it. It was consequently the rule prescribing the manner of election to the two houses when they met in convention on the 13th of January, 1851, and they were bound to proceed according to its requirements.

This being the view which the committee take of the case, there is no necessity for pursuing the subject further, since Mr. Yulee did not obtain votes sufficient to elect him. It may not, however, be out of place to observe that the facts disclosed render it evident that the two houses entered the convention with the full belief that no number short of a majority of all the members-elect could make a choice of a Senator, and conducted their proceedings under the conviction that they were bound to adhere to the established practice. There is also reason for believing that the members of the convention assembled and acted under the conviction that blank votes would be counted, inasmuch as the two houses on a former occasion and in another election had so decided. If blank votes are beyond doubt a nullity; if the resolution is to be regarded of no effect, and we are brought to the question, under these circumstances, whether Mr. Yulee is duly elected, it seems to us difficult to maintain the affirmative of that proposition upon the facts before us. If the members were misled on both of these material points by assuming that their previous doings afforded safe and certain rules of action, then they were misguided by what they had a right to consider as authority, and must have acted under a misconception of right which stood, as they supposed, unquestioned. If this be so they stand substantially in the condition of an elector who votes for a person disqualified, believing him to be qualified. The vote in such a case, though unavailing, is not rejected from the count.

The only remedy which we can see for an election carried on through misapprehension from such well-founded causes is to set it wholly aside and open the way to a new choice; but in our view of the case there is no occasion to consider what ought to be done upon such a state of facts.

The committee ought perhaps to notice one other fact which has been relied upon. Since the adoption of the resolution the journals show a case in which a person who was declared not to be elected in convention because he had not the number of votes required was afterward declared elected by a concurrent resolution of the two houses. All that need be said of this transaction is that it passed the senate through the mis apprehension of one of its members, as the journal proves, and was manifestly a violation of the resolution. It is equally manifest that the members of both houses did not regard it as affecting in any way the standing order, for its provisions were at all times subsequently observed as obligatory in convention. No argument is necessary to prove that such an irregular proceeding could have no effect upon the order either to modify or rescind it.

With these views the committee recommend the adoption of the following resolution: Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851

[Extract from Senate Journal, August 27, 1852.]

On motion by Mr. Weller that the Senate proceed to the consideration of the resolu tion reported by the select committee to whom was referred the memorial of the Hon David L. Yulee, claiming the seat in the Senate held by the Hon. Stephen R. Mallory, it was determined in the affirmative-yeas 23, nays 21.

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

Those who voted in the affirmative are Messrs. Adams, Atchison, Bayard, Bradbury, Bright, Brooke, Charlton, Clemens, Dawson, Felch, Gwin, Hale, Houston, Hunter, James, Jones of Iowa, King, Seward, Stockton, Sumner, Wade, Walker, and Weller.

Those who voted in the negative are Messrs. Badger, Bell, Borland, Brodhead, Clarke, Davis, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, Hamlin, Mangum, Miller, Morton, Pearce, Rusk, Smith, Spruance, Underwood, and Upham.

The Senate proceeded to consider the resolution submitted by Mr. Morton the 24th August, to give leave to the Hon. David L. Yulee to be heard in person at the bar of the Senate; and,

On motion by Mr. Weller that the resolution lie on the table, it was determined in the negative-yeas 17, nays 29.

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

Those who voted in the affirmative are Messrs. Adams, Bayard, Bradbury, Clarke, Clemens, Downs, Fish, Gwin, Houston, James, Jones of Iowa, Norris, Pearce, Rusk, Spruance, Stockton, and Weller.

Those who voted in the negative are Messrs. Atchison, Badger, Bell, Borland, Brodhead, Brooke, Butler, Cass, Charlton, Dawson, De Saussure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Felch, Geyer, Hamlin, Hunter, King, Mangum, Mason, Meriwether, Miller, Morton, Seward, Shields, Underwood, Upham, and Wade.

On motion by Mr. Pearce to amend the resolution by adding thereto "for two hours," it was determined in the affirmative-yeas 31, nays 21.

