26TH CONG....1ST SESS. New Jersey Contested Election-Mr. Johnson, of Maryland. which he had moved the previous question on a pending proposition Mr. JOHNSON said that he had given notice to the House this morning, when he withdrew his point of order, that he should take the earliest moment to renew it. He would read it again for the information of the House: "The Speaker of this House is bound by the laws of the United States to administer the oath of office to each member who presents himself and has a regular certificate of election, attested in conformity with the laws of New Jersey and the Constitution of the United States." Several members here rose to a point of order, by stating that the motion for the previous question was not debatable. The SPEAKER decided that the previous question admitted of a limited debate, but not, however, so as to touch the merits of the main question. Mr. JOHNSON said that he maintained that his question was one of privilege-a question always in order-one of the highest dignity, and rode over every other question. The CHAIR said that he was reluctant to interpose, but felt bound to enforce the general parliamentary law. [Much confusion ensued, and many members rose to points of order.] Mr. JOHNSON said he had not yielded the floor, and that he could effect his purpose as well by raising a point of order in a varied form, which he had reduced to writing, and would now send to the Chair, and withdraw his first: "A motion to take the previous question is not in order until rules for the government of the House are adopted; nor while there are members of Congress who desire to be sworn in." tion and motion of the gentleman from Virginia, strate. He said that, before he would proceed to give his reasons for the position which he had assumed, he would take occasion to say that he wished to impute nothing improper to the course which the Speaker had taken. It was well known to him (Mr. J.) that the Speaker had been called unexpectedly to preside over this House. The thought of being elected had perhaps not occurred to him or his friends until the day before his election. Called thus suddenly to discharge the high and important duties of that station, it could not be expected that he would be at once and ever ready to decide upon all the various questions and duties which would intervene in his multifarious and arduous labors. Then, so far from censuring the Speaker for not having at once administered the oath of office to all the six members of the New Jersey delegation who presented themselves to be qualified, it was perhaps a mark of prudence and of wisdom for him to have paused, as he did, and to ask of the experience of the House what would be the course of propriety and of duty in this juncture of affairs. It was wise in this, at least; it gave him time to hear the views of others, and to allow the Speaker to examine the question for his final determination. He did not understand the Speaker to say that he would take no action but what the House would indicate; but that his opinion was, that they should be sworn in, and that he would not have hesitated had it not been that the members of the House had voted on the question before they were organized, and that he now asked them what he should do. Ho. OF REPS. House by a majority of voices. You have been sworn into office by one of its members, [Mr. WILLIAMS, of North Carolina.] The members elected you, it is true; but did the House decide that the Speaker should take an oath, and that a member should administer that oath to him? No, sir; it was a higher authority. The Constitution says you shall take an oath; the law of Congress defines the language of that oath, and that any member may administer it to you. Then, the moment that the Speaker is elected, and the oath of office is administered to him, he rises above the dignity of a simple member, and becomes an executive officer of the Government for many purposes, armed with all the powers of the law, and is bound to discharge the high and sacred trusts reposed in him by the law and the Constitution. The first executive duty he has to discharge is to swear in all the members. If it should be asked who are the members, the answer is of easy solution: those who have the credentials of their State, made out according to the laws of their State, as authorized by the Constitution of the United States. The Constitution and the laws will not authorize him to go behind the certificate made out in due form, with all the solemn sanctions of the law. Are their seats contested, let those contesting them petition this House after it is organized. Is their claim a strong one, and one which can be quickly settled? refer it to the Committee of Elections; for, why have this House always heretofore organized a Committee of Elections, if nothing is to be referred to it, and if the House, before being fully organized, decide all contested elections without evidence of any kind? If the members who have been sworn in are not entitled to their seats, and the case is of easy solution, they can report in a few hours, or in a few days, and then this House can resolve itself into its high judicial capacity, and vote them in, if they have better claims than those whom you first swore in. Is the case one of difficult solution, the Committee of Elections can have the polls purged, the election returns examined; the State is represented in the mean time, and her other interests protected; and, when all the facts are made clear, the committee can report the result of their investigation and deliberation, and the House can then take order on the subject, with all the facts of the question before them. The law makes the duty of administering the oath of office imperative upon the Speaker, after he has been sworn in. It says, he "shall" administer the oath to "all" the members present. The