APPENDIX TO THE BREVIER LEGISLATIVE REPORTS.
TWELFTH VOLUME.
The Burson and Kline Contested Election Case--Debate in Continuation.
IN SENATE.
THURSDAY, January 5, 1871.[IN CONTINUATION--PAGE 19--2D. COLUMN.]
Mr. HOOPER Mr. President: I understand the simple question before the Senate to be this; Whether a Senator presenting credentials regular upon their face is entitled, in the first instance, to be sworn in or not? Upon that, it seems to me, there can be no doubt, for it has been a recognized practice, laid down in books of Parliamentary law clear and distinct. Cushing's work upon that subject, which we recognize as standard authority, lays it down clearly and distinctly that in the first place in the organization of a body of Senators who present their credentials, regular upon their face, are entitled to be sworn in and for the time being, take their seats, though in point of fact not legally entitled to hold their seats, and upon proper presentation of the matter they may be ousted. I understand the question to be clearly and distinctly settled that where a member presents credentials regular upon their face, he is entitled to be sworn in. That is precisely what we have done today, and the Chair is right in sustaining that course. This is all I have to say now. I think to go back on that decision is to trample under foot a plain recognized law upon the subject.
Mr. BROWN. Mr. President: It occurs to me the subject matter contained in the bill, is not the proper question before the Senate, and I have nothing to say upon that. The question now is whether the ruling of the President is right or wrong. The Senator who has just taken his seat says that when a Senator comes before the bar of the Senate with a certificate, regular upon its face, showing that it is legal in form--that certificate makes a prima facie case, and the Senator should then be sworn in. That in my judgment, standing alone by itself, independent of anything else, would be correct.
Those certificates the several Senatore presented this morning to whom no objection was made were prima facie evidence of valid elections; and that they posses the qualifications necessary to entitle them to the privileges of the floor of the Senate as members. But that only is a prima facie case and when coupled with something else, perhaps the prima facie case is sufficiently impeached to justify the President of the Senate in refusing to permit the oath of office to be administered to those persons whose prima facie claims to some extent have been impeached.
What is the case before the Senate? The senator fram Delaware, [Mr. Burson,] comes here with a sertificate valid upon its face. It conforms to law so far as that is concerned. It recites he possesses the necessary qualifications hat he should possess to entitle him to privileges as a member of the Senate. But connected with that is an objection of a Senator who has the privilege of the Senate and with this objection comes a contest. Does not his objection and his word as a Senator, that he will prosecute a page: 394[View Page 394] contest which will impeach the authority of the Senator to the privileges of the Senate destroy this prima facie evidence to such an extent that it should not be considered until the Senate is organized?
The Senator who has just taken his seat said is was parliamentary that a certificate upon its face absolutely obliged the presiding officer to swear the member presenting it. With all due deference to the honorable Senator, such is not the case. As the Hon. Senator from Monroe, [Mr. Hughes,] stated a few minutes ago Representative after Representative, and some Senators in Congress have come with certificates, in due form of law, stating the validity of their elections and that they possess all the qualifications necessary, yet the objection of a sitting member, coupled with the statement that he would show cause why the member presenting himself, is not entitled to the privileges of the floor, has been repeatedly held a sufficient cause to destroy the prima facie evidence, and send him to the bottom of the list to wait until the body itself determines his case, and not the presiding officer. That is the question now. Was the President of the Senate right in permitting the Senator from Delaware, [Mr. Burson,] to be sworn in, whose certificate was attacked, or ought he not to suspend that question, to be determined by the Senate?
It occurs me, no matter what were the rules years ago; it is a well settled practice in this country, and the safer and better course would have been for the body itself to have determined that question, and for this reason, the paramount duty and object of members of a legislative body, is to represent their constituency. The constituency of every senator has a right to be represented upon every imaginable question here. The President has no constituency--he represents nobody as a Senator--and whether the Senator from Delaware, [Mr. Burson,] had prima facie evidence or not, the people had the right to be represented, and not, with all due deference to the Chair, be ignored by the Chair.
