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but I think you had better pause and have an investigation before you undertake to swear in members under such an authority. I make the motion, before swearing in either of these gentlemen, that the credentials be referred to the Committee on the Judiciary. I have no personal feeling of any kind about this matter, but it seems to me to be a grave violation of the Constitution of the United States, and I must enter my protest against it. I make the motion that the credentials be referred to the Committee on the Judiciary."

Extract from remarks of Mr. Saulsbury, of Delaware, in support of the motion offered by Mr. Bayard that the credentials be referred to a committee; taken from page 103 of the Congressional Globe referred to in the head-note.]

"It is a matter of indifference to me, sir, what disposition is made of the credentials of the proposed Senators from Virginia; but I wish to call the attention of the Senate to one fact, which, in my mind, shows the propriety of the motion now made. These credentials, as read by the Secretary, state that on the 9th day of July the legislature of the State of Virginia, owing to the abdication of Mr. Mason and Mr. Hunter, elected these gentlemen to seats upon this floor. No longer ago, however, sir, than yesterday, this body treated Mr. Mason and Mr. Hunter as members of the Senate of the United States. Yesterday you expelled those gentlemen from seats upon the floor of this Senate as members of the Senate. Then, at the time of this election by the new government of Virginia, there was no vacancy in the Senate of the United States from that State, according to the judgment of the American Senate. Yesterday morning, when you met, according to the judgment of a majority of the members here Mr. Mason and Mr. Hunter were members of this body. You treated them as members of this body; you exercised your power of expulsion upon them. Could you have expelled them, as members of the Senate, from seats on this floor, if they were not at the time of the vote, in your judgment, actually members of this body? If they were yesterday morning members of the Senate of the United States-and you have treated them as such, and expelled them-can you now allow these gentlemen to be sworn in as Senators from the State of Virginia when the credentials presented here show on their face that they were elected not to fill any vacancy; when the facts, as you have decided them, show that there was no vacancy in the Senate? For that reason, and for none other, I think the credentials should go to the Committee on the Judiciary."

[Extract from remarks of Mr. Trumbull, of Illinois, in opposition to the motion made by Mr. Bayard that the credentials be referred to a committee; taken from page 104 of the Congressional Globe referred to in the head-note.]

"Mr. President, I think that we should not "stick in the bark" as to dates here. I presume the Senator from Delaware was elected before the vacancy which he filled existed. There is scarcely a Senator here that was not elected in advance, before the office became vacant. I recollect well that the Senators from Minnesota were admitted to seats upon this floor who were elected long before the State of Minnesota was a member of the Union. Nearly every new State which has come into the Union has elected her Senators before the State was admitted.

Now, let me put a case. A few years ago this country was engaged in a war with Mexico. Suppose that one of the Senators from Delaware, instead of being loyal and true to his country, had turned traitor and joined the Mexican army and fought against the United States, and the legislature of Delaware had been in session, knowing the fact that one of their Senators in this body was fighting against this country in the armies of its enemies: must the legislature of Delaware wait till the Congress of the United States assembles, and the Senate, by a formal resolution, expels that Senator? Would not the legislature of Delaware proceed at once to elect a Senator, and when Congress did convene, and a resolution was offered to expel the traitor to his country, would it be said, because the State of Delaware acted before Congress had convened and expelled the traitor, that therefore the other election should go for nothing, and that her legislature

must be convened and a new election held?

"Sir, the guilt and the turpitude of the men who once sat as Senators here is far greater than it would have been in the case I have supposed. They have joined in a fratricidal war against their country. They have not joined a foreign enemy, but they have uncertaken to stir up a domestic war. I do not think there is any necessity for their waiting till the formal resolution of expulsion was passed here. Why, sir, these credentials recite the fact that the former Senators have withdrawn and abdicated; and when the expulsion takes place, it may well have reference to the time of their withdrawal and abdication.

"Now, sir, we have the credentials here fair on their face. They purport to be the credentials of Senators elected by the old Commonwealth of Virginia, sent by a person purporting to be the governor of Virginia, and under the great seal of the State. This

appears to be fair. But Senators say, "Oh, well; but we know this is not the legislature of Virginia; there is another legislature, and there is another man who is gov. ernor." Well, if you are going outside of these credentials to rely on the knowledge which you have of the condition of things in the State of Virginia, then you know that the old governor of Virginia and the old legislature are in rebellion against the country. They are rebels and traitors in arms against the Government, and are not to be recognized as the government of Virginia, but are to be recognized as enemies and traitors, whom the whole power of this Government is now put forth to subdue and bring into obedience to the Constitution and the laws; and I would to God that the power was used to bring them to obedience.

Now, sir, as I said, I am not for "sticking in the bark" about this matter. Let us take the condition of things as it is. Here is the State of Virginia in rebellion. If you are going outside to inquire after the fact, you will ascertain that a portion of the people of that State have risen in arms against the Government; another portion of the people of that State are loyal to the Union; and the loyal men of Virginia have elected a legislature and seek representation in the Congress of the United States. They are entitled to representation here, and the enemies of the country are not.

