This was done under the advice of the Attorney-General and of President Lincoln, that such counties would be recognized as the lawful government of the State of Virginia if they remained loyal to the Government. The convention thus assembled chose a governor, lieutenant-governor, and council to fill the offices vacated by those who had seceded. John S. Carlile and Waitman T. Willey were chosen United States Senators to occupy the seats vacated by Messrs. Mason and Hunter. They were admitted to their seats in the Senate at the extra session on the 4th of July, 1861. Five members of the House of Representatives were admitted to their seats in that body at the same time, and thus the existence and validity of the government of Virginia were recognized by both Houses of Congress. On the 20th of August, 1861, the convention passed an ordinance to provide for the formation of the State of West Virginia. Delegates from the counties to compose the new State met in convention at Wheeling, framed a constitution for the new State, which was submitted to a vote of the people of said counties in April, 1862, and ratified by an almost unanimous vote.

Governor Peirpoint, the newly installed governor of Virginia, called an extra session of the legislature for the 6th of May, 1862, at which session an act was passed giving the assent of the State of Virginia to the formation of the new State. This consent,

with a copy of the proposed constitution, were transmitted to Congress with an application for the admission of West Virginia as a new State. Congress passed an act providing for its admission, which was approved by the President on the 31st of December, 1862, and West Virginia thus became a State in the Union on an equal footing with the original States. The act provided that until the next census the new State should have three members in the House of Representatives. The legislature at Wheeling passed an act authorizing the removal of the seat of government from Wheeling to Alexandria. An election for State officers was held in the fall of 1863. Governor Peirpoint was elected for a full term. Three members of Congress were chosen, and a Senator to take the place of Mr. Willey, who had been elected a Senator from the new State of West Virginia. The Senators and Representatives thus chosen took their seats at the opening of the session of Congress in December, 1863, and continued to hold them until the close of that Congress, on the 4th of March, 1865, except Senator Bowden, who died in the winter of 1865, and Mr. Joseph Segar was chosen to fill his place for the unexpired term.

All the counties represented in the government of Alexandria, as well as those composing the State of West Virginia, were excepted from the proclamation of the President declaring certain States and parts of States in rebellion, and were recognized by the Government as loyal to the United States. The legislature at Alexandria called a convention, which forever abolished slavery in the State of Virginia, and the legislature adopted the thirteenth amendment to the Constitution of the United States. The votes of twenty-seven States were required to make the ratification of the thirteenth amendment valid, and Virginia, under the Alexandria government, made the twenty-seventh. If Virginia was not a State the thirteenth amendment was never adopted, and slavery has never been legally abolished, nor has West Virginia been constitutionally admitted as a State. In May, 1865, President Johnson issued a proclamation to re-establish the authority of the United States and execute the laws within the limits of the State of Virginia, recognizing Governor Peirpoint as the governor of the State, and directing that he should be aided, so far as might be necessary, in the extension of the State government throughout the limits of the State.

When Congress met in December, 1865, the war had closed, and the State of Virginia, as well the loyal as the disloyal portion, with the other disloyal States, were on some terms to be restored to their relations with the Federal Government. On the first day of the session a resolution was adopted in the House for the appointment of a joint committee of the two Houses to consider that subject and report by bill or otherwise, and providing that until such report no Senator or Member should be admitted to a seat, and that the credentials of all Senators and Members should be referred to said committee. When the resolution came up in the Senate for action Senator Anthony moved to amend the enacting clause so as to make it a concurrent instead of a joint resolution, and also moved to strike out the following words:

"And until such report shall have been made, and final action by Congress on, no member shall be received into either House from any of the so-called Confederate States, and all papers relating to the representation in said States shall be referred to said committee without debate."

Senator Anthony stated that this portion of the resolution was a violation of the Constitution, which made the Senate the exclusive judge of the election returns and qualifications of its own members and also a violation of the practice of the Senate by cutting off debate. Both amendments were adopted by the Senate, and the House concurred in the resolution as amended.