Mr. MARTINDALE. Mr. President: We have a mode of prosecuting contests in this body laid down in the Statutes; and there is no pretensions made here, that this proceeding conforms with it. There has been no notice served upon the Senator, whose seat is contested, and the only grounds now upon which this action is based--the only precedent cited--is the action of the two houses of Congress, where members presenting their credentials are compelled to wait the action of the body. Those cases are not at all in point. When the Senator's [Mr. Burson's] credentials were presented there was no Senate--we had no Senate--there was no Senate to decide upon a motion. There was no quorum here. There was probably only twenty members in their seats. The others were not sworn in and no motion could be entertained by the Chair, it matters not what the character of that motion was, until there was an organization effected. If there was no other grounds in this case, except the decision of the Chair, no motion could be entertained until Senators were sworn in in a sufficient number to constitute a Senate. Then the decision of the Chair is right and should be sustained. But suppose it is maintained that there is a precedent; I will ask gentlemen, where that precedent is in the history of the Legislation of Indiana? Not one instance can be found where there was a contest, but the parties holding a regular certificate had been sworn in.
Probably in one hundred cases has there been contests raised in the State of Indiana, but never to my knowledge, has there been a case made, but there was a house, when a motion was made to reject the credentials of a member. If gentlemen have such a precedent, I should like to see it. They say the action of Congress is a precedent. It is no such thing. In Congress there is a Senate and there is a House. They may receive or reject. They are a legislature, but we have no such thing here. There were only twenty members present and one rises from his place and protests against a member receiving the oath. A Senator may do it--an outsider may do it. I don't insist that it is necessary that the Senate should organize by the election of officers, but Senators must be sworn in, in order to constitute a constitutional quorum. This motion being made when there was no Senate, the Chair did right and I think gentlemen will find great difficulty in saying the Chair didn't do right in deciding that there was no contest. There was nothing but a simple protest. And there is no precedent for any such thing. If there is a majority in the Senate who wish to reject after the Senate is organized, and expel a member after he is sworn in, I suppose by a revolutionary power, that may be done. But when credentials are presented, and they are regular, no protest by a member or an outsider can prevent his being sworn in.
Mr. HUGHES. I am glad to see a disposition manifested to return to what is supposed to be constitutional law. The argument that has just be made very conclusively proves that a half dozen Senators or a dozen Senators, in the absence of others outside the bar who hold certificates of election, are not competent to do any legislative act. I found at the last session of the Senate, in the fore part of this book, (THE BREVIER LEGISLATIVE REPORTS,) running through several pages, that the presiding officer of this body held that doctrine--that a minority were only competent to adjourn from day to day, and compel the attendance of absentees--but I found toward the close of the book, that some progress was made upon that page: 395[View Page 395] question, and that it was ascertained that there was no such thing as a minority of the State Legislature: and that while a majority stood outside the bar with certificates, those inside had the right to transact legislative business of the highest moment--to change the constitution of the State. So much by way of comment upon the consistency which claims protection of law in one breath when it suits the purposes of party, and rejects it in another when it is deemed necessary to tear down the Constitution of the country.
With the permission of the Senate, I will suggest that it is undoubtedly parliamentary law that the person holding a certificate of election is prima facie entitled to be sworn in; but where objection is made, that person should stand aside until the body is organized which, under the constitution, has the right to decide the question of eligibility. There are Senators now upon the threshhold of Congress, elected from States, and objections being made, their credentials were referred in this manner, and they have been waiting there three or four years. I refer to the case of the State of Georgia. It is a matter of every day occurrence in Congress that where objection is made to a member being sworn in the presiding officer or Clerk of the House of Representatives waives the matter until those to whom there is no objection may be sworn in. I suggest that those gentlemen to whom there were no objection be sworn in first and take their seats. Then the Senate will be duly organized, and can be put in posession of the facts in this case. If the chair decides it now, it will only be anticipating the question three or four minutes' time.
But sir, as to the question before the Senate. A Senator presents to this body a certificate of election, and it is true, as the Senator from Marion [Mr. Martindale,] has said, there is no Senate here. That is a sound conservative and constitutional position, but it did not serve the purpose to protect the people of this country from negro sufferage when it was invoked.
