Stanly, Edward, of North Carolina- his remarks on the civil and diplomatic 74 409 State Department, communications from the resolutions submitted by his remarks on the civil and diplomatic 431 326, 360, 361 resolations submitted by 305, 309, 356, 479 resolutions submitted by bill making appropriations for, and for Taliaferro, John, of Virginia, 160, 168, 239, 276 resolutions submitted by his remarks on the Army Appropriation his remarks on the Abolition question Tonnage duties on Spanish vessels, bill 369, 374, 416, 426, 428, 432, 447, 472 his remarks on the Treasury Note bill, 285 U. his resolutions to raise a select committee Van Buren, M. (See President U. States.) 332, 402 520 resolution by resolutions instructing the Secretary 181 313 Washington Manual Labor School and Male 342 413 70 his remarks on the proposition to reject White, John, of Kentucky, 435 his disclaimer of Whigery 197 545 Williams, Lewis, of North Carolina, 54.56, 60 his remarks against the West Point Mili- resolution submitted by on propositions connected with the adop MONDAY, DECEMBER 9, 1839. -WEEKLY. furnishing Senators with newspapers, not to exceed the price of three daily papers, was agreed to. SMALL NOTES IN THE DISTRICT. Mr. BENTON gave notice that, at the earliest day in which it would be in order to do so, he would ask leave to bring in a bill providing for the summary collection of the notes of the banks in the District of Columbia, under the denomination of twenty dollars. On motion, The Senate adjourned. HOUSE OF REPRESENTATIVES, This being the day set apart by the Constitution for the assembling of the two Houses of Congress, at 12 o'clock, m. the Clerk (Mr. GARLAND) called the House to order, and said: According to the usual practice, gentlemen, I am prepared, if it is the pleasure of the House, to proceed to call the names of members of Congress elected to the Twenty-sixth Congress, first session. The CLERK then called over the names of the following gentlemen, who appeared to be in their seats: MAINE. 1 District, Nathan Clifford, Mr. CLAYTON, Mr. ROANE, Mr. BROWN. Mr. CALHOUN. Mr. LUMPKIN. INDIANA. ILLINOIS. Mr. ALLEN presented the credentials of the Hon. BENJAMIN TAPPAN, elected by the Legislature of the State of Ohio a Senater from that State, to serve for six years from the 4th of March last. Mr. SMITH of Indiana presented the credentials of the Hon. ALBERTS. WHITE, elected by the Legislature of the State of Indiana a Senator from that State, to serve for six years, from the 4th of March last. Mr. CRITTENDEN presented the credentials of the Hon. THADDEUS BETTS, elected by the Legislature of the State of Connecticut, a Senator from that State, to serve for six years from the fourth of March last. The usual oath was then administered by the CHAIR to Messrs. TAPPAN, WHITE, and BETTS, whose credentials were just read; and to Messrs. BENTON, SOUTHARD, and WILLIAMS, whose credentials were presented at the last session. On motion of Mr. WALKER, Ordered, That the Secretary inform the House of Representatives that a quorum of the Senate is assembled, and that the Senate is ready to proceed to business. On motion of Mr. WRIGHT, Resolved, That a committee be appointed to join such committee as may be appointed on the part of the House of Representatives to wait on the President of the United States, and inform him that a quorum of the two Houses had assembled, and that Congress is ready to receive any communications he may make; whereupon, Messrs. WRIGHT and ALLEN were appointed the committee on the part of the Senate. On motion by Mr. KNIGHT, the usual order for 5 George Evans, Virgil D. Parris, Hugh J. Anderson, NEW HAMPSHIRE. Chosen by General Ticket. CONNECTICUT. Thomas W. Williams, Thomas B. Osborne, Truman Smith, 1 District, Hiland Hall, 2345 Horace Everett, John Smith, 5 Isaac Fletcher. 1 District, Abbot Lawrence, Leverett Saltonstall, Caleb Cushing, 3 455782201 6 William Parmenter, George N. Briggs, RHODE ISLAND. Chosen by General Ticket. Joseph L. Tillinghast, Robert B. Cranston. NEW YORK. Governeur Kemble, Richard P. Marvin, Charles F. Mitchell. NEW JERSEY. Joseph F. Randolph, When the CLERK arrived at this part of the roll, he stated that there was conflicting evidence with regard to the election of five members from this State, and asked if it was the pleasure of the House that he should pass over their names until the call of the balance of the roll was completed. Mr. MAXWELL wished to know what this evidence was, or whether the usual evidence was produced on both sides. The CLERK asked if it was the pleasure of the House that he should make a statement as to the usual course of proceeding? Several members called for the reading of the evidence. The CLERK then read the commission of Mr. Aycrigg, signed by Governor Pennington, and stated that there were five other commissions in his possession in the same style. Mr. MERCER then called for the reading of the law of New Jersey on this subject. Mr. CAVE JOHNSON desired that the evidence on the other side be read by the Clerk before the law was read to the House. Mr. MERCER stated that his object in having the law read at this stage of the proceeding was to show what could be received as evidence by this body. Mr. VANDERPOEL contended that all the facts should be laid