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great ones. But, (continued Mr. B.) I say that from the nature of things, you must exercise a sound discretion; the onus is thrown on your shoulders and you are bound to act; but when, from doubt or uncertainty, you are unable to decide, you must ask the decision of the House.

Mr. SLADE said that the gentleman from Virginia [Mr. MERCER] had stated a portion of his argument as an absurdity. Now, said Mr. S. I did not mean to be understood as asserting that as soon as a quorum is formed it is competent to decide upon the qualifications of all who might happen to come after them. This would indeed

be an absurdity that he never contemplated. But what he meant was that, in virtue of the power of the Clerk of the House, derived from iminemoria! usage, he would, when a quorum was formed, have a right to put it to that quorum to decide a question that might be raised as to the prima facie evidence of a member to the seat he claimed-a deesion which he had no right to make himself. Nobody, however, would pretend to say that a quorum of one hundred and twenty-two members, who happened to be the first called, world have the right to decide on the qualifications of all those coming after them. The CLERK would be bound to go through the whole twenty-six States, stopping only at those where the seats were contested, and where the CLERK was in doubt with respect to the evidence of election. The CLERK would be bound, by the spirit of the usage as well as by his feelings as a man of honor, to go through the whole roll of those whom he had ascertained, by whatever evidence was before him, were without dispute entitled to their seats. After he had gone through the roll of those about whom there was no dispute, and came to those whose rights to seats were disputed, then, if he took it upon himself to decide who was entitled, or left it to the House to decide that question, there would be a competent tribunal either to entertain an appeal from his decision, or to decide the question itself. Now, he he would leave it to the House to say what should the CLERK do. Would gentlemen not see that if they imposed a burden on him of deciding, they imposed a burden on him too heavy for him to bear; and that if they compelled him to make the decision, he might make it in a way that would involve greater evils than they sought to avoid. Something must be done to organize the House, and who was to do it? The CLERK must proceed according to immemorial usage--

Mr. MERCER. How was the first Congress organized?

Mr. SLADE. Some gentleman, I presume, who had the most gray hairs, was called upon by gene. ral consent to preside as moderator, and so acted till the body was organized. Mr. S. dit not say but that the House could proceed in that manner now, and that it could put the CLERK out of his seat, and call upon the gentleman from Virginia himself to act as moderator. But the CLERK had not abused his trust. He had not been accused of exercising too much power; on the contrary, it was complained of him that he declined exercising any power at all. Mr. S. did not mean to be understood as saying that any man might come here, and, by saying that he contested the seats of members regularly returned, make it the duty of the CLERK to omit calling the name of such member. His idea was, that, in order to justify the CLERK in omitting to call the name of a returned member, and referring the matter to the House, there must be some color of a claim, as the lawyers say, to contest the right to the seat. If a man comes here with the spurious certificate signed by a Governor of a State, and another inan already has a certificate from the same Governor, then on that Governor let that responsibility rest. So, if two men bring certificates, one from a Governor and the other from a Secretary of State, then upon the Governor or the Secretary who has certified falsely let the responsibility rest. But suppose, upon the formation of a quorum, some member should get up and say, I move that A B is entitled to a seat here. Would he not do it on his responsibility? Suppose that one hundred and twenty-two members, after forming a quorum should decide that A B is entitled to a seat-would they

not do it in their responsibility? There might be abuse of power, but an abuse of power was no authority for its non-existence. The gentleman from New Jersey said that when the CLERK came to a which he was unable to decide, he must leave it to the House; but the question was, who were the House. Suppose the yeas and nays were to be ordered, who were in that event to vole? It was a difficulty that they could not get out of without proceeding in the manner he had proposed. He for one was prepared to do his duty, and leave the consequences to take their course." He could not look forward to consequences. If the result of all this should be, that these five gentlemen from New Jersey should be prevented from taking their seats, and acting here, great injustice might be done them; but if that injustice should be done in the exercise of a correct rule of action, we must leave it to the community to say whether we have acted correctly or not.

Mr. SERGEANT cbserved, that as he understood the question presented, the doubts and di hiculties that had arisen, seemed to him to have been in consequence of the CLERK having departed from the plain usage that had prevailed in that body for many years past. It was understood from the CLERK, that there was a contest respect. ing the rights of certain gentlemen to their seats, as Representatives from New Jersey, and the worthy gentleman from Vermont on his right, [Mr. SLADE] thought that if there was but a color of a claim, it was suficient to authorize the CLERK to pass over the State of New Jersey in calling the roll. According to this doctrine, a gentleman might be kept out of his seat, no matter how clear the evidence of his right to it was, no matter how conformable his credentials might be to the Constitution and the laws of the State he belongs to, provided somebody has a color of a claim to contest his right. The gentleman says the CLERK is not competent to decide. To decide upon what? The color of a claim? No matter how slight the evidence might be, yet, if the color of a claim was presented, the CLERK was to suffer a sovereign S.ate to be deprived of her representation on this floor, and the certificate of her Executive, under the broad seal of the State, was to be set at naught. Mr. S. did not so understand the duty of the CLERK. He understood that officer's duty to be confined to the verification of the credentials in point of form and accuracy, and nothing more. Having ascertained that the credentials are accurate, and possessing the requisite formalities, he is bound to enrol the names of the members presenting them, and to call them over in their order. In this case, the CLERK, to avoid having the appearance of making a decision, keeps from their seats five gentlemen, who have the prima facie evidence of being entitled to them, (and he did not know for how long they might be kept out,) and who might appear hereafter, upon proper investigation, to be the best entitled, because there appeared the color of a claim to contest them. In taking this course, it appeared to him that the CLERK had mistaken his duty. In order to come at a conclusion with regard to the genuineness and requisite formality of the claims presented, the CLERK was bound to look at the laws of the States from which they were presented; and if they conformed to those laws, the CLERK had no authority to look further. How stood the case before them? Here were five gentlemen, having the certificates of the Governor of New Jersey, under the great seal of the State, that they are duly elected as Representatives from that State. Now, had any body any doubt as to the genuineness of these certificates? Had the CLERK any doubts respecting them? Were they not in conformity with the law of the State of New Jersey on that subject? He knew what was in that law without any reading it at all; and he averred that, word for word, letter for letter, and comma for comma, the certificates of the Governor presented by these gentlemen, conformed to it. Was there any thing else alleged against it. Was there any doubt about the genuineness of these certificates? Did the CLERK himself entertain any doubts? He did not say so. He had said that there was a