There was no Senate here, then sir, what were your functions? What were you presiding over? Your right to decide this question resulted from your being a presiding officer. If there was no Senate there was no presiding officer, because there was no Senate. Then what were your duties? Simply clerical duties. You had no power, sir, to decide this question. Your power was in abeyance as Lieutenant Governor, and restricted simply to organizing the body. When a Senator presents his certificate, as a matter of course, in the exercise of clerical duties, if you find it in due form you administer the oath. But a Senator rises in his place and advises the chair--not then being the presiding officer of the Senate, because there was no Senate, as the gentleman from Marion says, but simply a medium for the purposes of an organization--a Senator informs the chair that he objects to the swearing of a Senator, because there is another paper here which he desires to present to the body, which destroys the prima facie case. And when one moment of time--one moment of time--would have been sufficient for the now presiding officer, but the then Clerk, to have brought the Senate into existence, which, under the Constitution, has the exclusive right to decide as to the eligibility of the gentleman presenting the certificate, it would have been but fair to the body--it would have been but courteous to the Senate for him to stand by the old, sure conservative principle which avoids the assumption of doubtful power. But the chair--then Clerk--in the exercise of his best judgment, no doubt, decided to swear in a Senator, put him in his seat to hold it perhaps during the session or the greater part of it, with full notice that he was charged with an act, which, under the constitution, renders him ineligible to a seat in this body.
Something has been said about no regular notice of contest being served. This is a peculiar case. The petition is signed by the opposing candidate, a member of the same party with the Senator sworn in. These contested elections are generally decided under the influences of party, but this contestor is a member of the same party as the gentleman sworn in, and the petition is also signed by a number of prominent citizens of both political parties, and the charge is bribery. Any voter has the right to petition this body, and inform it that a party who presents prima facie evidence is disqualified under the constitution by offering bribes to influence voters, and that is charged in this memorial.
This is a very grave question, and whatever the law and usage has been heretofore, I regard it that the Senate would be setting a very poor precedent to allow the presiding officer to exercise the power of sitting a member here to hold his seat, and thus suspend the power of the Senate. As he proposes to exercise the powers of the Senate, it is a bad precedent. He seats a member here to represent two counties of the State, when one minute later the Senate could have decided the question itself. It is said that we have no precedent. I am not sure that it is correct, but it makes little difference; now is the time to make a precedent.
Mr. MARTINDALE (interposing.) With the Senator's permission, I desire simply to ask this question. Taking the ground adopted by the Senator, that it was the duty of the Chair to refuse to swear a person under these circumstances, suppose the same objection should be made to twenty others? If it is the duty of the Chair to withhold the oath how would he ef- page: 396[View Page 396] fect an organization of the Senate? You never can create a quorum.
Mr. HUGHES. Whenever that case arises it will be time enough to discuss it, I take it for granted that the case will hardly ever arise where so many persons will be objected to in good faith; and should the number be objected to and the objections be made in good faith I hold that delicacy and properity on the part of the officer organizing the body, would induce him to postpone the cases until members not objected to be sworn in, and then, after organizing the Senate, the question could be properly brought before the body. The Senate could have been organized in one moment, yet the Senator [Mr. Burson] was sworn in by the mere act of the presiding officer of the Senate.
I am not in favor of keeping a man standing outside of the bar with certificates in his hands, week aftey week, while some person not entitled to represent his constituency has a seat on this floor. I would regret very much to suspend the right of the Senator to his seat one moment if his title is clear. On the other hand, I would equally regret having his constituency represented by an unauthorized agent. It operates in two ways.
I beg leave to call the attention of the Senate to the fact that the merits of the contest is not now before the Senate. The question is the naked proposition: Shall the presiding officer, when objection is made, swear in a Senator upon a certificate of election? Shall he exercise the power to swear him in when a Senator gives notice of objection in good faith, and sends up a petition of voters interested, remonstrating against it?