before the House before the law was read. In the present case, there were confflicting returns and conflicting evidence, and it seemed to him that it would be more in order to read the evidence on both sides before the law was read, than to read the law at the present time. Mr. TILLINGHAST thought the most proper course would be for the Clerk to read the law now, so that the House might be enabled to decide what could be received as evidence in relation to this matter. When this body heard the law read, then it could decide whether the paper on the other side could be read as evidence. Mr. JENIFER wished to know of the Clerk, whether there were any other returns in his possession from New Jersey, signed by the Governor of that State, than the six which had been referred to? If there were not, why not proceed to call the roll in the usual manner? The CLERK here asked if it was the pleasure of the House that he should make a statement in relation to this matter. Mr. RIVES respectfully suggested the propriety of laying this motion on the table for the present, in order that the roll might be called through, to ascertain whether there was a quorum of members present. At present nothing could be done. He therefore hoped that the members present would acquiesce in a motion of this kind, in order that the House might immediately proceed with its organization; after which this question could be brought up and acted upon. Mr. MAXWELL contended that they ought not to adopt this suggestion unless some good reason could be given for passing over the State of New Jersey. There had been sent on to the Clerk certificates in the usual form, which have been read; and it seemed to him that it would be an extraordinary course to pass over the State of New Jersey, after these certificates had been produced. The CLERK then said that there were three propositions brought to the notice of the body--one to read the law, the other to read the testimony in the possession of the Clerk, and the third to pass over the State of New Jersey until it was ascertained whether there was a quorum in attendance in the House. Mr. WISE said, that before any motion was put to the body, he wished to know who was to vote on the motion to lay this question on the lable. Had the names of a quorum been called over? If not, who were entitled to vote on this question? If the question was put before the roll was called over, who was entitled to vote? Would the CLERK answer what was the usual course in a case of this kind? Had he (Mr. W.) a right to vote on this question? The CLERK said it was not for him to decide as to what course the Ilouse ought to pursue in relation to this matter. Mr. WISE. Has any member a right to move to lay this matter on the table? The CLERK said that would be a matter for the House to decide. Mr. MERCER thought that the motion of his colleague [Mr. RIVES] would raise the very difficulty which it was the desire of the gentleman to avoid. To avoid difficulty, however, he (Mr. M.) would consent that all the testimony should be read before the law was read; but then he desired to have the law read, in order that gentlemen might see what could be taken as evidence in the present case. Mr. RIVES did not desire that a vote should be taken upon the question of passing over the State of New Jersey, but hoped that it might be done by the general consent of the members present, in order that the CLERK might go on and ascertain whether there were a quorum of members in attendance. Whan this was done the House could immediately return to this question, and receive evidence on both sides; examine, discuss, and come to correct conclusions upon it. He hoped there would be a general disposition on the part of gentlemen to pursue this course. Mr. HOFFMAN said the proposition was to call the roll of the House. What roll of the House? Who are the members who are called upon to decide this question? Who but those holding the legal certificates? The Clerk had no right to call his name, unless he produced on his table a legal certificate. The gentlemen from New Jersey, whose names have been called, have produced the legal certificates from the Governor, and are as much entitled to their seats as any member of this House. If there were two rets of certificates from the Governor of New Jersey of equal force and effect, then there might be some reason for passing by that State; but as that was not the case, and as the gentlemen named had laid the only legal evidence of election before the House, it would be incompetent for the body to pass over the State of New Jersey, and proceed in calling the balance of the roll. Mr. HALSTEAD said he was one of the members from New Jersey, and he demanded, as a Representative of the sovereign State of New Jersey, that his name should be called. The only reason given by the CLERK for not calling his name was, that there was other evidence upon his table, and that there were other persons claiming the seats of the members from New Jersey. He would ask the CLERK, however, whether this other evidence was under the seal of the State of New Jersey, and produced according to the known and established usages of that State, from the formation of its Constitution to the present day. He maintained that he had prima facie evidence