contest respecting the seats of the members from the State of New Jersey, and that he could not undertake to decide it, when these gentlemen were in the House with these commissions, according to the law of New Jersey; and they were, therefore, in his opinion, entitled to hold their seats, according to the Constitution of the United States, until they are displaced by the House. He thought a due respect to the Executive of one of the sovereign States of this Union required that those who would impeach these certificates, should not come here with a fancied claim, but should show that they were not in accordance with the laws of the State. Mr. S. said he understood from the CLERK, that he had a cerufi. cate from the Secretary of State of the State of New Jersey, that five other gentlemen were-elected as Representatives from that State; and that this certificate was also accompanied by the great seal of the State. But it was remarkable that, in looking at the law of the State of New Jersey relative to elections, there was not a single word about the Secretary of State in it. The Secretary of State had not even the custody of the papers relative to elections, but they were confided exclusively to the Governor and Council. Mr. S. after contending that the certificate of the Governor was the only authentic evidence that could properly be received from New Jersey, went on to say that this was the first time that the certificate of the Governor of a State had ever been questioned in that body, and quoted several cases which he considered as precedents.

Messrs. RANDOLPH and SLADE made some observations, which were not heard distinctly enough to report.

Mr. BYNUM observed. that certain assumptions and statements had been made for facts which did not exist, and which were not facts; and he, therefore, to prevent any erroneous impressions from arising from such statements, would endeavor to set gentlemen right in a few particulars. He knew that it was the practice with many in that House to assume for fact that which they wished to be so, and the honorable gentleman from Pennsylvania, [Mr. SERGEANT,] of whom this practice was characteristic, had assumed it as a fact that this was the first time that the seats of any meinbers had been contested who were elected according to the Constitution of the United States and the laws of their State. If this was the fact, he presumed that this was the first time that the gentleman presumed to say that he and those who acted with him were alone, of all the members of the House, competent to judge what was the Constitution and the laws on this subject. Why, sir, said Mr. B. if the law and the Constitution is so clear, I presume that no one would object to these gentlemen taking their seats. But, sir, that is the issue. We doubt whether the law and the Constitution is so clearly in their favor. We undertake to say that they are not elected according to the Constitution and the laws of New Jersey. The gentleman from Pennsylvania says that they are; but there are other gentlemen in this body who have the right to exercise their judgment with regard to the Constitution and the laws of New Jersey, as well as the gentleman from Pennsylvania and his friends. The gentleman seemed to think that the passing over the names of those gentlemen who have the certificate of the Governor of New Jersey would be disrespectful to that high functionary. Ay, sir, are there not others whose opinions are to be respected as well as that of the Governor? I say that the sovereign people of New Jersey are entitled to some respect, and that the Representatives that they have sent here are as much entitled to credence as those commissioned by the Governor. We are not the representatives of the Governor, but of the sovereign people of New Jersey. There is a contest here between the Governor on one side, and the people of New Jersey on the other; and the people call on us to do them justice. They contend that the Governor has committed an outrage upon their rights; and shall we not listen to them because it may be considered disrespectful to the Governor if we do so? These are important facts, and must be decided on before we can go into a decision as to which set of gentlemen are entitled to

heir seats as Representatives from New Jersey. Gentlemen, said Mr. B. deceive themselves, ac. cording to my mind. If their object is to get these names called before organizing the House, what is to prevent us from having the names of the five other gentlemen called? But, say gentlemen, the Governor of New Jersey has given his certificates, and those only who hold them are entitled to their seats. To this we answer, have not the people of New Jersey elected their Representatives, and sent sufficient evidence of it here; and have they not a right to be heard? These are solemn questions, Mr. CLERK, and deserve to be seriously weighed and considered,to arrive at a correct understanding of this subject. Mr. B. said he deemed the whole of the propositions made by the gentlemen on the other side to be utterly impracticable. We cannot, said he, act at all in this matter until we adopt the proposition of my friend from Virginia. I know that before we can decide understandingly upon this matter, we must take into consideration the laws of the State of New Jersey bearing upon it; but we cannot do it now, because it is not the proper time. But here is the sacred chart (holding up the Constitution) by which we are to direct our course, and by that, at a proper time, we shall make our decision. We must then take up the law of New Jersey; but when we do so, we must must not forget to take into consideration the facts on which the election took place; and as, according to the Constitution, each House is to be the judge of the qualification of its members, we must judge of the qualifications of these gentlemen and their competitors with all the facts, as well as the law, before us. If, then, it should be found that the Governor of New Jersey had proceeded without authority of law-if it should be found that he had dared to usurp the authority of this House, there his certificate should be treated with the contempt that it deserved. But Mr. B. doubted whether the debate on the present occasion had not been thrown out as a mere catch to control public opinion. If he was not mistaken, when the proper time arrived, and when the facts should be brough out, he doubted very ma ch whether the Constitution and the laws of New Jersey would bear out the Governor in his highhanded proceedings. But the gentleman from Pennsylvania contended that now was the time to make this investigation. How was it to be done? appeared to him, Mr. B. said, that they could not proceed one step in the matter, until the House was organized. To proceed farther, was clearly impracticable. The gentleman from Pennsylvania reflected upon the conduct of the CLERK, and it appeared to him with very little justice. sir, (addressing the CLERK) you would be unworthy the place you hold, if you had acted otherwise? What had the CLERK done, he would ask gentleman? Why, upon a question of doubt and difficulty, he declines the responsibility of deciding, and refers the matter to the House. Mr. B. hoped that a Clerk of that House never might be permitted to decide upon questions so vitally affecting the interests of the people of this Union, as this did. Mr. B. hal no doubt that if the CLERK should go on calling over the names of gentlemen whose seats were contested in the manner the gentleman from Pennsylva. nia contended for, that the moment the names of one party were called, a motion would be made to call the naines of the other party; and if one of them was permitted to vote, there was no power on earth that could exclude the other. He would ask gentlemen, then, on the other side, what could they gain by pressing this question? What (said he) have we as yet done towards organizing the House? Nothing. He therefore thought that the course pointed out by the gentleman from Vermont, was the best that they could pursue-that is, said he, proceed to organize the House, and decide on the evidence of these gentlemen to their seats afterwards.