I say if the Chair has that power--the constitutional power of the Senate to exercise supreme control over the question of the fights of members to their seats, is a mere farce.
If there is no precedent, this is a good time to make precedent. Let the Senate assert its rights and sustain this appeal, and claim the right to settle this question for itself. A little forbearance and a little patience on the part of the presiding officer would have avoided this controversy.
I presume the presiding officer acted conscientiously, believing that to be his duty. But a little consideration and courtesy upon the part of the gentleman claiming the seat would have relieved the Senate and the presiding officer both.
There was a time in the history of this country, when a gentleman presenting a certificate of election to this body, being advised that his constituency charged him with bribery, and desired a hearing on that question before the Senate itself, which hearing could have been had in ten minutes;here has been a time when it would have taken a long search to have found the man who would have insisted upon taking his seat.
In those times, most men placed in these circumstances would have said: "Mr. President, I will not embarass the Chair nor the Senate and I waive presenting my credentials now."
I would have stepped aside, and presented my credentials after the Senate was organized. But the Senator from Delaware, if a Senator, slips in a seat through the necessity of an organization, supported by the assumption of the presiding officer. He makes himself a necessity. We are to have no Senate without the Senator from Delaware. I hope the appeal was properly taken, and that it will be sustained by the action of the Senate, but the oath has been administered, and the question now before the Senate is, whether, after the oath has been administered over an objection, and an appeal taken and failed, this body has lost its jurisdiction over the case? I say not. We ought to set a precedent now and maintain the rights of the Senate. We ought to determine what should be done when an appeal was made. By sustaining the appeal the Senator has all his rights, to present his credentials in open session and have the Senate decide whether he has a right to a seat here. If the appeal is not sustained, we have set a very revolutionary and dangerous precedent, and that is that the presiding officer of this body can make a Senate and upon prima facie evidence can decide who can sit here.
Mr. WILLIAMS. Mr. President: I rise for the purpose of correcting the Senator from Marion [Mr. Martindale.] We have precedents. There is a similar case to this. I have in my hand the Journal of 1857, of the House of Representatives which contains a case, and it is this: Leonidas Sexton of the county of Rush, came up to be sworn in. I will read the motion that was made then. "Upon the county of Rush being called, Mr. Humphreys objected to administering the oath of office to Mr. Leonidas Sexton, claiming a seat from said county. Pending the discussion of which, on motion by Mr. Davis of Sullivan, the House proceeded to the election of Speaker by a viva voce vote." So the matter was passed without swearing in Mr. Sexton. That is a case precisely in point to this; perhaps not quite so strong, for I do not recollect whether there were any papers presented. But objection was made and he was not admitted. Some days after Mr. Whitcomb offered the following resolution:
RESOLVED, That Lenoidas Sexton be forthwith sworn in as a member of this House from the county of Rush, and that he retain his seat upon this floor as such member, until this House shall decide by vote, that said Sexton is not entitled to said seat as Representative from said county.
Upon that resolution the vote resulted yeas 43, nays 52, so it was not agreed to. Several page: 397[View Page 397] days latter to the time when the first proposition was made, Mr. Gordon offered the following:
RESOLVED, That Leonidas Sexton, having produced to this House the certificate of the Board of canvassers showing that he was duly elected by a majority of the voters or Rush county, at the October election, 1856, to a seat in the House of Representatives of the current session of the General Assembly of the State of Indiana, which certificate is properly authenticated and shown to be genuine, by the certificate of the clerk of the Rush Circuit Court, and attested by the proper signature of said Clerk, and seal of said Court, be now sworn in and admitted to his seat as a member of this House.
Mr. Studebaker moved to lay that resolution on the table, and this motion was agreed to by yeas 58, nays 37. Among those voting in the majority was John W. Davis, who had a great deal of legislative experience, having been a Speaker of the House of Representatives in Congress. The Senator from Marion, [Mr Martindale,] will at least admit that here is some authority.
Mr. MARTINDALE. Mr. President: The precedent the Senator has brought forward is no precedent in the case.
Mr. JOHNSTON. I call the Senator to order. He has spoken once already.