first clause of the fourth section of the first article of the Constitution declares that "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislatura thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators." The first clause of the sentence is now the active Mr. J. maintained that a motion for the previous question was wholly inadmissible in the present incomplete organization of the House. No rules had yet been adopted for its organization. The previous question was unknown to the old parliamentary laws. It was a refinement of modern usage, and always a tyrannical exercise of power which a majority would use, and most frequently abuse, to oppress a minority. Rather than a rule of the general parliamentary law, it was an exception to the general law, and therefore could not be rightfully enforced in the present condition of the House. But he did not rest his point of order wholly on the inadmissibility of Such a course is regular, precedented, and parthe motion for the previous question; but the liamentary. A Speaker, upon a vexed question point, he humbly conceived, could not be con- of order, often refers to the House, oftener, pertested, that no business could be done, no ques-haps, to experienced members, for their views, tion whatever could be taken, when there were or to ask for precedents to guide his course. Nor members waiting ready to be sworn in. This is it unusual for judges on the bench to ask of was a question which went to the Constitution the bar their recollection of the law, or the parand the laws of the United States. No arbitrary ticulars of some former decision of the court. So rules of this body, or of the general parliament- far as the rules of the House on points of order, ary law, could be quoted to overthrow an insti- under the rules, may be brought into question, it tution which some of the members had sworn to can never be unwise in the Speaker to refer the support. question of doubt to the solution of the House by its vote; for the rules are made by the House, and subject to its alteration as well as decision. But, so far as the present question is involved, he humbly conceived it one not for the action of the House at present, but for the deliberation and execution of the Speaker. It is a question of higher dignity than a question of parliamentary form and law; it is a question involving the Constitution, the laws of Congress, the laws of New Jersey-a question which goes to the very basis and foundation of the Government. That the Chair should desire to listen to a dis-holding elections for Senators and Representacussion on the question, under the circumstances, in order to hear expounded the law for his final decision, he should most cordially commend; but this House has no power to make a law for the case, nor can it expound, in the present case, the law; nor can the Speaker be relieved from the discharge of his duties, however responsible or unpleasant they may be, however much confidence he may have in a majority of this House, by asking a vote of this House upon a question, not of the rules, but a question who shall be sworn in under the law, which law is beyond the reach and counterinfluence of this House, which is only a coördinate and coöperating branch of the Government, and cannot make laws without Mr. J. feared that John Randolph had spoken too truly when, with his sagacious mind, he had penetrated the future by judging of the past and said that the time was not distant when a member of Congress would be called to order for referring to the Constitution of the United States. What was prophecy is now sad reality and truth. He maintained that it was incompetent for the House to consider any proposition whilst there were members waiting ready to be sworn. [Several members here rose to points of order.] Mr. CAMPBELL, of Tennessee, said that, to relieve his friend [Mr. JOHNSON] from the repeated interruptions of some members, he would move that he be permitted to proceed. The SPEAKER then put the question; which was carried by a large vote without a division. Mr. JOHNSON resumed, and said that he returned his most cordial acknowledgments to the House for their manifestation of respect, and should not abuse their kindness by a long speech. The petty interruptions which he had received had annoyed the House quite as much as they had him. He saw how uneasy some gentlemen were when he alluded to the Constitution which they had sworn on the holy Word of God to support. His purpose was less to address the House than to address the Speaker, but he hoped he would have the attention or all. Mr. J. said that he maintained that the resolu the concurrence of the Senate and of the Presi- principle of the law, Congress never having passed a general law on the subject. In the absence of any general law, the law of New Jersey becomes the rule, the living law of the land, as much so as if it were really a part of the Constitution itself. For, in the absence of any general law of Congress, the Constitution would become inoperative and a dead letter, had not the States passed laws, in conformity with the provision of the Constitution, regulating "the times, places, and manner of tives. By the law of New Jersey, enacted to carry out this provision in the Constitution, which was in force when the claiming members received their certificates, it is declared in the fifth section that "The Governor, or person administering the Government, and Privy Council, shall also determine the six persons who have the greatest number of votes from the whole State for Representatives in Congress of the United States from this State; which six persons, the Governor, or person administering the Government, shall forthwith commission, under the great seal of the State, to represent this State in the House of Representatives of the Congress of the United States." Mr. J. said that he