that he was entitled to a seat on that floor, because he had a commission from the Governor, under the broad seal of the State, and that the CLERK was bound to call his name. He and his colleagues had their commissions from the Governor of New Jersey, the proper efficer to give commissions; and he asked what authority had this House, or any House, to say that those certificates should be disregarded, and that the State of New Jersey should be passed by? There was no authority-there was no power under the Constitution to do so. The Constitution of the United States says that the times, places, and manner of holding elections, shall be prescribed by the Legislature of each State. Then, as this matter had been decided upon by the State authority, it is conclusive, until it is reversed by the decision of the House of Representatives, which is alone, under the Constitution, competent to decide on the qualifications of its members. Then his position was, that until this House was properly organized, and decided upon the question, the commission of the Governor must be taken as prima facie evidence of his right to a seat on that floor. He argued that he was entitled to his seat until a Speaker was chosen, the oaths were administered, and the question was judicially decided upon by the House; and until that was done, the House had no right to make a judicial decision which might forever destroy the sovereignty of the State of New Jersey. For this reason he could not consent to submit this question to the decision of gentlemen here. He could not tell who were entitled to vote upon it, nor could the CLERK undertake to decide who should vote on the question. Was he to vote upon the question, or was he to withdraw? The question, in his opinion, had already been decided by the only competent tribunal, and that decision must stand until reversed by the decision of the House, after it was properly organized. Mr. II. then read the law of New Jersey on the subject, quoted the case of the Mississippi election, the case of Spalding and Mead, and of Moore and Letcher, in support of the position which he had taken, and argued that the certificate of the Governor, whether given properly or not, was conclusive evidence of his right to a seat in the first instance, and that he was entitled to hold it until the House was organized and the matter was decided, upon the petition of the contesting members. Mr. TILLINGHAST said he understood that the gentleman from New Jersey (Mr. HALSTEAD) claimed the privilege of having his name called as a member of the 26th Congress; and he claims it because the name of the gentleman immediately before him had been called upon a certificate precisely similar to the one which he presented. You have called Mr. RANDOLPH upon a certificate being produced precisely similar to the one produced by Mr. HALSTEAD; and when that gentleman demands that his name shall be called upon the same kind of a certificate, why do you refuse to call it? You have called the name of Mr. RANDOLPH, and every gentleman agrees that you were right in doing so; then should not the gentleman who has last spoken [Mr. HALSTEAD] be entitled to the same privilege, when he has produced the evidence that he is entitled to his seat in precisely the same terms of the one produced by his colleague? He then referred to Jefferson's Manual to show that a member was entitled to certain privileges by virtue of his election. A member might be named upon a committee before he was sworn in, and his certificate of election gave him the privilege of being exempt from arrest. He also read an extract to the effect that every man who has an interest in the matter must at his peril take notice who are members of either House. There were two powers, he said, which the House might exercise in relation to this matter. The one was to pass upon the elections of Representatives, and the other was the power to judge of the validity of those elections. Congress had passed no law to regulate elections, but had left that matter to the States to regulate. In the pre sent case, an election had been held under the laws of the State of New Jersey, and the Governor had sent to this House the proper certificates of election, and it was incompetent for this House to decide upon the validity of this election until it was properly organized, and the usual oaths had been administered to the members. He contended that the certificate of the Governor was prin.a facie evidence of the right to a seat in the first place, and that the House could not decide upon the validity of the election, until it was properly organized. The certificate of election conferred upon a gentleman all the privileges of a member of the House in the first instance. As he had shown, it protected a gentleman from arrest; and if it protected him from arrest, certainly no man could refuse him any other of the privileges which it might confer upon him. These gentlemen had the certificate of the officer authorized by law to give a certificate, and it seemed to him that it must be the common sense of every man, that they were entitled to their seats until the House decided upon the matter in the usual and proper manner. Mr. FILLMORE rose for the purpose of asking gentlemen 10 consent, before debating this