The LIEUTENANT GOVERNOR. The point of order is not well taken for the Senate has adopted no rules as yet.
Mr. MARTINDALE. As I was saying, the Senator has brought forward no precedent for our guidance in the case before the Senate. In that case there was a House and a motion was made to a Honse, and the record shows a quorum voting in each case. If there is a point in it, it is this: That the Chair cannot sustain a motion until there is a Senate, and there is no Senate until a quorum is sworn in. The gentleman's precedent falls short in the point I make. I admit that when there is a Senate gentlemen may reject any member whether there is a contest or not. But the precedent cited does not apply in this case because there was a quorum and the vote so shows. When the motion was made here there was no one to sustain a motion, or vote for a motion, and how could the Chair sustain it? And I maintain that the Chair cannot sustain an appeal and should utterly ignore an appeal from a decision made when there was no organization.
Mr. JOHNSTON, by leave, offered a resolution, which was adopted, concerning rules and orders--see page 20.
Mr. SCOTT. I want to make an inquiry: Whether any depositions have been taken in this case within the notice of the Chair?
The LIEUTENANT GOVERNOR. The Chair only knows of what has been read at the desk and the statement of the Senator [Mr. Burson] that no notice of contest has been served upon him.
Mr. SCOTT. I want to inquire further--whether those papers came from the Secretary of State or from some other quarter?
Mr. HENDERSON. These papers were filed, as I understand it, in the clerks offices of Delaware and Madison counties, and the testimony, depositions and evidence are all ready to go to a Committee.
Mr. SCOTT. Of course all these questions have really nothing to do with the matter as presented. There is but one simple question, as I understand it, presented here, and that is whether the Chair was correct in its ruling. It is rather a novel preceding at best. Never since I have been a member of any deliberative body, has any such question been presented, nor am I familiar with any such question. I presume there are such questions but I have not had time to look them up.
I am governed in my action and expect to be governed in my vote by the simple proposition of common sense. I like to be governed by that when I can, and I think I have it in this case: and I think the Chair was right in its ruling upon this simple ground. It is ground, I am sure, sustained by parliamentary law as well as common sense. I understand the Senator from Delaware [Mr. Burson] presented credentials in regular form, properly certified, and showing himself entitled to a seat here. There was no question made of the correctness of that certificate by any man on this floor; had there been, there might have been a different decision by the Chair; but the presumption of law and everything else is certificate was regular, as no one has made any objection to it.
Here is the certificate of a man elected a Senator in the regular constituted form, showing that he is entitled to represent the county he comes from, and now I say without any precedent or some law in the case it would be a very high-handed proceeding upon the part of the Chair to say to him "Stand aside, sir." Why should he do it? I don't know; I cannot say. Gentlemen refer to cases in Congress and they take them for precedents for us. I do not propose, sir, to deprive a county of this State from its proper representation here by any such precedent. I presume all these cases referred to, come from a quarter where every thing is in doubt and in uncertainty, and; there is prima facie reason for objection in their cases. But no such condition of affairs pertain: to Indiana. I take it that when the Chair acts from the certificate of an officer, under the seal of that officer, he has done about as near right as any body can do until he is informed of something to the contrary from more than one or two individuals.
Now sir, I should dislike very much if my county were to be prevented from representation by simply the request of any one or two men; or by a Senator upon this floor stating that "I object to Vigo county being repre- page: 398[View Page 398] sented on this floor, for I have got something back here which I desire to present." Sir, if the senator is not entitled to a seat on this floor there is a regular course pointed out by law, by which the Senate may relieve itself of him.
[Here a message was received from the House of Representatives announcing the organization of that body.]
Mr. SCOTT (resuming.) Now, sir, if we are setting a precedent, I say this is the safer course, in fact the only safe course because it is the only way pointed out by the statute; the other rests upon doubtful precedents. When we are following the statute we are tolerably correct.
Mr. HUGHES. The question is whether or not, there being objection, the Presiding officer of the Senate shall decide?
