disabilities of members elected to the House of Representatives rest upon principles inconsistent with the conclusions of this report. To this two answers may be made: 1. The proceedings of Congress in relation to cases of election while reconstruction of the late rebel States was in progress can hardly be relied upon as settling principles by which either House of Congress ought to be bound in times of peace. The circumstances under which such legislation was had were exceptional, and the legislation itself ought not to stand as a precedent. 2. The bills which have passed were bills originating in the House of Representatives concerning members elected to that House, and although the Senate has concurred in the enactment of such laws it ought not to be regarded as settling principles by which the Senate must be bound in determining the election of its own members. Whenever the House of Representatives manifests its desire to seat a member, although it may require the enactment of a law by both Houses to accomplish the purpose, still the Senate in concurring in such enactment may be regarded as extending a courtesy to the House of Representatives rather than settling principles which will bind the Senate in relation to the election of its own members. To recapitulate, in regard to the precise legal question involved in this case, viz, whether in an election viva voce the votes cast for a candidate known by the electors when they gave their votes to be disqualified are to be considered as thrown away and the qualified candidate next on the poll is to be declared elected, we have in favor of such a principle: 1. The uniform and unbroken current of decisions in the British Parliament from the earliest to the present time. 2. The unanimous voice of the English courts of law. 3. The express and well-considered decision of the supreme court of the State of Indiana in the case of Gulick vs. New (14 Ind. Rep., 927), and the case of Carson vs. McPhetridge (15 Ind. Rep., 327), applying the rule even to a popular election. 4. The authority of Cushing's Lex Parliamentaria, the best American work on the subject; Wilson's Digest of Parliamentary Law; Angell and Ames on Corporations, a work of standard authority; the precedent of the legislature of Massachusetts even in regard to a popular election of its members (vide Cushing's Reports of Contested Election Cases in Massachusetts, page 499; and another case, same report, 576). And opposed to this principle in regard to an election viva voce we have absolutely nothing. Not a writer, English or American, not a decision of any court or dictum of any judge in either country has been cited condemning or denying this principle in regard to such an election; and, on the contrary, the court, in Com. vs. Cluley (56 Penn. St., 270), which is relied on as being opposed, expressly recognize and indorse this principle when applied to elections viva voce by a limited number of electors. The cases which have been cited from the American reports and are relied upon as being opposed to this principle all related to popular elections by ballot, and not to elections viva voce. Yet even in those cases the element of knowledge that the candidate was disqualified did not exist, and therefore all that is said about it in those cases is obiter dicta. A declaration from the bench is obiter dictum, and not binding as authority when it was unnecessary to a decision of the case in which it was made. To illustrate, the Supreme Court of the United States in the Dred Scott case (19 Howard, 393), first determined that the circuit court of the United States had no jurisdiction in the case. That ended the matter. The decision of the court below had to be reversed for that reason. It was therefore obiter dictum for the court to proceed to decide questions which, decided either way, would not affect the judgment to be pronounced. Had the court in that case held that the Missouri compromise, so called, was constitutional, yet the decision, that is, the judgment, would have been the same. The true rule upon this subject is given by Vaughan, C. J. (Vaughan, 382), as follows: "An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such or a contrary opinion had been broached, is no judicial opinion, nor more than a gratis dictum. But an opinion, though erroneous, concluding to the judgment, is a judicial opinion," &c. To the same effect see Heath, J., in Hutchinson vs. Birch, 4 Taunton, 625; Pittstown vs. Plattsburg, 18 Johnson, 418. Therefore all that was said by the judges in the American cases cited, which cases did not involve the element of knowledge of the incapacity