This left Messrs. Segar and Underwood, who had been chosen Senators to represent

Virginia from the 4th of March, 1865, free to press their claims to the seats which had been occupied in the Senate since the reorganization of the State government in 1861. It was their duty to the State to press their claims to such seats, and they would have violated their obligations of honor if they had failed to do so.

The joint committee of the two Houses made no report until the month of June, 1866. The Senators and Representatives from Tennessee who were denied their seats at the opening of the session were admitted to their seats in the month of July, 1866.

The Senators-elect from Virginia had a right to expect the same results, and in good faith pressed their claims for recognition.

The portion of Virginia from which they were elected was expressly excepted from the President's proclamation declaring the inhabitants of certain States to be in rebellion, also in the proclamation of emancipation and in the amnesty proclamation.

In the proclamation of emancipation Virginia was included, except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth. These formed the State of Virginia, after the cession of West Virginia, and had a population entitling the State to three Representatives in the House. They had abolished slavery in 1864, and as to them the proclamation was unnecessary. The government of Virginia, as organized in 1861, continued its functions, notwithstanding the reconstruction acts, until Governor Peirpoint's term expired in April, 1868. The convention that framed the new constitution in 1867 expressly validated and recognized as binding all the legislative and judicial acts of the State of Virginia during this whole period.

Still later on, in an action brought by the State of Virginia against West Virginia, the Supreme Court of the United States affirmed the validity of the State government of Virginia and held that its assent in annexing three counties to West Virginia, which were not included in the original cession, was valid and binding upon the State.

Upon these facts and upon the precedents long established, it seems to your committee that Messrs. Segar and Underwood would be entitled to their full salaries as Senators. Mr. Sykes, of Alabama, who had been elected by a legislature pronounced by the Senate as illegal, was allowed his compensation and mileage from March, 1873, to May, 1874, the day he was denied his seat. Mr. Pinchback was allowed pay from March, 1873, when he was elected, to March, 1876, when he was refused a seat, aggregating $16,966.90.

The practice of the Senate, however, in this respect has been modified, and in the cases of Ray and McMillen a compensation for reasonable and moderate expenses only was allowed. Following this rule, the Senate allowed Mr. Segar the sum of $5,000 for his expenses incurred in the prosecution of his claim without an itemized or detailed account of the same.

The fact that Mr. Underwood held and was receiving a salary to another office constitutes no objection to such allowance. Members of the House of Representatives and of the Senate have been granted such allowances while at the same time drawing their salaries. Messrs. Kellogg, Ingalls, and Butler were paid their expenses under similar circumstances. If it was the duty of Judge Underwood to make an effort to obtain his seat he should be paid his expenses, although he could not accept the seat when awarded to him without vacating his other office.

The cases of said Underwood and Segar are alike in all respects, except the terms for which they were chosen. It is true no actual service as Senator was rendered by either, but each stood ready to perform his duties whenever the Senate should allow it; that the said Underwood performed no such service was the fault of the Senate, not his. The precedents fully justify the allowance to said Segar and the allowance asked by the petitioner. The House of Representatives has frequently paid large sums of money to unsuccessful contestants for seats in that body; and the Senate, at the same session during which the allowance was made to Segar, also paid Messrs. Ray and McMillen although neither of them were allowed to occupy their seats in the Senate. The valuable services rendered by said Underwood to the Government in its struggle for national supremacy are matters of history and need not here be repeated. We think the sum allowed and paid to Mr. Segar is a precedent which should be followed in this case, and recommend the passage of the accompanying resolution:

Resolved, That there be allowed and paid out of the contingent fund of the Senate to Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.

SATURDAY, July 5, 1884.

On motion by Mr. Lapham, the Senate proceeded to consider the resolution reported from the Committee on Privileges and Elections June 20, 1884, to pay Maria G. Under

wood, widow of John C. Underwood, the sum of $5,000, in full compensation for ex penses of said John C. Underwood in prosecuting his claim to a seat in the Senate. After debate,

On motion by Mr. Plumb, the Senate proceeded to consider bill S. 2203, &c. [The debate is found on pages 6067-6070 of the Congressional Record, vol. xv, part 6.]

[Second session of the Forty-eighth Congress.]

FRIDAY, February 20, 1885.