"I think there is no necessity for referring this matter to the committee, unless there are some facts to be inquired into. On its face this purports to be an election of Senators from the Commonwealth of Virginia. There is no objection to the form of it, and I do not know that any fact has been suggested by the Senator from Delaware that is to be inquired into. What fact does he propose to inquire into? If he goes to his general knowledge, is he not satisfied that what was the old legislature of Virginia and its former governor are now in rebellion against the Government? And will he recognize them as having any authority to send Senators here? I presume not. And if Virginia is in the Union, her loyal men and not her traitors have a right to be represented here. I trust, sir, that the Senators will be sworn in."

[Thirty-seventh Congress-First and second sessions.]

FREDERIC P. STANTON vs. JAMES H. LANE,

of Kansas.

The credentials of Mr. Lane, one of two first Senators elected by the legislature of Kansas in April, 1861, were presented July 4, 1861, and he took his seat. July 12, 1861, a paper purporting to be the credentials of Mr. Stanton, appointed a Senator by the governor to the seat held by Mr. Lane, was presented, and referred to the Committee on the Judiciary. August 2, 1861, the committtee reported that Mr. Lane "was, by the Executive, appointed a brigadier-general in the volunteer forces of the United States on the 20th of June, 1861; that he accepted said appointment, and was legally qualified to perform its duties." In the opinion of the committee the office of brigadier-general under the United States is incompatible with that of member of either House of Congress. By ac cepting the office of brigadier-general, the sitting member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that time. On the 8th day of July, 1861, the governor of Kansas gave to the contestant, Mr. Stanton, a commission in due form appointing him a Senator of the United States from the State of Kansas to fill the aforesaid vacancy, and by virtue of that commission Mr. Stanton now claims his seat. Your committee recommend the adoption of the following resolutions: "1. Resolved, That James H. Lane is not entitled to a seat in this body. 2. Resolved, That Frederic P. Stanton is entitled to a seat in this body." No action was taken on the report or resolutions during this session of Congress. December 18, 1861, in the next session of Congress, the report was recommitted to the committee. The committee reported the same without amendment January 6, 1862. January 16, 1862, the first resolution was amended by striking out the word “not,” and it was Resolved, That James H. Lane is entitled to a seat in this body;" and the second resolution was indefinitely postponed. Of those voting in favor of Mr. Lane's title to the seat some proceeded upon the ground that on the 20th of June, 1861, the office of brigadier-general did not exist, and consequently that Mr. Lane was not a person holding any office;" others upon the ground that although he held an office after he had been elected Senator, yet, having resigned the same before taking his seat in the Senate, he did not come within the provision of section 6 of the first article of the Constitution.

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The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 1st and 2d sess. 37th Cong., with the report of the committee from Senate Reports, 1st sess. 37th Cong., No. 1.

The documents relating to the case are Ex. Doc. No. 8 and Mis. Doc. No. 11, from Senate Executive and Miscellaneous Documents, 1st sess. 37th Cong.

Special references to the debates of each day are inserted below.

THURSDAY, July 4, 1861. Mr. Grimes presented the credentials of the Hon. James Henry Lane, elected a Senator by the legislature of the State of Kansas.

The credentials were read, and the oath prescribed by law was administered to Mr. Lane.

FRIDAY, July 12, 1861.

Mr. Foot presented a paper purporting to be the credentials of the Hon. Frederic P. Stanton, appointed a Senator by the governor of the State of Kansas; which was referred to the Committee on the Judiciary.

Mr. Foot presented a memorial of Frederic P. Stanton, asking admission as a member of the Senate of the United States; which was referred to the Committee on the Judiciary.

[A brief statement by Mr. Lane is found on page 82 of the Congressional Globe, 1st sess. 37th Cong.]

TUESDAY, July 16, 1861.

Mr. Lane, of Kansas, presented a letter from the chief clerk of the War Department inclosing a copy of the appointment of F. P. Stanton as special agent to Kansas and New Mexico; which was referred to the Committee on the Judiciary.

WEDNESDAY, July 31, 1861.

Mr. Lane, of Indiana, submitted the following resolution; which was considered by unanimous consent, and agreed to:

"Resolved, That the President of the United States be requested to inform the Senate whether the Hon. James H. Lane, a member of this body from Kansas, has been appointed a brigadier-general in the Army of the United States; and, if so, whether he has accepted such appointment."

FRIDAY, August 2, 1861.

Mr. Foster, from the Committee on the Judiciary, to whom were referred the credentials and the memorial of Frederic P. Stanton, claiming to be entitled to a seat in the United States Senate, under an appointment of the governor of Kansas, in the place of

the Hon. James H. Lane, submitted a report (No. 1), accompanied by the following resolutions:

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'Resolved, That James H. Lane is not entitled to a seat in this body.