of the candidate, is obiter dicta. But were it otherwise, and had those decisions been made in cases which showed that the disqualification of the candidate was known to the elector, still the fact that they relate only to popular elections by ballot would render them wholly inapplicable to the case now before the Senate. Therefore it is submitted that upon reason and authority the votes cast for Mr. Vance, with full knowledge on the part of the members of both houses of the legislature that he was disqualified by the Constitution to serve in this body, ought to be considered as thrown away; and that, inasmuch as a majority of all the members elected to each house were actually present," the election was legal, and that the qualified candidate receiving the highest number of votes, and a majority of all votes cast for qualified candidates, was duly elected. It is conceded that majorities have a constitutional right to govern in this country; but it is not conceded that even the majority of the legislature of a State may morally or constitutionally defeat government by refusing to elect Senators to serve in the Senate of the United States. In this case the majority had a right to elect a qualified person to the Senate; but, having waived their right by voting for a person known to be disqualified, as much as though they had refused to vote at all, or had voted for a man known to be dead, the minority who complied with the Constitution by voting for a qualified candidate may well be held to have expressed the will of the legislature. If the majority, being called upon, will not vote, they cannot complain that the election was decided by those who did vote, though a minority of the elective body. And voting for a person known to be disqualified is not voting. Such votes are void-no votes; and the highest number of votes cast, a quorum being present, must effect an election. Therefore, in view of the premises, the minority of your committee recommend the adoption of the following resolution: Resolved, That Joseph C. Abbott has been duly elected Senator from the State of North Carolina for the term of six years commencing on the 4th day of March, 1871, and that he is entitled to a seat in the Senate as such Senator. MATT. H. CARPENTER, Minority of Committee. On motion by Mr. Logan, the Senate proceeded to consider the following resolution, 1eported from the Committee on Privileges and Elections: "Resolved, That Joseph C. Abbott, not having received a majority of the votes cast by the North Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of the United States, is not entitled to a seat in said United States Senate as such Senator." On motion by Mr. Carpenter to amend the resolution by striking out all after the word "resolved," and inserting in lieu thereof the following: "That Joseph C. Abbott has been duly elected Senator from the State of North Carolina for the term of six years, commencing on the 4th day of March, 1871, and that he is entitled to a seat in the Senate as such Senator," After debate, On motion by Mr. Edmunds (at 5 o'clock and 15 minutes) the Senate adjourned. [The debate, including a speech by Mr. Logan, is found on pages 219-229 of the Appendix to the Congressional Globe referred to in the head-note.] The Senate resumed, &c. FRIDAY, April 12, 1872. [The debate is found on pages 2387-2390 of the Congressional Globe referred to in the head-note. Mr. Carpenter's speech is found on pages 245-257 of the Appendix referred to in the head-note.] The Senate resumed, &c. MONDAY, April 15, 1872. [The debate is found on pages 2431-2434 of the Congressional Globe referred to in the head-note. Mr. Thurman's speech is found on pages 234-245 of the Appendix referred to in the head-note.] The Senate resumed, &c. MONDAY, April 22, 1872. [The debate is found on page 2639 of the Congressional Globe referred to in the headnote. Mr. Pool's speech is found on pages 272–279 of the Appendix referred to in the head-note.] TUESDAY, April 23, 1872. The Vice-President announced that the morning hour had expired, and called up the unfinished business of the Senate at its last adjournment, viz, the resolution reported from the Committee on Privileges and Elections declaring Joseph C. Abbott not entitled to a seat in the Senate as a Senator from the State of North Carolina; and the Senate resumed the consideration of the said resolution. On the question to agree to the amendment proposed by Mr. Carpenter to amend the resolution, viz: Strike out all after the word "resolved," and in lieu thereof insert: "That Joseph C. Abbott has been duly elected Senator from the State of