matter farther, at least to let all the facts, and the law regarding the case, be laid before them. Ile was not at all solicitous whether the credentials of the gentlemen from New Jersey which had not been read, or the law of that State on the subject of elections, should be read first. But gentlemea had gone on assuming that certain facts existed of which they had yet no evidence. He hoped, therefore, that the law and the facts would be presented before proceeding any farther. Mr. SLADE inquired of the CLERK what was the question before the House. Mr. GARLAND (the CLERK) replied that three propositions had been made. One was that the credentials of the other five members claiming seats from New Jersey should be read; another that the law of the State of New Jersey on the subject of elections be read; and the last, that he (the CLERK) should, passing over the members from New Jrsey, whose names had not been called, proceed to call in their order the names of the members from all the other States, respecting whose right to their sea's no difficulty had arisen. Mr. MERCER stated that he had withdrawn his motion to read the law of New Jersey. Mr. SLADE observed that it had been proposed by the gentleman from New York that the law should be read. Now he desired to know for what purpose the reading of this law was asked for? Was it for the purpose of having any action on it? It would seem to him that it would be idle for the CLERK to rise and read the laws of New Jersey, unless it be for the purpose of enabling him (Mr. S.) and others to decide this question. Now, an objection had been started that he for one could not get over. There was no body as yet compe. tent to decide any question. The CLERK had pr›• ceeded to read the names of the members from only a part of the States, amounting to seventy-seven members. Now, the CLERK had not the evidence before him that all these were legally elected. Indeed, he believed, that, as to four-fifths of the members, present, he had no other than newspaper evider ce or the evidence of general report, that they were elected. The CLERK, then, had, according to usage, made out a roll of the members of this Congress from the best evidence in his power, and had taken his seat at the table, and called over their names, according to States, until he came to the State of New Jersey, where he stopped, in consequence of a difficulty that presented itself, which he explained to the House. Now the CLERK, as it was appa rent to every one, might have proceeded to call over the names of the members in a different or der, and no one would have a right to complain. He might have called them over in alphabetical order, for there was nothing obligatory on him to call them over by States. The present rule was merely an arbitrary one, and did not always exist in that body. Well, sir, (continued Mr. S.) the CLERK has presented the name of one member from New Jersey, and reads it, nobody objecting, He then presented the names of five others, and their credentials having been called for, were read. Then, continued Mr. S. what condition are we placed in? We are proceeding to decide who are, and who are not, entitled to seats from the State of New Jersey, before all the members are called, before they are sworn in, and before a quorum is formed. Can we now decide this question without deciding as to the qualifications of the members from New Jersey, and was the body then in a state to make such a decision? Now this question was the very essence of the whole concern, and we cannot proceed one step, said Mr. S. without deciding it. Then, sir, said he, how can we decide it? Sir, he continued, we cannot decide it at all in the present stage of the proceedings. Some eighty or ninety members only had been called, respecting whose rights to their seats no objection had been made; but there were others in the same situation who had not been called, and who were equally entitled to decide as the first; and he therefore saw no way of getting out of the difficulty into which they had fallen, but by passing over the names of all those members whose right to seals was doubted, and calling the names of those about whom no doubt existed, and by this means form a quorum competent to do business. We might, said Mr. S. talk here till the thirty first day of December, and be no farther than we are now. But if we proceed in the way suggested, a quorum, when called, would be entitled to decide not only who have the prima facie evidence of membership, but who are finally entitled to hold the contested seats. He was for looking at this matter in a practical manner. Both sets of gentlemen from New Jersey might rise and claim the right to take their seats as members from that State; but, said Mr. S. we cannot now decide between them. He had a great respect for thosej gentlemen from New Jersey, who claimed their seats under the Governor's certificate, and perhaps they were entitled to their seats; but he did not know that they were. deed he did not pretend to know any thing about it, and, therefore, was not qualified to decide at present. He could have wished that the CLERK, the moment the question was raised, instead of submitting the decision of it to the House, had assumed upon himself the responsibility, and proceeded