Mr. SCOTT. Mr. President: The same objection occurs to me that occurs to the Senator from Marion [Mr. Martindale.] If Senators desire, or should they object to a sufficient number, we could never have a Senate. But a gentleman here says, perhaps that state of things may never arise. In reply, I will say, stranger things arise on this floor. But the Senate has all the privilege it can ask for in the way pointed out by law for the settlement of such questions--appoint a committee of investigation, hear the evidence and then reject the Senator, if proper; but to take him upon trust with the certificate of the proper officers and the voice of a majority of the people of his district declaring him to be their representative, in opposition to the objection of any man or any number of men, in my judgment is the safer course; and as a precedent I prefer that because I think it is safer.
Mr. HADLEY. Mr. President: The Senator from Monroe [Mr. Hughes] has seen proper to criticise the action of the Presiding officer of this body in this matter. Now, sir, if I understand the manner of organizing the Senate of Indiana, the Senator from Monroe certainly must be mistaken. The Constitution of the State provides that the Lieutenant Governor, by virtue of his office shall be a part of the Senate--just as much a part of the Senate as any member representing a constituency in it. It defines what the duties of the Lieutenant Governor are, in connection with the Senate; and his duties attach immediately upon his election. Then we have the Constitution providing when this body shall assemble, and it makes it the duty of the Lieutenant Governor to take the Chair, and call the Senate to order, and to call for Senators bearing credentials to be sworn in. These duties the Lieutenant Governor has performed to-day. He has called the Senate to order: The roll call shows that but twenty Senators occupied seats and that is less than a quorum. Then the Senators elected were called upon and presented their credentials: The Lieutenant Governor has no authority to go beyond those credentials.
The law provides the manner in which a gentleman may be admitted upon this floor as a Senator. The provision is that he shall present credentials in a certain form, and that form has been complied with by the Senator from Madison [Mr. Burson.] It is true, here comes a protest, but it comes before this Senate is organized, and it comes in no authorized shape. There is no precedent, and no provision in the Constitution or statutes, allowing a paper to come in, in this shape. The proceding is entirely irregular.
The Senator from Monroe, [Mr. Hughes,] speaks about good faith. How was this Senate to know whether this protest is made in good faith or not. Probably there is not a signature to that document that is known upon this floor by a majority of the Senate, and how do we know but this is gotten up to subserve party purposes and not in good faith? It is just as safe for us to presume that it is not in good faith as that it is, coming from the source and at the moment it does.
There is a remedy provided by the contestor in this case. If he is a legal representative from that district, there will be an opportunity offered to satisfy this body that he is, and when that is done he will be admitted to a seat. The fact whether this protest is made in good faith or in bad faith may be determined by a committee, and that is the way this thing should go.
The Senator from Monroe speaks of a precedent, and says this is a good opportunity to make one. He also, in the same connection speaks of revolution. It occurs to my mind if revolution is the precedent the Senator wishes to establish, this is a good beginning for it is very clear to every Senator that if this precedent is established and adhered to by subsequent Senates, that a few mischievious men in each Senatorial district in this State may at all times prevent an organization of the Senate if they so desire to subserve a certain interest. If we are not to inquire into this protest, but act upon it and allow it to prevent a Senator from being sworn in, then I ask this Senate, what is there to prevent any mischievious men who desire revolution from preventing an organization for all time to come. We see the dilemma we put ourselves in. Will we put a construction upon the Constitution that will be suicidal?
The Senator from Monroe [Mr. Hughe] has seen proper to charge this side of the House with inconsistency--that when it subserves our purposes we take the position that a less number than thirty-four Senators are a quorum to do business. I do not understand it in the same way, and I say the charge is unwarranted by the facts. What were the facts? When the Senate opened at the special page: 399[View Page 399] session, Senators stood outside of the bar with credentials in their hands and resolutely and zealously refused to come in and qualify. They prevented a quorum by their own wrong; and it was impossible for us to proceed with legislation. Here were men elected to the Senate and nothing to prevent their coming in, but they refused to do it. But what are the facts to-day? Here is a Senator who presents his credentials in good faith and in a regular manner. I say the same facts do not exist at all, and the action we take to-day is not inconsistent with any former action.