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

Those who voted in the affirmative are Messrs. Adams, Atchison, Bradbury, Bright, Butler, Cass, Clarke, Clemens, Davis, Dawson, Dodge of Wisconsin, Dodge of Iowa, Downs, Felch, Fish, Foote, Hale, Houston, Hunter, James, Jones of Iowa, King, Meriwether, Miller, Norris, Pearce, Pratt, Smith, Stockton, Sumner, and Weller.

Those who voted in the negative are Messrs. Badger, Bayard, Borland, Brodhead, Brooke, Charlton, Chase, Cooper, De Saussure, Douglas, Geyer, Gwin, Hamlin, Mangum, Mason, Morton, Rusk, Spruance, Underwood, Upham, and Wade.

The resolution submitted by Mr. Morton was then agreed to, as follows: "Resolved, That the Hon. D. L. Yulee, who contests the seat of the Hon. S. R. Mallory, have leave to be heard in person at the bar of the Senate for two hours."

On the question to agree to the resolution reported by the select committee, as follows:

Resolved, That the Hon. Stephen R. Mallory was duly elected a member of the Senate of the United States from the 3d day of March, 1851,"

A motion was made by Mr. Mangum that the further consideration thereof be postponed to the first Tuesday after the second Monday in December next; and it was determined in the negative-yeas 18, nays 37.

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

Those who voted in the affirmative are Messrs. Badger, Bayard, Bell, Borland, Brodhead, Cooper, De Saussure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, Hamlin, Mangum, Meriwether, Miller, Morton, and Upham.

Those who voted in the negative are Messrs. Adams, Atchison, Bradbury, Bright, Brooke, Butler, Cass, Charlton, Chase, Clarke, Clemens, Davis, Dawson, Felch, Foote, Geyer, Gwin, Hale, Houston, Hunter, James, Jones of Iowa, King, Mason, Norris, Pratt, Rusk, Seward, Smith, Spruance, Stockton, Sumner, Toucey, Underwood, Wade, Walker, and Weller.

Mr. Yulee having addressed the Senate,

On motion, Mr. Morton was excused from voting on the resolution.

On the question to agree to the resolution, it was determined in the affirmativeyeas 41.

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

Those who voted in the affirmative are Messrs. Badger Bayard, Bell, Bradbury, Bright, Brooke, Butler, Cass, Charlton, Clemens, Cooper, Davis, Dawson, De Saussure, Dodge of

Wisconsin, Dodge of Iowa, Downs, Felch, Fish, Foote, Geyer, Gwin, Houston, Hunter, James, Jones of Iowa, King, Mason, Meriwether, Miller, Norris, Pratt, Rusk, Seward, Smith, Soulé, Spruance, Sumner, Toucey, Underwood, and Weller.

COMPENSATION OF MR. YULEE.

MONDAY, August 30, 1852.

Mr. Morton submitted the following resolution; which was read: "Resolved, That there be paid out of the contingent fund of the Senate to the Hon. David L. Yulee a sum equal to the amount of mileage and per diem compensation of a Senator from the commencement of the present session to the 27th instant, the day on which the Senate decided that the Hon. Stephen R. Mallory, whose seat in the Senate was claimed by him, was duly elected a member of the Senate from the State of Florida."

TUESDAY, August 31, 1852.

The Senate proceeded to consider the resolution submitted by Mr. Morton the 30th instant, directing a payment to the Hon. David L. Yulee from the contingent fund; and,

After debate,

On motion by Mr. Morton,

Ordered, That it lie on the table.

[Some remarks against the passage of this resolution are found on page 2488 of the Congressional Globe, vol. 24, part 3, 1st sess. 32d Cong., 1851-'52.]

FRIDAY, February 25, 1853. Mr. Morton submitted the following resolution; which was read. [Resolution given above.]

MONDAY, March 7, 1853. Mr. Morton submitted the following resolution; which was read. [Resolution given above.]

THURSDAY, March 17, 1853.

The Senate proceeded to consider the resolution submitted by Mr. Morton the 7th instant, to allow per diem and mileage to the Hon. David L. Yulee during the time he contested the seat of the Hon. Mr. Mallory in the Senate, and on the question, "Shall the resolution pass?" it was determined in the affirmative-yeas 23, nays 19.

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

Those who voted in the affirmative are Messrs. Badger, Borland, Brodhead, Butler, Cooper, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Everett, Fitzpatrick, Gwin, Hunter, James, Jones of Iowa, Mason, Morton, Sebastian, Seward, Shields, Soulé, Sumner, and Walker.