would ask if it was in the power of human language to be more explicit to express more clearly than the language of this law does who are the members from New Jersey? Is it possible that there can be a mist or a shadow 26TH CONG....1ST SESS. New Jersey Contested Election-Mr. Johnson, of Maryland. of doubt in the mind of any individual who are the members that should be sworn in? If the law had named the individuals, their identity would not be more easy of recognition than those pointed out in the law who have the ertificate of election under the great seal of the State. Has any one doubted the validity of this! law? Has any one doubted the authenticity of the certificates which have been presented by the members from New Jersey? He would answer 10. No one has made even an insinuation of doubt. Are not the certificates of the five members precisely like Mr. Randolph's, who has been sworn in? Where is the law which allows the Speaker to go behind the certificate? Where is the law which authorizes him to appeal from himself to a majority of this partially-formed Housethis inchoate body? I have searched in vain for such a law. I have looked in vain for even a precedent. Where is the law which allows the Speaker to discriminate between two certificates precisely alike in every particular, to swear in one, and hesitate to adininister the oath to the other? But the first law passed by the first Congress, after they had a quorum, was a law regulating the oath of office, and who should administer it. On the 7th page of the Journal of the first Congress, April 6, 1789, the following order was made: Ordered, That leave be given to bring in a bill to regulate the tating the oath or affirination prescribed by the sixth article of the Constitution, and that Mr. White, Mr. Madison, Mr. Trumbull, Mr. Gilman, and Mr. Cadwallader do prepare and bring in the same." The sixth article of the Constitution declares that "The Senators and Representatives before mentioned, and the members of the several State Legislatures, and ali executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." I will read the first part of the second section of the act passed to carry out the provisions of this article of the Constitution. It stands first on the statute-book, and is entitled AN ACT to regulate the time and manner of administering certain oaths. "SEC. 1. Be it enacted by the Senate and House of Repre sentatives of the United States of America in Congress assembled, That the oath or affirmation required by the sixth article of the Constitution of the United States shall be administered in the form following, to wit: I, A B, do solemnly swear, or affirm, (as the case may be,) that I will support the Constitution of the United States. The said oath or affirmation shall be administered within three days after the passing of this act by any one member of the Senate to the President of the Senate, and by him to all the members, and to the Secretary, and by the Speaker of the House of Representatives to all the members who have not taken a similar oath, by virtue of a particular resolution of he said House, and to the Clerk. And in the case of the absence of any members from the service of either House at the time prescribed for taking the said oath or affirmation the same shall be administered to such member when he shall appear to take his seat. SEC. 2. And be it further enacted, That at the first session of Congress after every general election of Representatives the oath or affirmation aforesaid shall be administered by any one member of the House of Representatives to the Speaker, and by him to all the members present, and to the Clerk, previous to entering on any other business, and to the members who shall afterwards appear, previous to taking their seats." stitution, page 704. The distinguished comment ator says: "As soon as the Constitution went into operation, Congress passed an act prescribing the time and manner of taking the oath or affirmation thus required, as well by officers of the several States as of the United States. On that occasion some scruple seems to have been entertained, by a member, of the constitutional authority of Congress to piss such an act. But it was approved without much opposition. At this day, the point would generally be deemed beyond the reach of any reasonable doubt." The question of its constitutionality is at rest; no one debates its binding force. This House can have no power to resist its execution, as it has been executed by every Speaker who has preceded you from the formation of the present Government to the present meeting of the members of this House. With a knowledge of this plain law, which points out (as Mr. J. humbly conceived) the line of duty as plainly as if it were written with Promethean fire, can a justification be urged for its not being promptly executed, that a vote of a part of the members elected to Congress constituted themselves into an informal House of Congress, and by a tie vote declared that the five New Jersey members should not take their seats, because that informal assemblage of members were guilty of a usurpation of power and a direct violation of the Constitution and the laws of the United States? Will such wanton conduct relieve the Speaker from his duty to the country? The informal body that gave that vote were not So far as the informal body acted in order to "Resolved,. That the Secretary officiate as President The Secretary's list gives no positive right to a member to a seat. It is only called in order to furnish evidence that the members are in attendance. It is the certificate of election under the law, with all the solemnities of the law, that is evidence, and which alone is evidence, and which What can be more mandatory, what more cannot be rightfully rejected upon the organization of the House. The Clerk well knew what positive and