Mr. BROWN demanded the previous question and the demand being sustained by twen-six Senators--
The LIEUTENANT GOVERNOR stated the question to be, Shall the decision of the Chair stand as the judgment of the House?
Mr. HUGHES. I rise to a point of order and ask that the 17th rule be read.
The Secretary read as follows:
"17. No Senator shall vote on any question in the event of which the record shows he is immediately and particularly interested," etc.
The LIEUTENANT GOVERNOR. Idon't see anything in that rule by which the Senator is precluded from voting. Call the roll.
The Senate refused to sustain the decision of the chair by yeas 23, nays 25--as follows:
YEAS--Messrs. Andrews, Beardsley, Beeson, Burson, Caven. Collett, Elliott, Fosdick, Gray, Green, Hadley, Hamilton, Hess, Hooper, Hubbard, Martindale, Miller, Robinson, Scott, Steele, Taylor, Wage and Wood--23.
NAYS--Messrs. Alsop, Armstrong, Beggs, Bobo, Bradley, Brown, Carnahan, Case, Denbo, Dittemore Dougherty, Francisco, Fuller, Glessner, Gregg, Henderson, Hughes, Johnston, Keigwin, Lasselle, Morgan, Rosebrugh, Saringhausen, Stroud and Williams--25.
So the decision of the Chair was not sustained.
Mr. HENDERSON offered the following resolution.
RESOLVED, That the memorial of the citizens of the counties of Madison and Delaware, concerning the right of John W. Burson to a seat in this body, with accompanying papers, and the credential of said John W. Burson, be referred to a select committe of five, to be appointed by the Senate, with power to send for persons and papers.
Mr. MARTINDALE moved to lay the resolution on the table.
The yeas and nays being demanded and ordered--
Mr. HUGHES said: I give notice that I object to the Senator from Delaware [Mr. Burson] being called because by a decision of the Senate he is not a member of the body. I make the point of order to the chair.
The LIEUTENANT GOVERNOR. I do not understand that the Senator from Delaware is not a member of this body, and until the Senate shall so decide the chair will request the Secretary to call the roll of the Senate.
Mr. BROWN. I will ask the chair if it is the opinion of the Senate that the decision of the Chair was wrong does it not necessarily imply that there was an error in the swearing?
The LIEUTENANT GOVERNOR. It places the Chair in an uncomfortable position and dilemma and it is due to the Chair that the Senate determine the question without doubt whether they mean to say the Senator [Mr. Burson] has no right upon this floor. It might be inferred but is not a necessary inference, from the action of the Senate, and if that is the purpose of the Senate it will relieve the Chair for the Senate to say so.
Mr. HUGHES. I ask what construction the Chair puts upon the vote just taken? What is the effect of the vote of the Senate? I think the Chair will say that the decision of the Senate is that he [Mr. Burson] is still unsworn. I raise the point of order and I object to his name being called as a Senator, or his voting until he is sworn in by permission of the Senate.
Mr. GRAY. Mr. President: I understand the position of the Chair upon the question was that there being no Senate, and the Senator from Delaware [Mr. Burson] presenting his credentials, the Chair had no right to refuse his demand to be sworn in, and having been sworn in he is as much a Senator as any Senator on this floor. If the Senate desires to exclude the Senator from Delaware they should go at it in a square manner.
Now during the regular session two years ago a Republican Senator's seat was contested. I then, as I always expect to, under such circumstances, rose above anything like party preferences. I never have seen the time, and I hope to God I never may, when the question of a Senator's eligibility to a seat is brought up, that I will allow party to control my vote upon a question of that kind.