Mr. Lapham submitted the following resolution for consideration: "Resolved, That there be paid out of the contingent fund of the Senate to Alice E. Underwood, executrix of the last will and testament of Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expense of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia."

SATURDAY, February 21, 1885.

The Presiding Officer (Mr. Allison in the chair) laid before the Senate the resolution yesterday submitted by Mr. Lapham, to pay the executrix of the widow of John C. Underwood his expenses in prosecuting his claim to a seat in the Senate; and the resolution was referred to the Committee to Audit and Control the Contingent Expenses of the Senate.

THURSDAY, February 26, 1885.

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution submitted by Mr. Lapham on the 20th instant, to pay the heirs of John C. Underwood the amount of his expenses in contesting his right to a seat in the Senate, reported it without amendment.

[Special session of Senate, March, 1885.]

TUESDAY, March 10, 1885.

Mr. Hoar submitted the following resolution; which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate:

"Resolved, That there be allowed and paid out of the contingent fund of the Senate, to Alice G. Underwood, executrix of the last will and testament of Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia."

THURSDAY, March 19, 1885.

Mr. Chace, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution submitted by Mr. Hoar on the 10th instant, to pay the expenses of the late John C. Underwood in prosecuting his claim to a seat in the Senate, reported it without amendment.

[First session of the Forty-ninth Congress.]

On motion by Mr. Hoar,

APRIL 21, 1886.

The Senate proceeded to consider the resolution submitted by him March 10, 1885, to pay the expenses of John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia; and

Resolved, That there be allowed and paid out of the contingent fund of the Senate, to Alice C. Underwood, executrix of the last will and testament of Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the time and expenses of the said John C. Underwood in prosecuting his claim to a seat in the Senate as a Senator from the State of Virginia.

[Thirty-ninth Congress-First session.]

JOHN P. STOCKTON,

Senator from New Jersey from March 4, 1865, till March 27, 1866, and from March 4, 1869, till March 3, 1875.

Mr. Stockton's credentials were presented and he took his seat in the Senate December 4, 1865 At the same time a memorial of members of the legislature protesting against his admission to a seat in the Senate was presented and ordered to lie on the table. January 8, 1866, the credentials and memorial were referred to the Committee on the Judiciary. January 30 the committee reported that the facts in regard to Mr. Stockton's election were as follows: There was no law in New Jersey prescribing the "manner" of electing Senators, other than that they "shall be appointed by the senate and general assembly in joint meeting assembled." The joint meeting electing Mr. Stockton passed a resolution that the candidate receiving a plurality of votes of the members present should be declared duly elected. The joint assembly consisted of eighty-one members. All were present when the vote for Senator took place. Mr. Stockton received 40 votes and Mr. Ten Eyck and other persons 41. The question before the Senate was whether a joint convention could prescribe a plurality rule. The committee reported that for the purpose of choosing Senators the joint convention is regarded as the legislature, so that it is vested by the Constitution of the United States with authority to prescribe the manner of electing Senators; and recommended the adoption of a resolution that Mr. Stockton was entitled to his seat. Some Senators maintained that in the absence of any law a majority was by the parliamentary law of the land necessary to constitute a valid election, and that the legislature alone, acting in a legislative capacity through its two branches separately, was competent to prescribe that a plurality should elect. March 23 the resolution reported by the committee passed the Senate, Mr. Stockton voting, by a vote of 22 yeas to 21 nays. 26 the Senate voted to reconsider the vote agreeing to the resolution. It then resolved "that the vote of Mr. Stockton be not received in determining the question of his seat in the Senate." March 27 the Senate resolved by a vote of 23 yeas to 20 nays that Mr. Stockton was not entitled to his seat.

March

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. 39th Cong., and the report of the committee, with the exception of certain accompanying documents, from Senate Reports, 1st sess. 39th Cong., No. 4.

Special references to the debates of each day, which are found in the Congressional Globe, part 2 1st sess. 39th Cong., are inserted below.

MONDAY, December 4, 1865.

Mr. Wright presented the credentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey for the term of six years commencing on the 4th day of March, A. D. 1865.