unequivocal, than the language of had occurred in the case of Moore and Letcher, this law? After the Speaker shall have been sworn in by a member, he shall administer the for it was well known that the then Clerk of the oath to all the members present previous to enter- House placed the name of Moore on his list, ing on any other business, and to those who after- although his certificate was informal and imperwards appear, previous to their taking their seats. feet, by which he offended two members, friends Where in this law is any discretion left with the of Mr. Letcher, who did not vote for him, by Speaker to postpone the discharge of this positive which he lost his reclection. The present Clerk, injunction? Where is any allusion made to the less honest, saw this question, not as a faithful opinion of the House in its informal state, or its officer, but as one who knew he would get his quasi organization, or in its full and complete daily bread-and that was reason enough for organization? This is the binding, existing, para-him-by refusing to call the five members who mount law of the land, and no vote by any ma- had certificates of election, and that he would jority of this House can either take from or add thereby secure his reclection, and subserve the to its source. No vote of this body can add to or political purposes of his party. lessen the obligations enjoined upon the Speaker by this plain and important statute law. No one now doubts its constitutionality. At the time of its passage there were some slight doubts raised, as will be found in Elliot's and Lloyd's Debates. I will read a few sentences from Judge Story's Commentaries on the Con Ho. OF REPS. that they believe, although they will not avow it, that other claimants are entitled to all the rights and privileges of their places. They have, by a tie vote, given no opinion in relation to the members who have the regular certificates of election. And it is well known to you and to all of us that, had Mr. HAWES, of Kentucky, been in his seat at the time, he would have voted in the affirmative. Then you have the assurance, in the first place, that the members are unanimous in the opinion that the contesting members should not be sworn in, and you have a majority of the members who believe that the other five should be. The only argument (said Mr. J.) which I have heard urged with any serious earnestness in the House, before you were elected, was, that if the members who had the certificates were allowed to vote, a Speaker might be elected by their votes, and that afterwards it might possibly appear, upon examination of the election returns and of the whole case, that the other gentlemen would be entitled to the seats. The Speaker has been elected without their votes. Now, the argument is, that because members voted once to reject them wrongfully and in violation of law, and without having the oath of office administered, they must vote to reject them again. The morality of which is, that the latter outrage is justified by the former, and the essence of the logic is, that two wrongs will make one right. Mr. J. maintained that a more direct assault never was made upon the Constitution and the laws than the vote excluding the five New Jersey delegates. As ample as are the powers of the House of Lords of England, the members of this House have outstripped them in exercising power. When sitting in judgment, the peers do not give their decision on oath, as do the members of the House of Commons, but simply on honor. But every peer is bound to take the oaths prescribed by the laws of England, before he takes his seat. Any peer voting before he has taken the oaths, renders his whole property liable to forfeiture." But a portion of the members of this House, with the imperative law of the United States before them, with the Constitution which enjoins an oath, and with the usage of all the civilized and Christian world which requires public functionaries to forbear to decide upon the rights and interests of others, without the fear of Heaven, in the most solemn form presented to them, and in the form of an oath, have evicted five members from their seats; and members from a State which furnishes her opinions in times past as well as present, that she requires an oath, not only of those whom she may appoint to represent her interest, but from all who may either directly or indirectly have to pronounce upon any matter touching her welfare as a member of this great Republican Confederacy. I will (said Mr. J.) read her opinions in her own language from the book I hold in my hand. Mr. RIVES here called Mr. JOHNSON to order. Mr. JOHNSON said that his evil genius had risen behind him to haunt him once more with his confused points of order. Mr. J. resumed his remarks, and was about to read from the Journal of the old Congress; when Mr. ATHERTON said he would call the gentleman from Maryland to order; he was wandering from the true line of debate. Mr. JOHNSON replied that the gentleman had twice called him to order. The first time he had proffered the impatient member one of the books before him to read whilst he was progressing in his remarks to the Chair; but the gentleman had thought fit to call him to order again. He must now be allowed to say, with becoming and profound sincerity to that distinguished member, that he did not adopt him entirely as his standard for taste or his model in debate; it was his misfortune and his fault. That learned and logical member argued as with intuitive induction; he (Mr. J.) sometimes reasoned by analogy. He had not, and he grieved most sadly for it, that elegiven an opinion in the mere informal organiza-gant and happy facility of giving language to his tion of the House? By a unanimous vote they thoughts with that inimitable perspicacity which have declared that the contesting members are distinguishes the