Why,

Mr. SLADE explained, that he only meant a partial organization of the House, so as to form a quorum competent to decide as to the evidence of membership.

Mr. BYNUM continued his remarks at some length, taking various precedents bearing on the

case, particularly that of Moore and Letcher, a case exactly in point, in which neither party was permitted to take a seat, until a final decision was made by the House, after a thorough investigation of the merits of the case.

Mr. GALBRAITH said he could not understand the course of argument of some gentlemen here. They charge the CLERK with usurpation of power in the course he has chosen to take in announcing the conflicting claims to the five seats from New Jersey, and urge upon us the danger of a Clerk undertaking to determine who are entitled to seats; that he has no right, no power, to decide; and yet, with the same breath, they condemn him because he has declined giving any decision, expressing his doubts and inability to determine. It had been said by the CLERK that he could not decide on the conflicting claims. It was therefore to be taken that such was the case. Who was to be the judge of that but the CLERK himself? Can any other gentleman judge better than he can? Suppose the CLERK had undertaken to decide in favor of the other claimants, than those from whom the objection comes; then, indeed, might there have been some ground for the charge of usurpation of power; but in avoiding to decide, and proceeding to call the list of members whose claims were undisputed, until there should be an undoubted quo rum competent to decide, he could not see the shadow of foundation for the charge of usurpation.

He said it had been spoken of as an extraordinary course, a disrespect offered to the State of New Jersey, that the members from that State should be passed over until the list was gone through. He would ask what right, as a matter of right, New Jersey had to be called before Pennsylvania? It was a mere order of calling, based upon the geographical position of the several States; which had, it was true, been generally adopted by the House, as a matter of convenience, not predi. cated either upon the age, size, or population of the States, but commencing in the East, and going though to the extreme West; and had been sometimes reversed in calling for petitions, resolutions, &c. No rights of New Jersey were, therefore, compromitted or injured by the proposed course of calling the list of undisputed members, when there would be a competent number to decide upon something. At present it was useless to discnssthere was no body competent to decide upon any question. Is was the only practicable course that could be pursued. It did not even involve the question of organizing prior to determining the right to seat of the New Jersey claimants. When there should be a sufficient number called, of unquestioned members, to form a quorum competent to decide, as there undoubtedly would be when the list was gone through, then it would be determined whether we should organize first, and decide upon those claims afterwards, or decide upon the prima facie right to the seats before organizing, and determine the permanent right after the House should be regularly organized.

While he was up, he felt called upon to say a word or two in relation to himself, as connected with this New Jersey affair. He was not in the habit of replying to newspaper articles, but a paragraph had found its way into the columns of a number of respectable journals in the country, and one in this city, (the National Intelligencer,) taken from a paper published in his district, calculated to make an unfavorable impression upon the minds of his fellow members, many of whom were strangers to him, and he felt it as a duty to himself to remove any such impression which might have been made. He was reported in that paragraph to have declared, at a public meeting, that if the returned members from New Jersey should attempt to take their seats, there would be a mob, etc. was true there was a public meeting, and it was also true that, by invitation, he had submitted some remarks at that meeting, the purport of which, he presumed, it was not important he should repeat here. It was sufficient for him to say that the article alluded to was a total misrepresentation of his views, and a gross perversion of the language used by him on that occasion.

It

Mr. EVERETT contended that according to Parliamentary usage, and the established custom of

that body, it was the duty of the CLERK to enrol the names of those gentlemen from New Jersey who claimed their seats in virtue of the Governor's cerHe tificate, and to call them over in their order. contended that the CLERK had no right to depart in this instance from the established custom, because there was a contest regarding the seats claimed by these gentleman, and that he was as much bound to call over their names as to call over the name of the gentleman from the same State, whose right to his seat was not not contested.

Mr. CRAIG addressed the House at some length. From the confusion prevailing at the time in the House, the commencement of this gentleman's remarks was not heard. He was understood, however, as sustaining the course pursued by the CLERK in declining to take the responsibility of deciding who were entitled to the seats from New Jersey. He denied that the CLERK was bound by the certificate of the Governor of New Jersey, as contended for by the gentlemen from Pennsylvania, [Messrs. BIDDLE and SERGEANT] and thought the evidence of the popular vote was entitled to as much weight as the certificate. The prima facie evidence had been heretofore taken under the rule of convenience, but he would ask if, in a case of palpable fraud, gentlemen would abide by this old rule of prima facie evidence, in defiance of truth and justice, and the strongest documentary testimony. After all, all they were aiming at was to ascertain whether this or that five of the New Jersey genilemen were entitled to the seats; and, therefore, if upon examination it should be found that those who did not come with the Governor's certificate bad the majority of votes, would they put in this prima facie blind to deprive them of their seats? Mr. C. agreed with the gentleman from Vermout, [Mr. SLADE,] that the only proper course to be taken now, would be to pass by the names of the members, whose seats were contested, and call over all the other members so as to form a quorum. But, said Mr. C. take the contrary course, and you will be driven to the necessity of saying that the Governor's certificate, with the scal of the State of New Jersey, elects Representatives here. It might be true that this certifica'e was evidence, so far as it went; but suppose it states what is not true-and it is made apparent to us that it contains a false statement-. what, then, are we to do? Are we to shut out the truth, because we have the certificate of a Governor, and the seal of a State? He knew of no law or rule of this House requiring them to receive only that particular speci s of evidence, to the exclusion of all other. It was, therefore, his opinion, that they ought to exclude both sets of members claiming to be Representatives from the State of New Jersey, until the House was organized, when it would be competent for it to settle every doubtful question.