Resolved, That Frederic P. Stanton is entitled to a seat in this body." On motion by Mr. Foster,

Ordered, That the report be printed.

[Remarks in regard to recommitting the report for the purpose of having printed with it the President's reply to the resolution of July 31, given above, are found on pages 406, 407 of the Congressional Globe, 1st sess. 37th Cong.]

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan, Harris, Bayard, and Powell.]

IN THE SENATE OF THE UNITED STATES.

AUGUST 2, 1861.-Ordered to be printed.

Mr. Foster made the following report:

The Committee on the Judiciary, to whom were referred the credentials and the memorial of Frederic P. Stanton, of the State of Kansas, asking admission to a seat in this body in place of the Hon. James H. Lane, now holding said seat, having had the same under consideration, report:

That the contestant and sitting member have appeared before them and submitted, severally, their statements and made their exhibits.

The committee find the following facts: That the sitting member, the Hon. James H. Lane, was, by the Executive, appointed a brigadier-general in the volunteer forces of the United States on the 20th of June, 1861; that he accepted said appointment, and was legally qualified to perform its duties.

In the opinion of the committee the office of brigadier-general under the United States is incompatible with that of member of either House of Congress. By accepting the office of brigadier-general, the sitting member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that time.

On the 8th day of July, 1861, the governor of Kansas gave to the contestant, Mr Stanton, a commission in due form appointing him a Senator of the United States from the State of Kansas to fill the aforesaid vacancy, and by virtue of that commission Mr. Stanton now claims his seat.

Your committee recommend the adoption of the following resolutions:

1. Resolved, That James H. Lane is not entitled to a seat in this body.

2. Resolved, That Frederic P. Stanton is entitled to a seat in this body.

The evidence from which your committee find the facts herein set forth is, substantially, the following:

WAR DEPARTMENT, July 15, 1861.

SIR: In reply to your inquiry in regard to the appointment of the Hon. James H. Lane as brigadier-general, I herewith transmit you documents upon the case:

A. Copy of letter to Secretary of War from Adjutant-General Thomas.

B. Form of appointment (printed blank).

C. Telegram of assistant adjutant-general to commanding officer at Fort Leavenworth. D. Letter of acceptance of regiments.

The Secretary of War directs me to state that he himself, after having signed the commission of Hon. James H. Lane as brigadier-general, handed it personally to him in presence of the Adjutant-General at the War Department.

Respectfully,

Hon. F. P. STANTON.

A.

JAMES LESLEY, JR., Chief Clerk, War Department.

ADJUTANT-GENERAL'S OFFICE,
Washington, July 15, 1861.

SIE: In reply to the inquiry of the Hon. F. P. Stanton of the 13th instant, referred by you to this office, I respectfully state that on the 20th ultimo you directed an appointment as brigadier general of the three years' volunteers to be made for the Hon.

79908°-S. Doc. 1036, 62-3-20

James H. Lane, of Kansas. The appointment was made as directed, and handed to you for signature, but was not returned to this office for record.

I inclose herewith a blank letter of appointment, similar to the one used in his case. I have the honor to be, sir, very respectfully, your obedient servant,

Hon. SIMON CAMERON,

L. THOMAS,
Adjutant-General.

Secretary of War.

B.

WAR DEPARTMENT,

Washington, June 20, 1861.

SIB: You are hereby informed that the President of the United States has appointed you brigadier-general of the volunteer force raised in conformity with the President's proclamation of May 3, 1861, in the service of the United States, to rank as such from 17th day of May, 1861. Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.

Immediately on receipt hereof, please to communicate to this Department, through the Adjutant-General's Office, your acceptance or non-acceptance of said appointment; and, with your letter of acceptance, return to the Adjutant-General of the Army the oath, herewith inclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and the State in which you were born. Should you accept you will at once report by letter for orders to Secretary of War. Brig. Gen. JAMES H. LANE,

United States Volunteers.

The original of which this purports to be a copy was not produced before the committee. General Lane stated that it was in the hands of Colonel Weer, at Leavenworth. General Lane also stated that there was a variation, in some respects, between this copy and the original, but no variation was specified which the committee deemed material.

C.

[By telegraph.]

ADJUTANT-GENERAL'S OFFICE,
Washington, D. C., July 10, 1861.

Detail an officer to muster in General Lane's brigade. The companies will be mustered when presented, even though less than the standard, and will be filled up afterwards.

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The above order was given at the request of General Lane.

ADJUTANT-GENERAL'S OFFICE, July 16, 1861.

D.

L. THOMAS,
Adjutant-General.

WAR DEPARTMENT, June 20, 1861. DEAR SIR: This Department will accept two regiments, for three years or during the war, in addition to the three regiments the Department has already accepted from the governor of Kansas, to be raised and organized by you in Kansas. Orders will be given

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