The credentials were read and the oaths prescribed by law were administered to Mr. Stockton, and he took his seat in the Senate.

Mr. Cowan presented a memorial of members of the senate and house of representatives of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the Senate as a Senator from that State.

Ordered, That it lie on the table.

On motion by Mr. Cowan,

MONDAY, January 8, 1866.

Ordered, That the credentials of the Hon. John P. Stockton, United States Senator from the State of New Jersey, together with the memorial of the members of the senate and house of assembly of the State of New Jersey protesting against the admission of the Hon. John P. Stockton to a seat in the United States Senate as a Senator from that State, be referred to the Committee on the Judiciary.

TUESDAY, January 30, 1866.

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the credentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State of New Jersey, and the protest of certain members of the legislature of the said State against the validity of his election, submitted a report (No. 4), accompanied by the following resolution:

"Resolved, That John P. Stockton was duly elected, and is entitled to his seat, as a Senator from the State of New Jersey for the term of six years from the 4th day of March, 1865."

Ordered, That the report, with the accompanying credentials and protest, be printed.

REPORT CF COMMITTEE.*

[The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, Poland, Stewart, and Hendricks. ]

IN THE SENATE OF THE UNITED STATES.

JANUARY 30, 1866.-Ordered to be printed.

Mr. Trumbull submitted the following report:

The Committee on the Judiciary, to whom were referred the credentials of John P. Stockton, claiming to have been elected a Senator from the State of New Jersey for six years from the 4th day of March, 1865, together with the protest of certain members of the legislature of said State against the validity of his election, submit the following report:

The only question involved in the decision of Mr. Stockton's right to a seat is whether an election by a plurality of votes of the members of the legislature of New Jersey in joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is valid. The protestants insist that it is not, and they deny Mr. Stockton's right to a seat, because, as they say, he was not appointed by a majority of the votes of the joint meeting of the legislature.

The legislative power of the State of New Jersey is vested by the State constitution in a senate and general assembly, which are required, for legislative purposes, to meet separately, but which, for the appointment of various officers, are required to assemble in joint meeting; and when so assembled, are, by the constitution itself, styled the "legislature in joint meeting.'

The constitution of New Jersey does not prescribe the manner of choosing United States Senators; as, indeed, it could not, the Constitution of the United States having vested that power, in the absence of any law of Congress, exclusively in the legislature; but it does constitute the two houses one body for the purpose of appointing certain State officers. The statute of New Jersey declares that "United State Senators, on the part of that State, shall be appointed by the senate and general assembly in joint meeting assembled;" but it does not prescribe any rules for the government of the joint meeting, nor declare the manner of election.

The practice in New Jersey has been for the joint meeting to prescribe the rules for its own government.

In 1794 fifteen rules were adopted, the first two of which are as follows:

"1. That the election of State officers during the present session be viva voce, unless when otherwise ordered; and that all officers be put in nomination at least one day before their election.

"2. That the chairman shall not be entitled to vote except in case of a tie, and then to have a casting vote."

The other thirteen rules related chiefly to the method of conducting the proceedings. Each joint meeting which has since assembled has adopted its own rules, usually those of the preceding joint meeting, sometimes, however, with additions or exceptions. In 1851 the following additional rule was adopted:

** Resolved, That no person shall be elected to any office, at any joint meeting during the present session, unless there be a majority of all the members elected personally present, and agreeing thereto."

In 1855 the joint meeting, after adopting the fifteen rules of the preceding joint meeting, added the following:

That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared duly elected."

The joint meeting of 1861 adopted the rules of the preceding joint meeting for its own government, among which were the following:

"1. That the election of State officers during the present session be viva voce, unless when otherwise ordered.

"15. That in all questions the chairman of the joint meeting be called upon to vote in his turn as one of the representatives in the senate or assembly; but that he have no casting vote as chairman.

"16. That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared to be duly elected."

The same rules were adopted by each joint meeting from 1861 to 1865.

The joint meeting which assembled February 15, 1865, and at an adjourned session of which Mr. Stockton was appointed Senator, adopted, at its first meeting, the rules of

A reference to the documents accompanying the report is given in the head-note.