learned member from New not entitled to the seats. That is a negative Hampshire. He had often listened with perfect pregnant, and amounts to a direct affirmation rhapsody, as had the House on many occasions, But how stands the question so far as the members, whose seats are not contested, have 26TH CONG.... 1ST SESS. to the brilliant displays of the learned member. The gentleman had the most rare talent, to collect all the resources of his gifted and richly cultivated mind, and embody them, with a facility peculiar to himself alone, in one elegant and sonorous sentence; and that sentence was-order, order. After this explanation, which Mr. J. hoped would be satisfactory, he trusted he might be allowed to proceed without further interruption. The paper which he was about to read was to be found in the Secret Journals of the Congress of 1778, and was in the first volume, page 374. It was one of the ablest papers of that day, and he would only read that part of it which was germane to his purpose and the subject he had under consideration: "THURSDAY, June 25, 1778. "To the United States in Congress assembled : "The representation of the Legislative Council and General Assembly of the State of New Jersey showeth: That the Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, proposed by the honorable the Congress of the said States, severally, for their consideration, have been by us fully and attentively considered; on which we beg leave to remark as follows: "1. In the fifth article, where, among other things, the qualifications of the delegates from the several States are described, there is no mention of any oath, test, or declaration to be taken or made by them previous to their admission to seats in Congress. It is, indeed, to be presumed that the respective States will be careful that the delegates they send to assist in managing the general interest of the Union take the oath to the Government from which they derive their authority; but, as 'the United States, collectively considered, have interests, as well as each particular State, we are of opinion that some test or obligation, binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to assent to no vote or proceeding which may violate the general confederation, is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions; and the more solemn and inportant the deposit, the inore strong and explicit ought the obligation to be." 、 Many of the framers of the Constitution were members of the Congress before whom the remonstrance of New Jersey was read and considered, and hence, very likely, that clause in the Constitution which enjoins upon members to take an oath or affirmation. And hence, too, most likely, that clause in the law of 1789 which enjoins upon the "Speaker" to administer the oath to all the members present, and to the Clerk, previous to entering on any other business, 'and to the members who shall afterwards ap'pear previous to taking their seats." The law of Congress adopts almost the very language of New Jersey. New Jersey, that had thus early tried to protect her rights, to plant round herself, as it were, safeguards with all the binding force of law, and the solemn influence of religion, is the first victim on which this first infraction of the law has fallen. She sends her delegates here with all the authority of her law, with all that is required by any existing binding law, and spurn them from the Hall. What higher proof can she give than the credential made out in conformity to her laws, impressed with her great seal of State? I will not (said Mr. J.) discuss her great seal. I will not inquire if a new one is made upon the election of every Governor. I will not ask if it is six inches in diameter, like the great seal of England, and, like that, is cut into four pieces upon every accession to the Throne, and placed in the Tower, and a new one of silver formed. These inquiries I will leave for the curious. Sufficient for us to know that it is the highest proof of her will, it is the most solemn evidence of her sovereign authority. It should everywhere be evidence both of her will and her authority. you New Jersey Contested Election-Mr. Adams. When was the power of the great seal of a State questioned before? Go where you will but to this House, and it will not be disputed. Go to the courts of law, its presence will of itself speak its power. I will refer to authority, for I fear argument vill be less convincing. In Baldwin's Reports, page 78, in the case of the United States vs. Wilson and Porter, in the circuit court of the United States, it was decided that, "A pardon granted by a Governor of a State, under its great seal, is evidence per se, without any further proof." With all the investigation which has been bestowed, not a single case has been presented where the individual who has the legal evidence of his election has not been allowed to occupy his seat until the particulars of the election could be investigated. Not a single case can be found in this country or in England. I will read a case from Jacob, which has not been read, and which meets the question before the House, and before you, Mr. Speaker, in every particular: "In 1640, it was ordered (by the House of Commons) that where some are returned by the sheriff, or such other officer, as by the law hath power to return, and others returned by private hands, (as has been done here,) in such case those returned by the sheriff, or other officer, shall sit until the election is quashed by the House." What stronger proofs can be offered? What mind, unless it is predetermined, can hesitate a moment in declaring that the members from New, Jersey, who have the certificates, should instantly be sworn in? Mr. J. said he would not appeal to the members of this House, for he apprehended it would be useless. He could not appeal to those who, on former occasions, had so