to call over the names of the members from the other States, about whom no difficulty existed, passing over those from the State of New Jersey. There was, in fact, no other way of organizing the House. But suppose the members were all sworn in and a quorum was formed, would they then have the right to decide; and if not, was the question to be settled by agreement among the contesting members? Why, in this way, he would undertake to say it would not be settled in six months. He came then to the conclusion, that the moment a quorum was formed, that quorum had the right of deciding who were entitled to seats, as well as the right of deciding who had the prima facie evidence of their right to them. He believed that a quorum possessed this right, and he founded his belief on that clause of the Constitution which bore on the subject. In I say, (continued Mr. S.) that when a quorum is formed, they are, pro hac vice, a House of Representatives to decide this question. Look at the Constitution, and you will there find that "the House of Representatives shall choose a Speaker." Then, if they may choose a Speaker, why may they not do any other act necessary for their organization? Under all the circumstances, then, he had come to the conclusion that, inasmuch as the question arose with respect to the contested seats of the New Jersey members, before a sufficient number of members had been called to constitute a quorum, there was no way of deciding it in the present stage of the proceedings; and, as far as his humble advice went, he would counsel the CLERK to take the responsibility on himself, and call over the names of the members from the other States, respecting whose right to their seats there was no doubt. The CLERK could not now put any ques tion to the House; and, therefore, he must go on until he can get a sufficient number of names to form a quorum to decide the question. Mr. MERCER rose, and addressed the House at some length; but, from the noise in the chamber, and his speaking rather in a lower tone than usual, was nearly inaudible throughout. He was understood, however, as contending that it was the duty of the CLERK to call over the names of the gentlemen from New Jersey who claimed to be members in virtue of the Governor's certificate; and that the CLERK, by declining to decide in their favor, had departed from the hitherto established usage of that body. The gentleman from Vermont had said that, as soon as a quorum was formed, this House was competent to decide the question of the qualifications of all the rest of its members. Now, (said Mr. M.) suppose we have called one hundred and twenty-two members, shall they have the power to decide upon the qualifications of all the rest? This was an absurdity the gentleman himself must be struck with. The question then before them, he presumed to be as clear as any that ever was presented before a legislative body. The gentleman from New Jersey, who had the Governor's certiscate of their eiection, were entiled to take and hold their seats, until it was proved that they were not duly elected. Congress had prescribed no rule by which the evidence as to membership should be produced. Congress had left that matter to the States, and the State of New Jersey had declared that the evidence to be adduced by her Representatives, should be the certificate of the Governor. The law in Virginia was different, and the other States had prescribed a different description of evidence; but here was produced the evidence of the membership of these five gentlemen, conformable to the laws of New. Jersey, and it was not competent for the CLERK, or the House either, in the present stage of its proceedings, to refuse it. It had been said that there were five other gentlemen here, claiming their seats as members from New Jersey, and the evidence that they adduced was the certificate of the Secretary of State of that State. Mr. M. then went on at length, that this evidence was informal, not recognised by the laws of New Jersey, and therefore of no authority in that body. The Governor of the State, he said, was the only organ of communication from the State, and the Secretary of State could not be officially known to them. Mr. M. after quoting several cases which he considered as precedents, resumed his seat. Mr. JOHNSON of Maryland, observed, that in contemplating the course pursued by the CLERK, it would at once spring up to the consideration of the House, the embarrassment that would ensue when they once departed from the established usage of that body since the foundation of the Government. The House must see the evils that would spring up, if they allowed the CLERK to exercise his discretion, and gratify his own feelings, by saying who shall not be considered members of that body. He called gentlemen's attention to the consequences that would ensue from a departure from long established usage, in order that they might pause, and deliberate whether the present advantages they expected to realise would not be more than counterbalanced by the evils that would be likely hereafter to grow out of them. He had taken this occasion to inquire into what had been the established usage of the body, and he found that it had been the immemorial custom for the CLERK to enrol, and call the names of