North Car olina for the term of six years commencing on the 4th day of March, 1871, and that he is entitled to a seat in the Senate as such Senator,' 19 After debate, It was determined in the negative-yeas 10, nays 42. On motion by Mr. Carpenter, the yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are Messrs. Ames, Chandler, Cragin, Gilbert, Howe, Nye, Osborn, Patterson, Pool, and Sawyer. Those who voted in the negative are Messrs. Alcorn, Bayard, Blair, Buckingham, Caldwell, Cameron, Casserly, Clayton, Cooper, Davis of West Virginia, Edmunds, Fenton, Ferry of Connecticut, Ferry of Michigan, Frelinghuysen, Goldthwaite, Hamilton of Maryland, Hamlin, Hill, Hitchcock, Johnston, Kelly, Logan, Morrill of Maine, Morrill of Vermont, Morton, Pratt, Ramsey, Robertson, Schurz, Scott, Sprague, Stevenson, Stockton, Sumner, Thurman, Tipton, Trumbull, Vickers, West, Windom, and Wright. So the motion was not agreed to; and On the question to agree to the resolution reported by the Committee on Privileges and Elections, it was determined in the affirmative. So it was Resolved, That Joseph C. Abbott, not having receiveda majority of the votes cast by the North Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of the United States, is not entitled to a seat in said United States Senate as such Senator. [The debate is found on page 2676 of the Congressional Globe referred to in the headnote. Mr. Carpenter's speech is found on pages 328-334 of the Appendix referred to in the head-note.] COMPENSATION OF MR. ABBOTT. WEDNESDAY, April 24, 1872. Mr. Morton, from the Committee on Privileges and Elections, reported the following resolution; which was read the first and second times, by unanimous consent: "Resolved, That Joseph C. Abbott, late contestant for a seat in this body from the State of North Carolina, be allowed his salary from 4th of March, 1871, up to the 23d of April, 1872, and one mileage each way." The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. The said resolution was read the third time, by unanimous consent. CREDENTIALS OF MR. RANSOM. MONDAY, February 5, 1872. The Vice-President laid before the Senate the credentials of Matt W. Ransom, elected a Senator by the legislature of the State of North Carolina for the unexpired portion of the term commencing March 4, 1871; which were read. Ordered, That they be referred to the Committee on Privileges and Elections. WEDNESDAY, April 24, 1872. Mr. Morton, from the Committee on Privileges and Elections, to whom were referred the credentials of Matt W. Ransom, elected a Senator by the legislature of North Carolina for the term of six years commencing March 4, 1871, reported that upon examination the committee had found that the credentials were in due form, and recommended that Mr. Ransom be admitted to a seat in the Senate; Whereupon Mr. Ransom appeared, and the oaths prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. COMPENSATION OF MR. RANSOM. FRIDAY, April 26, 1872. Mr. Bayard submitted the following resolution; which was referred to the Committee on Privileges and Elections: "Resolved, That the pay of the Hon. Matt W. Ransom, as a Senator from the State of North Carolina, shall commence on the 4th day of March, 1871." TUESDAY, June 4, 1872. Mr. Thurman, from the Committee on Privileges and Elections, to whom was referred the resolution submitted by Mr. Bayard April 26, 1872, relative to the pay of Matt W. Ransom, a Senator from the State of North Carolina, submitted the following report: The Committee on Privileges and Elections, to whom was referred the following resolution offered by the Senator from Delaware, Mr. Bayard, to wit: "Resolved, That the pay of Matt W. Ransom as a Senator from the State of North Carolina shall commence on the 4th day of March, A. D. 1871," Report that the practice in each House of Congress seems to have been founded upon an interpretation of the act of July 12, 1862 (12 Stat., 624; Manual, 312), consistent with the resolution. As this interpretation has been practiced upon since 1862, and may be considered as within the spirit of the act aforesaid, your committee report back the resolution with a recommendation that it be passed. O. P. MORTON. A. G. THURMAN. M. H. CARPENTER. The Senate proceeded to consider the said resolution as in Committee of the Whole; and no amendment being made, it was reported to the Senate. Ordered, That it be engrossed and read a third time. Resolved, That it pass. [Forty-second Congress-Second and third sessions.] S. C. POMEROY AND ALEXANDER CALDWELL, of Kansas. April 8, 1872, a report of a joint committee appointed by the Kansas legislature to investigate