Those who voted in the negative are Messrs. Adams, Atchison, Atherton, Bayard, Benjamin, Bright, Chase, Geyer, Hamlin, Houston, Norris, Pearce, Phelps, Rusk, Stu art, Thompson of Kentucky, Thompson of New Jersey, Weller, and Wright.

[A debate on the adoption of the resolution is found on pages 280-283 of the Appen. dix to Congressional Globe, vol. 26, 2d sess. 32d Cong.]

[Thirty-fourth Congress-First session.]

LYMAN TRUMBULL,

Senator from Illinois from March 4, 1855, to March 3, 1873.

- June 7, 1852, Mr. Trumbull was elected a judge of the supreme court of Illinois for a term of nine years, and was duly commissioned June 24. May 19, 1853, he resigned this office, to take effect July 1,1853. February 8, 1855, he was elected to the Senate of the United States for the term beginning March 4, 1855. The constitution of Illinois provided that the judges of the supreme court should not be eligible to any office of public trust or profit in the United States during the term for which they were elected, nor for one year thereafter; and that all votes for them, for any elective office, given by the general assembly, should be void. When Mr. Trumbull's credentials were presented in the Senate, a protest of members of the legislature was presented, protesting against the legality of the election on the ground that it was void by virtue of the provision of the constitution referred to. The subject was referred to the Committee on the Judiciary, who reported that there was such a division of opinion as to render it proper to refer the subject to the Senate, and asked to be excused, which report was accepted by the Senate. A resolution declaring Mr. Trumbull entitled to his seat was then introduced and passed the Senate by a vote of 35 yeas to 8 nays. The arguments show that the Senators voting in favor of the legality of the election did so from different grounds, some proceeding upon the ground that this case did not come within the meaning of the clause of the State constitution referred to, because Mr. Trumbull had resigned the office of judge more than a year before his election to the Senate; and others proceeding upon the ground that a State cannot superadd qualifications of a Senator to those required by the United States Constitution. Extracts from the debates given below will show the lines of the different arguments.

The history of the case here given consists of the report of the committee taken from Senate Reports, 34th Cong., 1st sess. vol. 1, 1855-'56, report No. 15; the proceedings of the Senate relating to the case from the Senate Journal, 1st and 2d sess. 34th Cong., 1855-'56; and extracts from the debates found in the Congressional Globe, part 1, 1st sess. 34th Cong., 1855-'56. Special references to the debates of each day are inserted below.

REPORT OF COMMITTEE, CONTAINING THE DOCUMENTS PRINTED IN THE CASE.

[The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Toombs, and Pugh.]

IN THE SENATE OF THE UNITED STATES,

FEBRUARY 27, 1856.-Submitted, agreed to, and ordered to be printed with the protest and other papers.

Mr. Butler made the following report:

The Committee on the Judiciary, to whom were referred the "Protest of certain senators and representatives of the legislature of the State of Illinois against the election of the Hon. Lyman Trumbull as a Senator of the United States," and other papers, report: That it has been under consideration and discussion by the committee, and there being such a division of opinion as to render it proper, in their judgment, to refer the subject to the Senate, ask to be discharged from the further consideration thereof.

Certified copy of the resignation of Lyman Trumbull of the office of justice of the supreme court of the State of Illinois.

ALTON, May 19, 1853.

SIR: I am induced, by considerations of a personal and private character, to resign the office of justice of the supreme court; but to allow time for the election of a person to succeed me, so that no public inconvenience may result from a vacancy on the bench, I hereby tender my resignation of said office, to take effect on the 4th day of July next. Yours, very respectfully,

LYMAN TRUMBULL

I, Alexander Starne, secretary of state of the State of Illinois, do hereby certify that the foregoing is a true and correct copy of Lyman Trumbull's resignation, filed in the secretary's office, May 20, 1853.

And I further certify that Walter B. Scates was elected to fill said vacancy, tered upon the discharge of the duties of said office, July 13, 1853.

and en

In testimony whereof, I have hereunto set my hand and affixed the seal of State, this 9th day of November, A. D. 1855.

[L. 8.]

ALEXANDER STARNE,

Secretary of State.