loudly advocated the rights of those who held the certificate of election, and who had so suddenly, on this occasion, reversed their former positions; it were useless. Nor would he appeal to some who were always dwelling on State rights. No, he would not; for State rights had become, with many, a catchword; they used it most when they most abused it. State rights would be (he said) in a deplorable condition if they rested upon some of their professed friends for support. He would not speak of the motives of any member, for it was neither his privilege nor his right to do so. He would, however, state that he generally adopted the rule laid down by Junius in his letter to the Rev. Mr. Horne: "To judge of the integrity of men by their conduct, and not by their professions." But he would say, if the New Jersey members were not received promptly as the Representatives-the ministers of their State-she could well consider herself as expelled from the Union, and she would have a perfect right to withdraw all connection from the Government. She would have a perfect right to send her agents to negotiate elsewhere, Had such treatment been inflicted on some of the States of the Union in times not long past, such would have been the result. But it is you, Mr. Speaker, that we look to prevent this injustice to New Jersey, this infraction of the laws. You derive your power, Mr. Speaker, on the subject, (he would repeat again,) not from this House, but from the law. The House but elects you. The law invests you with power, and power to execute the law. This House may elect you, as it has elected a President of the United States. He does not for that reason appeal to this body to ask its opinion upon his duties. He appeals to the Constitution and the laws as the rule of his conduet. The Constitution and the laws have defined your duties. The law, not this House, says you shall swear in the members who present themselves to be sworn in. The New Jersey members have presented themselves. I am authorized from them to say that they are now ready to receive the oath from you. The Constitution, the law of the United States, and the law of New Jersey, are for the time suspended. You can give them vitality and action. And I repeat that the law of Congress made in pursuance of the Constitution, and to carry the provision of the Constitution into full force, and the law of Jersey, made also in pursuance of the Constitution and by its authority, to give it efficiency, are as binding upon you and the members of this House as if they had been written in the Constitution itself, and had been made a part of that organic law. Mr. J. said that in concluding his remarks, which he had extended, he feared, to too great length, he would say that if the Speaker viewed this subject in the same light in which he did, he would not longer hesitate to administer the oath to the members from New Jersey. He hoped that the Speaker would calmly examine the law and its philosophy, and relieve the House from this protracted discussion. The unprece Ho. OF REPS. dented condition in which the House had been placed, and the country, required of the Speaker to exercise, rigidly and fearlessly, all the powers with which the Constitution and the laws had invested him. Say to the New Jersey members, come forward and receive the oath. Hold up to the country the laws and the universal usage, and you will receive the thanks of the nation. You will receive the respect and admiration, in a little while, of those who are now prejudiced by the warmth of partisan feelings. They will, in their calmer moments, be as ready as any to justify and commend the act. Swear them in before the House take a vote on the question. If this question is decided not by the law and the usage, but by a vote of this House, the example will be mischievous, the precedent will be fraught with permanent and abiding evil. It will open a door in times to come, when parties are excited, and the nation convulsed, which will easily lead to the total overthrow of the Constitution and the Government. The crisis now requires moral fortitude, a firm and fearless reliance on the laws of the nation. Sir, (said Mr. J.,) when but a few years ago the question of nullification was extending from the South to the North fast, wide, and wildly, many politicians, some with pure, others with designing motives, caused a dinner to be given in this city to forward the feeling, and to commit President Jackson to the doctrine. When, by the previous concert of a few leaders, toast after toast was offered, speeck after speech was made from able men selected for the purpose from various points of the Union, when the feeling seemed to be spreading with electric contagion, with the confidence of ardent hope, it was at that when all eyes were directed to General Jackson moment he rose, with a firm and noble grandeur, and proclaimed amidst his devoted friends," The Union-it must and shall be preserved." There was a moral sublimity in the act, which gave as much luster to his character as his proud victory at New Orleans. Administer the oath to the New Jersey Representatives, for you alone possess the power and the right, and you will heal the breach which has been made in the Constitution and the laws. Do this duty firmly and quickly, and (Mr. J. said) my life on it, the warm greetings of your magnanimous constituents will thank you, every friend of the Constitution everywhere will thank you, posterity will thank you. NEW JERSEY CONTESTED ELECTION. SPEECH OF HON. J. Q ADAMS, IN THE HOUSE OF REPRESENTATIVES, After a long and somewhat stormy preliminary dispute on questions of order, and the priority of business Mr. ADAMS said: It is not my intention to trespass upon the patience of the House by occupying much time. The first point to which I go is this. It is the same in substance which was made as a point of