those members who had the certificates of the Governors of their States of their being duly elected. He himself held the certificate of the Governor of the State of Maryland, authenticated by the broad seal of the State; and he would admit that no higher authority than that could be presented in that House? He felt bound, as one of the Representatives whose right to hold a seat was thus supported, to deny the authority of the CLERK to proceed farther, while he withheld the names of the New Jersey members, and would recognise him in so doing. He did because the Constitution declared that each House was to judge of the qualifications of its members, and therefore no Clerk, or any If other officer, has any discretion in the matter. the CLERK be permitted to say who he will name as returned as members, or who he will not, he may, in that way, have a majority of members qualified friendly to him, and, in short, exercise all the powers of the House with regard to the qualifi cations of members; and yet a portion of those not SO who have as much right to their seats as those he has thought proper to call, may find themselves excluded from their seats, and their States from a representation on that floor. Mr. J. denied the power of the CLERK to act, and, as one, he would not recognise his power. After citing various cases of contested elections, which he considered as precedents, Mr. J. went on to contend that the CLERK was hound, by the established usage, to consider the certificates of the Governor of New Jersey as prima facie evidence of the elections, and to enrol and call over the names of the gentlemen certified in them to be returned as members from that State. Mr. J. concluded by expressing the hope that the additional testimony, and the law of the State of New Jersey on the subject of elections, might be read. Mr. BIDDLE observed that the question was whether this was the appropriate stage for this irregular discusion. Was this the proper time, or, said he, shall we wait for some other time? It is proposed, said Mr. B. that the CLERK shall omit the members from New Jersey, and go on to call the members from the other States; and whenever there is a dispute, or alleged dispute, as to the right of membership, then the CLERK shall pass over the names disputed, and select those who are beyond dispute. It was proposed, in short, that the CLERK should be the judge. Now there appeared to be some degree of plausibility in this proposition. The course thus proposed seemed to be decorous, and free from embarrassment. But, said Mr. B. do you not see that an enormous abuse of power might arise from the precedent thus to be established for the next Congress? If that course be adopted now, it will be adopted forever hereafter, and whenever a Clerk shall undertake to say that the seats of gentlemen are contested. Do you not see that at the opening of every succeeding Congress, the CLERK may thus dispute the seats of his adversaries? And if the result is to be, that the judges will be narrowed down to those whose seats are not disputed, you will not have a case of an undisputed seat. It will then be assumed that the being called by the CLERK İS worth something, and it will be worth striking for. With that argument before you, do you not see, continued Mr. B. the monstrous abuses that will grow up if this precedent should now be sel? What was the present position of that body? What was the general usage? I take it, said Mr. B. that the CLERK is but the mouthpiece of the body-a body not yet organized, it was true, but a body competent for the despatch of busines-and has no right to act but in accordance with its established usages. Does not your language [addressing the CLERK] admit that much? You look round you, and ask us to instruct you in your duty. You have decided that the credentials of the members of Massachusetts are in due form, and you have invested them with the badge of office. Why did you do this? You exercised some power here, for you declared that those members were entitled to their seats. You examined their credentials, and you examined the law, as it was your duty to do, and you decided that they were entitled to their seats. Let us come to the modus operandi. I say that, where a case comes up precisely similar to the one you have acted upon, you are bound to act upon it, and decide it in the same manner. You are bound to conform to the law and the usage as much in the one case as in the other. It is not only your duty, imposed upon you by this body, but having discharged that duty in the case of Massachusetts, you are bound to do it in the case of New Jersey. It seems to be the plain nature of your duty from what you have already done. Do these credentials come up to the Constitution of the United States and the laws of the State of New Jersey? If they do not, and your judgment is at fault, then your plain duty is to refer your doubts to the House. But if they do come up to the Constitution and the law, as it is contended they do, then you have no right to set them aside, but you are bound to call them, as you have done in the case of the State of Massachusetts. If you make an erroneous decision, why then there is an appeal to the House; but if you ask its decision in small matters, you must ask it in |