charges of bribery and corruption connected with the Senatorial elections of 1867 and 1871 was presented and referred to the Committee on Privileges and Elections. Mr. Pomeroy had been elected in 1867, and Mr. Caldwell in 1871. May 11, the Senate resolved that the committee be authorized to investigate these elections. June 3, the committee reported in regard to Mr. Pomeroy's election that there was no evidence that Mr. Pomeroy had used money to influence any vote in his favor, except hearsay, and that was plainly contradicted by direct testimony; that the charges of bribery and corruption against Mr. Pomeroy, connected with his election, totally failed to be sustained by competent proof, but seem to have been urged for some purpose unknown to the committee beyond that of correcting existing evils. Two members of the committee did not concur in the last conclusion. The committee reported the testimony taken, and asked to be discharged from the further consideration of Mr. Pomeroy's case. February 17, 1873, the committee reported in regard to Mr. Caldwell's election that they could "not doubt that money was paid to some members of the legislature for their votes, and money promised to others which was not paid, and offered to others who did not accept it; " that it was a subject of discussion in the committee whether the offenses of Mr. Caldwell should be punished by expulsion, or go to the validity of his election, but that a majority were of opinion that they went to the validity of his election and had the effect to make it void. The committee submitted the evidence taken and recommended the adoption of a resolution that Mr. Caldwell was not duly and legally elected. March 24, after long debate on the resolution, before a vote was taken, Mr. Caldwell resigned his seat. February 10, 1873, on motion of Mr. Pomeroy, the Senate resolved that a select committee investigate charges of bribery and corruption in the Senatorial election held in January, 1873, relating to the alleged purchase by Mr. Pomeroy of the vote of A. M. York, a State senator. (Mr. Pomeroy had been a candidate for re-election in January, 1873.) February 18, a memorial of B. F. Simpson was presented, praying that the committee be authorized to investigate certain other general charges of bribery against Mr. Pomeroy. The Senate resolved that the committee be directed to inquire into these general charges. March 3, the committee reported the evidence, and the conclusions that none of the charges preferred by Mr. Simpson were sustained"; and that, in regard to the charges of Mr. York, he "had not sustained his charge by sufficient proof, contradicted as it was by the evidence of Mr. Page and Mr. Pomeroy." One member of the committee did not agree with the report. No further action on the subject was taken. " The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 42d Cong., 2d and 3d sess., and the reports of the committees, references to which are given in foot-notes. Special references to the debates of each day are inserted below. [Second session of the Forty-second Congress.] TUESDAY, March 5, 1872. Mr. Pomeroy submitted the following resolution; which was considered by unanimous consent, and agreed to: "Resolved, That all papers and communications relating to the election of Senators in the State of Kansas in the years 1867 and 1871 be referred to the Committee on Privileges and Elections, and that they be directed to report to the Senate, after examination, what action, if any, should be taken by the Senate in relation thereto." Mr. Pomeroy presented a printed paper, purporting to be the report of a committee of investigation of the legislature of Kansas on the Senatorial elections in that State in the years 1867 and 1871, and moved that the same be referred to the Committee on Privileges and Elections. The reference of the paper being objected to, Ordered, That the paper lie on the table. On motion by Mr. Hamlin that the Senate reconsider its vote agreeing to the resolution of Mr. Pomeroy in reference to the election of Senators in the State of Kansas in 1867 and 1871, it was determined in the affirmative; and, On motion by Mr. Hamlin, Ordered, That the resolution lie on the table. [The debate is found on pages 1410, 1411 of the Congressional Globe, 2d sess. 42d Cong., part 2.] MONDAY, April 8, 1872. The Vice-President laid before the Senate a report of a joint committee appointed by the legislature of Kansas to investigate charges of bribery and corruption connected with the Senatorial election in that State in 1867 and 1871; which was referred to the Com. mittee on Privileges and Elections. |