Mr. E. concluded by expressing the opinion that the best way of getting over the difficulty would be to adopt the course proposed by the gentlemen from Virginia and Vermont; and that was, to pass over the State of New Jersey, and call the names of all the other members whose seats were not contested.

Mr. MAXWELL addressed the House at some length in support of his right to take a seat, arguing that the evidence he presented was as strong as that presented by any member, and that he had as much right to take his seat as any of those whose names had been already called. The certificate of the Governor of New Jersey, with the broad seal of the State, was a document that the CLERK, in his opinion, had no right to pass by; and he considered that it was the CLERK's duty to call his name in its order.

Mr. WHITE of Kentucky addressed the House at some length in support of the claims of the gentlemen who presented themselves with the Governor's certificate, taking the same ground as that taken by Messrs. BIDDLE and SERGEANT; after which,

Mr. BYNUM, having obtained the floor, gave way to

Mr. MERCER, on whose motion, and by gene. ral consent,

The House adjourned.

TO THE EDITOR OF THE GLOBE.

I observe in the reference you made in your paper of last evening to my remarks yesterday upon the New Jersey case, the following: "He (Mr. SLADE) approved of the course taken by the CLERK in declining to take the responsibility on himself of deciding who were entitled to the seats from New Jersey, and thought that any other course would have been a usurpation of unauthorized authority on the part of that officer."

Your reporter mistook me. I maintained that it was competent for the CLERK to decide that he would not place the names of Mr. AYCRIGG and others, claiming seats, on the roll, if in his opinion there was such conflict between their returns and those of their competitors, as to render it doubtful who had the proper legal returns, or certificates of election. It was his power to do as he had done that I vindicated, and not the propriety of its exercise. Upon that question I gave no opinion, because the grounds on which he had decided to exercise the power in this case, were not before the House, and, as I thought, and still think, could not properly be until it should, appear that there was a quorum present to form a House of Representatives, competent to hear, and act on them. If the papers presented to the CLE K as credentials, by the gentlemen contesting the right of Messrs. AYCRIGG and others to seats, were such as I have been informed they were, it seems to me the CLERK erred in deciding that they impaired, in any degree, the title of the latter gentlemen to take their seats. But this was a question with which, as I viewed the matter, we had, at that stage of the proceedings, nothing to do. The CLERK had exercised his power of deciding, in the first instance, upon the "returns," and his decision was conclusive until overruled by the House; which could not be done until there should appear to be a quorum of the members elect of the Twenty-sixth Congress present, to form a House.

I need hardly add, after the above explanation, that did not say that "any other course (than that of declining to take the responsibility of deciding who were entitled to seats) would have been a usurpation on the part of the CLERK. Respectfully yours,

December 3, 1839.

WILLIAM SLADE.

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HOUSE OF REPRESENTATIVES,
TUESDAY, Dec. 3, 1839.

At 12 o'clock, m. Mr. HUGH A. GARLAND (Clerk of the former House) called the House to order, and stated that the gentleman from North Carolina [Mr. BYNUM] had possession of the floor at the time of the adjournment oa yesterday, and, with the permission of that gentleman, he would beg leave to make a respectful appeal to the House. No man, said Mr. G. feels more than I do the delicacy and difficulty of his position. From the beginning I have felt a high responsibility resting upon me, and before God and my country, I assure you I have had but one motive, and that was to do my duty justly and impartially, without regard to personal or party considerations. I have been placed in a novel and unprecedented situation. All the cases of contested elections heretofore presented, have been presented to the House of Representatives itself, upon the petitions of the claiming members, and the CLERK had nothing to do with them. The only variation from that rule was in the case of Messrs. Moore and Letcher, of Kentucky. Both those gentlemen presented themselves before the House, and claimed the right to have

seats, and the House was compelled to take the matter into consideration; and the House might, perhaps, have remained unorganized for a fortnight, if those two gentlemen had not voluntarily withdrawn their case until after the organization. The present case, however, was one entirely different from the one referred to. The difficulty in the present case was presented to the CLERK himself. Conflicting evidence was brought into his office, and what was he to do? What was I to do in this case? Was I to take upon myself the powers of the House of Representatives-the powers which the Constitution has given to it to decide on the qualifications of its members? I assure gentlemen that I have felt the delicacy of my situation, and I have labored assiduously to be enabled to come to correct conclusions in relation to this question. I, therefore, now respectfully appeal to this body, to permit me to make a statement which I have prepared in justification of my course on the present occasion; and I think the request is not unprecedented, when the conduct of a public officer has been brought in question, as mine has been on the present occasion.

Mr. JENIFER asked if the CLERK designed to review his decision of yesterday, and call the members from New Jersey, so that the House might go on without his interference.

The CLERK stated that he had taken the course on yesterday, which he felt it to be his duty to take, and he could not depart from it until he was satisfied that his course was then wrong. All he now asked, was, to make a respectful appeal to the House, and lay before gentlemen the grounds and motives which induced him to take the course hc did.

Mr. JENIFER contended that it was the duty of the CLERK to call the names of the five members from New Jersey returned by the Governor, and that he had no right to interrupt the organization of the House by refusing to call them, when no objection had been made to having their names called.

Mr. SLADE here rose and made a correction of an error in the report of his remarks of yesterday in one of the papers of the city, which was not heard at the Reporter's desk.

Mr. ATHERTON hoped that the CLERK might be permitted to make the statement which he desired to make to the House, without objection being made on the part of any member-

Cries of "Proceed! proceed!"