order by the gentleman from Maryland, [Mr. W. COST JOHNSON,] namely, that this House can proceed to no other business whatever until all its members have been sworn. I began by reading out of time, for I had reserved it for another place, this law of the United States. Mr. A. had quoted the statute of 1789, which provides as follows: "SEC. 2. And be it further enacted, That at the first session of Congress, after every general election of Representatives, the oath or affirmation aforesaid shall be adininistered by any one member of the House of Representatives to the Speaker, and by him to all the members present, and to the Clerk, previous to entering on any other business, and to the members who shall afterwards appear, previous to taking their seats." I say that this law is now binding, but preceding that, there are some provisions of the Constitution to which that law applies, and to which it will be necessary for me to refer. The first is this: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers.) 26TH CONG....1ST SESS. Then follows the manner in which the numbers shall be determined. New Jersey Contested Election-Mr. Adams. But, as I presume the words of the Constitution in this passage are in the minds of all gentlemen, I will read no further, but will state that it was then declared that New Jersey should have four Representatives in this House; that a census should be taken from ten years to ten years; that cach State should have a representation according to its numbers ascertained by the census; and that immediately after the last census of 1830—that is, on the 22d of May, 1832-an act was passed for the apportionment of Representatives among the several States, according to the fifth census, which provides that the House of Representatives shall BE COMPOSED Of One Representative to every fortyseven thousand seven hundred persons in each State; and it goes on to specify, "that is to say;" and then follows the specific number of Representatives for each State, of which it declared that New Jersey shall have six. Now, I say that the House of Representatives is not, in the sense of this act, "composed" until New Jersey have six Representatives on this floor. I set aside the act of God which has deprived my State of one of its most valuable Representatives; I set aside the act of God by which one of the Representatives from New York was prevented from attending here by a deep domestic affliction; and I set aside another act of God by which one of the members now in this city has been disabled by bodily indisposition to attend here in this place. And must I set aside another privation of five members? excluded, not by the act of God, not by the neglect of the people of New Jersey, but the arbitrary decision of less than a majority of this House, that five more gentlemen who presented themselves here as five out of six Representatives to which the law says that New Jersey shall be entitled in this House have been virtually shut out and excluded from it. This is the Constitution. This is the law. I have read them both. The Constitution says that New Jersey is always entitled to have in this House a certain number of Representatives in proportion to her population. A law of the United States, unrepealed, and therefore still of binding force, says that after the year 1832 the House of Representatives shall be composed of a given number of Representatives, six of whom shall be from New Jersey; and I ask whether this House of Representatives is so composed? And, if it is not, whether it is a constitutional and legal House of Representatives till it shall be? But in answer to this question it may be said, and it has been said, these are others who claim to be Representatives from New Jersey. Now, the Constitution says that each House of Congress shall be the exclusive judge of the elections, returns, and qualifications of its own members; and the gentleman from South Carolina, [Mr. PICKENS,] a few days ago, with extreme ingenuity, (an ingenuity which I could not help admiring, whatever other sentiment it might have occasioned in my mind,) called on us to analyze this provision, and said that in it were contained three distinct rights: first, the right of judging on the election of its members; secondly, of judging of the returns of their election: and, thirdly, of judging of their qualifications. The course of the gentleman's argument it is not necessary for me now to follow; but in this clause of the Constitution there is one word of which he took no notice, but which I now ask him to analyze, and ask this House to analyze, and that is the word Judge. Now, in analyzing this word judge, I propose to ask, first, what it imports, and, secondly, why it was inserted. And in the first place, I say that this word "judge," as here employed in the Constitution, implies a trial, implies parties, implies a contest, implies evidence, and a law according to which the judge is to act. The Constitution of the United States has not said that the House of Representatives shall have arbitrary power to exclude or to expel any member from its Hall, and from all the rights of a member of the House. It does not say that the House shall possess the arbitrary power to do this, but it says that this House shall have power to judge. And how? Not by its mere arbitrary act; not according to the simple fist of the majority. No. The authority conferred is a judicial authority. Now I ask, in the second place, how it has happened that such a provision is inserted here, in an HO. OF REPS. referred to yesterday by the gentleman from Virginia, [Mr. WISE,] and the account of which he read to the House-the case of Oliver Cromwell, when, by the agency of a clerk, he excluded from the House of Commons all the members of the Parliament of England except such as he esteemed the righteous and the godly. There is not a hair's