Now I do not see fit to make a speech upon this question of appeal because I consider that it don't amount to anything. Even if the Senate refused to sustain the decision of the Chair it still leaves the Senator from Delaware in his seat; and because the Senate refuses the Senator the right of voting, in my opinion it amounts to nothing. If the opposite side of the chamber think the Senator from Delaware has no right here and has no right to vote, they ought to expel him. If he has been improperly elected, the law plainly and clearly points out the manner in which that election shall be decided, and Senators ought to be willing to be governed by the law. Let a Committee be appointed and evidence taken, and if the matters set forth in that evidence show the protest to be true let the Senator be compelled to give up his seat and a new election held. I think that is right and proper; it is parliamentary law; it is the statute. Any other proceeding is simply revolutionary and con- page: 400[View Page 400] trary to all precedentall parliamantary law and the statute.
Mr. HUGHES. I merely rose to the point of order to see if the Chair will again overrule it, if so we can take another vote. I contend that if the Senate decided he [Mr. Burson] is irregularly sworn in, that he is not sworn at all. The case is in the possession of the Senate. I contend that he cannot vote until the Senate allow him to be sworn in.
The LIEUTENANT GOVERNOR. I understand the position of the Senator from Monroe [Mr. Hughes.] He rises to a point of order that the name of the Senator from Delaware [Mr. Burson] may not be called until further action of the Senate. The chair will overrule that point of order and the decision of that question as a matter of course will decide the question.
Mr. BROWN. I appeal from that decision.
The LIEUTENANT GOVERNOR. Yes sir.
Mr. MARTINDALE. I rise to a point of order. The motion before the Senator is my motion to lay the resolution of the Senator from Morgan [Mr. Henderson] on the table, and it seems to me this proceeding is irregular.
The LIEUTENANT GOVERNOR. On that question the Senator from Monroe [Mr. Hughes] raises the point of order that the name of the Senator from Madison [Mr. Burson] shall not be called, I think the proceeding is correct.
Mr. MARTINDALE. Suppose the appeal is sustained; we may proceed in that way all day. They can collaterally attack the Senator's vote on every opportunity. Gentlemen say let him be sworn in by permission of the Senate. He has been sworn in and he is as much a Senator as gentlemen here and has as much right to vote as any gentleman. I may move that a gentleman's vote be excluded, but I contend the motion cannot be sustained. We have a statute ruling contests and after a Sentor has been sworn in he can only be removed according to the rules of that statute. If this can be done by the majority, the majority may exclude any member of the minority of the Senate. The object is in this colateral way to have the Chair make a decision, from that appeal, and then hold again that the Senator is not entitled to vote a continual round of colateral motions that still does not deprive the Senator from Delaware of his vote. He has the right to vote unless he is expelled from the Senate, and if they refase him the right to vote they may refuse any other Senator on this floor.
Mr. BROWN. I will send up my appeal. It is poorly written.
The LIEUTENANT GONERNOR. Read it yourself.
Mr. BROWN read as follows:
We having objected to the name of John W. Burson being called, and the President of the Senate having decided that John W. Burson has been properly sworn in, and is entitled to a vote, we appeal from the decision of the President to the judgment of the Senate.
[Signed] BROWN, HUGHES.
Mr. BRADLEY. Mr. President: We are not deciding whether he [Mr, Borson] is entitled to a seat or not. I was not present but I understand the Chair did swear him in, that there was an appeal, that the appeal was sustained, and hence I conclude that Mr. Burson has not been sworn in at all. We can't expel him until he gets in. We can't expel him because he is not in. If the sustaining of that appeal meant anything it meant that the judgment of the Chair was wrong in swearing him in, hence he is not sworn in. The President of the Senate cannot decide upon the qualifications and elections of members. The Senate must do that. The Senate has decided that he has presented no proper qualifications, hence he has no right to vote until he gets in by a vote of the Senate.
Mr. HENDERSON demanded the previous question and the Senate seconded his demand.
The Senate refused again to sustain the decision of the Chair by yeas 23, nays 25the same vote as on page 399.
The LIEUTENANT GOVERNOR. The decision of the Chair is not sustained, and the question recurs on the motion to lay on the table the resolution of the Senator from Morgan [Mr. Henderson.]
The Senate refused to lay the resolution on the table by--yeas 21, nays 26.
The resolution was adopted by--yeas 26, nays 21.
The Senate then preceded to the election of Secretaries and Doorkeeper:--see page 20.