Mr. TALIAFERRO rose, and inquired of the CLERK if he had in his possession more than one return from the State of New Jersey, such as the law of New Jersey prescribed?

Cries of "Proceed! proceed!" "No, no."

Mr. STANDEFER objected to the CLERK's making any statement. Let some of his friends on the floor make a statement, if a statement was necessary.

Mr. WISE thought it due to the CLERK-in the situation which usage, if not law, and usage in this case he regarded as law, had placed him-to be permitted to make a statement. He was very desirous to hear a statement, and doubtless other gentlemen were desirous to hear a statement, of the reasons why the CLERK had not discharged the duty which law and usage had imposed upon him. He hoped, therefore, that all gentlemen would acquiesce in hearing this statement, and perhaps their action might be influenced by it. It was only persuasive, and not authoritative; and certainly he thought gentlemen ought to agree to hear any evidence on the subject which the CLERK might have to present. Some called for the reading of the law on yesterday, some for the reading of the certificates, and some desired that the names of the five members from New Jersey might be called; and as he made no statement on yesterday why the names were not placed on the roll and called, he thought this statement ought now to be heard by universal consent.

When Mr. W. resumed his seat, there were cries to the CLERK to "Go on."

Mr. WHITE of Kentucky said, for one, he entered his solemn protest against the reading of this prepared document by the CLERK. He asked if the Representatives of the people were to have

their business interrupted by their CLERK, and to sit there to hear a prepared statement read from the Clerk's desk, calculated, if not drawn up, for the purpose of making a false impression in the country; and he thought, when his friend from Virginia [Mr. WISE] agreed to hear this statement read, he had not reflected sufficiently on the subject. In his view, it was no matter who rose and objected here-it was no matter what the newspapers of the country had published-it was no matter what affidavits the loafers of New Jersey had sent in to arrest the laws of New Jersey. It was the duty of the CLERK to take the evidence produced, in conformity to the laws of New Jersey, and it was not his duty to rise and make statements here in relation to the matter. Suppose the CLERK did go on and make this statement, woull we go on and discuss this matter coolly where we left off? No, sir. The moment that he was done, new points would be raised, and we would be involved in greater difficulties than we are at present. We would have difficulty enough in deciding the matter, if we went on discussing this matter now, without permitting new points to be raised by the CLERK; and he protested against hearing any statement from him.

Mr. WISE was sorry to be thrust into a debate with his own friends; but he thought if the gentle. man from Kentucky would listen to what he had to say, he could convince him that it was proper, legal, formal, and orderly, that the CLERK should make this statement. It was true that the CLERK was not technically an officer of the House; but, by the law of usage and necessity, he was always permitted to hold the place which he now held. He was the quondam Clerk of the last Congress, and presented himself here first to render to his successor in office the records of the House; secondly, the CLERK was here by the law of usage, and the ordinance of 1785, imposed the daty upon the CLERK of the last Congress to keep a roll of members of Congress, and to call over that roll at their meeting.

Mr. W. here read the ordinance of 1785; and also a resolution of 1791, to show that the CLERK was sworn to perform this duty. He contended that by this resolution, if the CLERK was sworn to perform this duty, and that, it he did not perform it, he whould be disre. garding his duty. He was under a moral obligation to perform it; but the members of the House were not under this moral obligation, inasmuch as no oath had been yet administered to them. The CLERK was bound by an oath to perform his duty, but the members of this House were not under this sacred obligation. The CLERK was bound by his oath to discharge his duty, but the members of the House were presumed to be partisans. They were presumed to come from the heated mass of political fermentation. We come here (said Mr. W.) with all our partisan feeling-the blind and devoted slaves of party-but the CLERK was presumed to be above this political fanaticism. The CLERK was bound by his oath to be free from political influences,and, by the resolution referred to, to be in office until he was superseded by his successor. Mr. W. read the ordinance of 1785, prescribing the duties of the Secretary of Congress; and said if he had been on intimate terms with the CLERK, he would have gone to his room and appealed to him, as an officer by usage, if not law, as a Virginia gentleman, bound by a solemn oath to perform a certain duty, and as a Christian, who needs no oath to bind him to discharge the duty which this resolution and the law of usage imposed upon him. The CLERK had stated to the House on yesterday that he was not a judge, and verily he (Mr. W.) agreed that he was not a judge, and according to his view of the Constitution, no man here was a judge of his prima facie right to a seat on that floor. Neither the CLERK, nor any other man now present, could judge of his credentials. Under the Constitution he considered that, at the present stage of proceedings, they were in transitu between the House of Representatives and their constituents, and no one had the right to decide upon his credentials.

Mr. W. then read the clause from the Constitution which gave to the States the power at present

to

to regulate elections, cited the mode by which the Representatives from Virginia obtained their certificates of election, and contended that when that certificate was obtained, as it was there, from the sheriffs of their district, there was no power to prevent them from taking their seats in this House in the first instance. When a gentleman here presented the evidence that he was entitled to his seat, it was not the duty of the CLERK to decide judicially upon it. He was not a judicial officer, but a mere ministerial officer. His duty was merely to receive the evidence presented to him, and enter it. Had the CLERK the evidence in this case? If so, why did he not enter the names of the five New Jersey members upon the roll. The CLERK had said that he is not the person to decide the question who are entitled to seats, and has referred the matter to us; but we have no more right to decide it at present than he has; and the question will necessarily come back to the CLERK at last to be decided; and this was the view which he desired to press upon the CLERK, and make him, as a man situated above party, as a sworn officer, and as a Christian, do that directly which he would be forced to do indirectly. The CLERK has said he was not to take upon himself to decide on this question, but refers it to the House, as if we were a convention of ministers, who had the power decide on each other's credentials; but when you put the question as to whether the credentials of the five gentlemen from New Jersey shall be received, who shall vote upon it, Mr. AYCRIGG and his political friends, or Mr. DICKERSON and his political friends? In refusing to decide on this question, the CLERK does decide. The failure to enter the names of the five members from New Jersey has all the effect of a judgment-the potential effect of a judgment. It will be impossible for the House to decide upon this question, and it will devolve upon the CLERK or some one out of it to decide. We come back, then, to you, Mr. CLERK, and you may as well exercise that judgment at once, which you will be compelled to do at last. He contended that the evidence in this case was the certificate of the Governor of New Jersey, and that must be conclusive in the first instance, because the moment gentlemen attempted to go behind that, as some gentlemen had suggested on this floor, they converted this massive, unwieldy body into a Committee of Elections, and it would have to go back to the people of New Jersey and be carted about from one district to anoother, to examine into the frauds which were generally committed on both sides at elections, which would lead them into interminable difficulties. The CLERK has said that he could not decide upon these certificates, but, at the same time, he has decided upon them. He has decided that Mr. RANDOLPH has a certificate in the proper form, and has put his name upon the roll. Well, if his certificate is properly presented to him, and in a proper form, are not the certificates of the other five New Jersey members in proper form? They are precisely in the same form of Mr. RANDOLPH'S. his is good, theirs are good, and if his is bad theirs are bad. If the CLERK has not violated his duty in placing Mr. RANDOLPH's name upon the roll, it cannot be a violation of his duty to place the names of Mr. AYCRIGG and his colleagues on the roll. The certificate of the Governor in their case was prima facie evidence of their right to a seat, and neither the CLERK nor the House, at the present time, had the right to deprive them of taking their seats. Suppose (said Mr. W) objec tion should be made to my taking my seat, because some one should pretend that he had a right to it; would I permit the CLERK to prevent me from participating in the organization of the House in such case? Has the CLERK any right or power, under the Constitution and the laws, to prevent any body from exercising his right here, when he has the evidence that he has a right to his seat in his possession. No; the CLERK had no right to prevent him from taking his seat when he had his certificate in his pocket; and although he did not desire to preach revolutionary doctrines, he would not be put to the test for all that the world could give him. Neither you, Mr. CLERK, nor any one else here, had

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the right or the power, to judge on the matter which the seven sheriffs of my district alone have the right to decide.

Mr. W. considered that the most proper mode of organization would be, for the CLERK to call over the States, and then each member could rise and present his credentials; and when they presented their credentials in the proper form, they were entitled to their seats, and there was no power to prevent them from taking their seats, and holding them until the House, after it was properly organized, investigated the case. He considered the duty of the CLERK to te a plain and simple duty, and he again appealed to him, as a sworn officer, to say whether it was not his duty to enter upon the roll the names of the gentlemen who had the certificate of the Governor of New Jersey, under the broad seal of the State, whatever might be his convictions as to what ought to have been done by the Governor; and if the CLERK had to decide this question at last, indirectly, was it not better that he should decide it at once?

In conclusion, he said that he desired to hear what the CLERK had to say, and hoped he would be permitted to make the statement he had prepared, because he wished the CLERK to tell him, as a sworn officer, as a native born gentleman of his own mother State, and as a Christian, ready to answer before God and his country, why he had not discharged his duty in the present case.

Mr. BRIGGS was understood to say that he thought the CLERK ought to be heard by the House, as he might probably give gentlemen some reasons which might satisfy them that he was right. Besides, the members here assembled were discussing, and had been discussing, the propriety of the course which the CLERK had pursued, and it was but proper that he should give the reasons which induced him to pursue this course. After this, the discussion on the floor might go on; and perhaps it would satisfy the CLERK that he was wrong in the course he had pursued, and he might be induced to take a different course. It seemed to him but common justice that this gentleman, who was placed in a delicate and responsible position, and who was acting in a manner new and unprecedented, should have the privilege of being heard by the House.

Mr. WHITE replied to the remarks of the gentleman from Virginia, [Mr. WISE.] and contended that the ordinance of 1785, and the resolution of 1791, in relation to the duties of the Secretary of Congress, were no more binding upon the present body than the rules of the last Congress. Their force was only recognised by courtesy, and they had no binding effect upon this body. The present CLERK had undertaken to do what no Clerk had ever before done, and he hoped his friends would not permit him to pursue the course attempted to be pursued. He thought there was something to be seen in the course which the CLERK was pursning; and he hoped he would not be permitted to make any statements to this body in relation to the present case. He had no desire to deprive this quasi CLERK of any of his rights; but if he desired to publish the reasons which induced him to pursue the course he had, he was at liberty to do so; but he objected to the CLERK making the statement in this body.

Mr. CUSHING desired to address himself to the gentlemen here present; for although he recognised the CLERK in his place as the individual who was to keep the records of the House, and as the individual who, under the order of the House, could put questions, yet we were here the Representatives of the sovereign States of the Union, recognising each other as such, and he desired to address a word to gentlemen here present, on the issue presented to them. He desired to hear what the CLERK had to say, and he hoped he might be permitted to make a statement, for he thought the circurstance demanded that there should be explanation, so that we might know, and the people might know, why it was that the proceedings of the Representatives of the sovereign States of this Union were here arrested by the gen

tleman who sits in that chair. What are we? What constitutes this assembly? We are Representatives of the sovereign States of this Union, and we respectively come here armed with the documentary ev dence of our right to seats which the laws of the States communicate to us; and we come here, and take our seats of right, and not because our names may or may not be entered upon the roll by the CLERK.

The members from Maine, New Hampshire, Massachusetts, &c. were called by the CLERK, and when he came to the State of New Jersey, he called the name of one gentleman, upon the commission of the Governor of that State. But why did the CLERK not proceed? Had not Messrs. AYCRIGG, HALSTEAD, &c. identically the same evidence of their right to seats? Had they not the same title to seats that Mr. RANDOLPH had? There could be no good reason given, under the Constitution and laws of the land, why the names of these gentlemen should not be placed on the rol, because the moment you go behind the certificate of the Governor, you raise the case of a contested election, and that can only be done after the House is properly organized. It may be that Mr. DICKERSON and his associates are entitled to their seals, but we cannot act on that question now. We are only now 10 act upon the certificate, which is of record in the CLERK's office. Under this state of facts, he desired to know why it was that the certificates of the five members from the State of New Jersey, under the great seal of the State, and made out in pursuance of the laws of the State, and which was recognised by the CLERK in the case of Mr. RANDOLPH, should be disregarded by the CLERK. He desired to know of the CLERK why it was, when the same evidence was presented to him in the case of these five gentlemen, which was presented in the case of Mr. RANDOlphi, that he refused to put their names upon the roll, and proceed with the organization of the body. He hoped that the House would hear the statement of the CLERK, but when that statement was laid before them, he hoped they should come to some practical point. We have been debating intricate and abstract questions, and he had been surprised to hear gentlemen attempt to nullify and statify their own powers, by arguing that we could not vote, and decide upon any question. Why can we not decide? We cannot choose a Speaker without deciding. When gentlemen say we cannot vote and decide, they also say it is not in order to choose a Speaker, for that will be the next step in our proceedings. Gentlemen were greatly Fistaken when they argued that we could not vote. We can vote, and he supposed we would be voting viva voce by and by. The proof was conclusive that we could vote and decide, but he looked a little farther. We were not sworn members of this House. True it is we have our certificates, but we are an unorganized body, yet we are a body of men with souls, as well as bodies, and may we not make an issue, and decide on that issue? He considered that we had the inherent right to vote and decide. In the House of Commons, from whence we derive all our ideas of Parliamentary practice, the Clerk puts questions at their meeting, and it is so entered on their Journal, by order of the persons present. He does so because he is their servant, and not their master. The Clerk there puts ques-` tions, not as the presiding officer, but as the agent and servant of the House. There is an inherent necessity that we should vote and decide on questions, and it was idle to argue that we could do nothing but by unanimous consent. It was next to impossible to find unanimous consent on any question. He denied any such principle. We may decide upon questions put by the CLERK, or we may appoint a chairman to put those questions, as is done in conventions. These were his views, and for the purpose of bringing them to a practical test, Mr. C. moved the members that the CLERK to the last House of Representatives have permission to read the statement that he has requested leave to read, and that the question on this motion be put by the CLERK.

Mr. VANDERPOEL inquired of the gentleman from Kentucky, [Mr. WHITE,] whether he waived

his objection to the CLERK making a statement explanatory, of the course he had pursued?

Mr. WHITE. I protest against the CLERK reading that document which lies on his table. I have no objection to his making a brief statement, confining himself to his reasons for the course taken by him.

Mr. VANDERPOEL said, if there were any thing like concurrence in the views of gentlemen who supported those who came here with the certificate or commission of the Governor of New Jersey, the task of answering them would be much more simple and easy; but gentlemen had so many and such conflicting modes of attaining the same ulterior object, as at least to justify a suspicion that the object itself could not be a very defensible one. One seemed

willing to trust the CLERK, and charged him with gross delinquency for not inscribing on his roll the names of Mr. YORKE and his associates. Other gentlemen seemed unwilling to trust him, and thought it best that we should pass over the contested seats until we got a quorum. To whom were the arguments, submitted by gentlemen, mainly addressed? Most of the speeches to which he had listened, had been addressed to the CLERK of the House; some severely arraigning his conduct, and others evidently designed to induce the CLERK to recede from the position he had taken. Now, did not common justice, he had almost said commen decency, demand that the CLERK should have the opportunity of explaining? Why did gentlemen deny him this very reasonable privilege? Why were gentlemen here, in limine, so anxious to exclude the light? Was this in accordance with the principle that induced them to exclude the evidence that went to show that the certificate of the Governor was in truth and in fact no evidence of the expressed will of the Soverign people of New Jersey, but that others actually received the majority? Had it come to this, that the voice of a majority of the people of a sovereign State was not only to be silenced by notes of mere form and technicality, but that a functionary who had taken a course that might, in its consequences, possibly give effect to that voice, was not to be allowed the opportunity of explaining and justifying his course, and that, too, after it had been animadverted upon in no sparing manner? He hoped his friend from Kentucky [Mr. WHITE] would review the determination he had expressed, never to permit the CLERK to read the explanation he had proposed to submit to us. It was due to a functionary whom we held responsible for official action, and whose decision had been so severely criticised.

Mr. V. said he had already remarked, that most of the speeches had been addressed to the CLERK, to induce him to abandon the position he had taken. Suppose he refused to recede-and it was not to be presumed that he had announced his decision without due consideration-what course then remained to us, if he remained consistent, but that proposed by the gentleman from Virginia, [Mr. Rives.] His motion was, that we pass, for the present, over the contested New Jersey seats, call the residue of the members whose right to seats was not controverted; and then, having a quorum, we would be in a situation to decide, whether, before organization, all the claimants should stand back. No other alternative remained to us. If the CLERK did not inscribe the names of either set of the New Jersey claimants on his roll, we must, from the law of necessity, by general consent, pass the contested seats, and postpone further action upon them until we procured a quorum competent to act. He had heard a great deal about the law of necessity. He acknowledged its full force and obligation upon this occasion. But there was another law to which we were here, in the discharge of our high duties, amenable; he meant that law of courtesy and propriety which should ever govern our deliberations here. He viewed the good tone and temper with which the debate had thus far been conducted, as an ample pledge that nothing unbecoming the places we occupied would be attempted or uttered. To return, then, again to this universally respected law of necessity, he would ask whether it did not

irresistibly drive us into the course suggested by the gentleman from Virginia, [Mr. RIVES.]

The CLERK had decided, that in the present stage of our proceedings, no question could be taken. And it must be so; for no roll having yet been called, and no quorum ascertained, any body would now have a right to vote. Could not each of the conflicting claimants from New Jersey claim and exercise the right of voting? What could prevent them? Why not vo'e as well as any other gentleman whose name had not yet been called? Here, then, we would exhibit the monstrosity of five more members voting within this bar, than the Constitution or the laws of Congress ever authorized to be elected to the House? We were then driven to the necessity, if our object were not disorganization, of passing over the contesting members, until the list of the undisputed members was completed, and thus secure a tribunal to lock into their case.

[Here Mr. WISE asked Mr. V. to yield the floor, in order to ask him a question. Mr. V. said he would yield it for the purpose of explanation, but not to be catechised.]

And here he would ask, whether, after the roll was called, and before the Speaker was chosen, any efficient action could be had upon this subject matter. He had no doubt on the subject. We were a House competent to act upon it the moment the CLERK had finished calling the list of the members whose seats were not disputed. From the very necessity and fitness of things, a power resulted to us to act upon matters of this description in that stage of our existence. We were a "House" before the Speaker was chosen. The Constitution had created us such, by means of the expressed will of the sovereign people of our respective districts. Parliaments and Congresses existed long before Speakers. There was a sort of preliminary organization the moment the roll was called by the CLERK. And to sustain him in this position, he had very high authority, in a distinguished gentleman from Vermont, [Mr. EVERETT,] whom he differed from in politics, but whom he always listened to with pleasure. He would bring to the aid of the gentleman from Vermont, who sat before him, [Mr. SLADE,] the powerful aid of his colleague. He would now read an extract from his [Mr. EVERETT's] speech, which expressed his (Mr. V's) opinions with so much more force and perspicuity than he could express them, that he would adopt them as part of his argument. Mr. V. here read an extract from the speech of Mr. Everett, in the case of Claiborne and Gholson as reported in the National Intelligencer of the 6th September, 1837, as follows:

"Gentlemen were in error, in supposing that the House was under no law. There was a law which bound them, and that was the law of universal practice-the common law of Parliament. It was a mistake to suppose that the House was not organized until a Speaker was appointed. There was a preliminary organization, which enabled it to act as a body. As to the list called by the CLERK, he formed it according to usage, on what he deemed authentic information. He did so on his own responsibility. As soon as the list was completed, and the members had answered to their names, they formed an organized body, and might proceed to elect a Speaker, a Clerk, or a Committee of Elections, just as they thought best, or might at once proceed to decide on the credentials of individuals. In the present case, before the list had been gone through, those whose names had not yet been called had no right whatever to vote, any more than the surrounding spectators."

This doctrine, said Mr. V. so ably put forth by the gentleman from Vermont, must be true. What sad consequences might result if it were otherwise. Suppose the CLERK is convinced, by evidence before him, that the certificate produced by a pretending member is a forgery; and that in consequence of the sudden death of the Governor, or other certifying officer, the opposite party could not procure the genuine document. Is there so much magic in this prima facie evidence that the CLERK must passively enter his name upon the rolls, and permit the villain not

only to defile these seats, but to participate with us in our incipient, most important acts and deliberations? Are we indeed so impotent a body as all this would imply? Must the poisoned fruit of fraud and villany not only be produced and reaped, but actually eaten, before we can interpose an effectual veto to the production and participation of it? He would resist, and resist in an orderly manner, of course, long and most lustily, to avert such consequences; for they would involve the guarantee, that the potential voice of the majority of the sovereign people of New Jersey was most culpably disobeyed.

How far he would consent to act upon cases of contested elections before the election of Speaker and the organization of the House, in the common acceptation of the term, was another question. But we could, in this case, act far enough to enable us to determine whether one or the other set of gentlemen were elected, or, at all events, whether there was so much doubt on the subject as that it would be expedient that both should stand back until a Speaker was chosen and a Committee of Elections appointed. As to these two sets of credentials, the trial upon which we would first enter was a trial of the record, and in order to this, nothing but an inspection of the record was necessary. The law of New Jersey declares "that the persons who have the greatest number of votes from the whole State, are the persons chosen by the people of New Jersey." Mind, sir, the law is emphatic; "the greatest number of votes from the whole State," not from part of the State, om tuing the good old Democratic towns of Millville and South Amboy. The commission of the Governor, upon which Mr. YORKE and his associates rely, assumes the fact that they received the "greatest number of votes from the whole State" This is at least implied, if not expressed. The Governor then bases his commission upon a return of votes from the who'e State-upon a record, purporting to show that the gentlemen whom he commissioned received the greatest number of votes. Their opponents come in and say there is no such record. You, Mr. Governor, based your certificate upon only part of the record. You remembered to forget that there were two such towns, named Milville and South Amboy, in the State; for you did not compute the votes of these towns. They adduce the actual return, or the evidence of the actual return, as filed in the Department of State, from which it appears that the record upon which the Governor has based his certificate, or commission, is partial and defective. It is not the true and genuine record. Would this not rebut the prima facie evidence of the certificate? Prima facie, sir! What was the good sense and nature of prima facie evidence? It was, that it stood good, until rebutted by other and higher evidence; but, according to the doctrine of gentlemen, it was not, in its nature, here prima facie, but conclusive-conclusive at least so far as to preclude a rebuttal until after the mischief was done; after the prima facie members had voted for Speaker, that high and responsible officer, who appoints your committees, the eyes and organs of the House. Prima facie evidence was, indeed, thus invested with new and unheard of characteristics.

It was said by some, that we could not open the whole door, and go into the whole case before a Speaker was chosen. Here was the distinction, and in stating it, he would indicate how far he thought we might go in this our embryo state. We were, perhaps, not in a condition to purge the polls, to go beyond the ballot boxes, into the consideration of evidence designed to show that votes were given by disqualified persons; for such an inquiry would involve the examination of voluminous, and, no doubt, conflicting testimony; and this could not well be done without a committee; but we were competent to look at the record, to look at the returns, and see whether there was such a record as that upon which the Governor bases his certificate. How feasible was our course after the roll was called, if we went only to the extent that his remarks would commit us; and this would be all that was necessary for the purpose of this case. This was a case sui generis. The distinction between this and

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