breadth between that case and ours; and the tenant of the White House may, with the help of this precedent, send down to us a minute of those who, in his opinion, are the righteous and godly members of the House of Representatives, with an order to turn out the rest. And now to come to the position I take, namely, that the five members appearing here with credentials from the Governor of New Jersey have the same right to sit and vote with every other member of this House; and in support of that position I refer again to the Constitution, to the law, and to immemorial usage without one exception. The question as to the first right of any member of this House to take his seat, subject to a subsequent inquiry and decision by the House as judges, is founded on the evidence which he produces of his membership. And what has been this evidence? It has been such as is prescribed by the laws of the several States; in general, it is the signature of the Governor of the State; the very highest authority known in all courts throughout the world; the very highest evidence of all documentary acts. I have heard much said here about the broad seal, and gentlemen have argued about the broad seal as if its virtue was in itself: we have heard of the great seal of England having been thrown into the Thames by James II, and that the conclusion is, therefore, no credit is due to broad seals-that is the logic. But it is not the broad seal itself, it is the principle which lies under it, that is to be looked at: which, by the laws of all States and nations, renders it the highest evidence known among men. The seal itself is nothing. The power which created can change or break it at pleasure; but its admission as authentic proof of record by the universal consent of all nations; this it is which gives it value. It is a question for the States whose seal is set aside. If, by any act, you show contempt of the seal, you show contempt of the power from which it emanates, and of the law of nations. That is the principle; a principle founded in reason, founded in humanity, and necessary between nations. I hope it is not to be affected by the sinking of the broad seal of England, or its being carried away by a tyrant. In this contempt for broad seals there seems involved the principle that, whenever images or statues are held sacred, the sanctity lies in the marble and not in the god represented by it. It is not a question here how many inches, or feet, or yards, or acres, a broad seal may cover; that is not the question: but the question is, whether, by your act, you will set aside the highest evidence any State or nation can produce. It is not a question of a broad seal; but it is a question whether the sovereign State of New Jersey, speaking in its own forms of law, in the most authentic form in which it can speak, according to the laws not only of this, but of all nations, shall be buffeted and kicked out of this House. That is the question. Now, I say that, by the Constitution, by the law, and by inmemorial usage, not only between the States of this Republic, but among all civilized nations, these five commissioned members have produced to you the highest-proof possible of their membership, and that you cannot reject them without rejecting the evidence they have produced. Now, it is said against all this that there is a But there is another power conferred on this House by the Constitution, and that, I must admit, is in a considerable degree discretionary. The power is absolute in itself, and this Constitution has not said for what it shall be exercised. But when this power was given, did the authors of this instrument suppose it would be attended with no danger? Far from it. And the proof is found in the fact that, in this one instance, they dissolved that great and almost universal law which requires that legislative bodies shall decide by majorities, and have required the consent of two thirds before this power can be exercised-I mean the power of expulsion. There must be two to one before any member can be expelled from this House. That is the caution and the guard under which alone the Constitution authorizes us to exercise a power so tremendous. Now, then, let us for a moment inquire how this, stands. In our proceedings within this Hall, when we were in an informal and unorganized state-when not a member had been sworn to the faithful performance of his official duty, less than a majority of this body, a mere tie, and that in a House not composed according to law, did decide that five members who were requisite to the composition of the House, should not be allowed to vote. What was the effect of such a decision? I say it was a virtual expulsion of those members. It was the same thing as if the House, by a simple majority, and not even that, had voted that five of its members be expelled. Here, then, was an act done by less than a majority, for which the Constitution requires a vote of two thirds. I say that the effect of this act of less than a majority is precisely equivalent to the expulsion, quoad hoc, of five members who formed a part of the composition of the House. I say it was an act which this House had no power to perform-that it was unconstitutional, illegal, null and void: and I vouch the Constitution and the laws of the United States to prove it. What is the next consequence which follows, if this be legitimate? It was this unformed, unsworn, unorganized body, not composing a House of Representatives, which had in its hands a discretionary power to expel any one member who happened to be obnoxious to one half of the members. I say, that body had no power to pass such a vote, and further, I say, that this body has as little. What must be the consequence if such a doctrine was admitted? Supposing this body in its present state be a House of Representatives, which I say it is not so long as there are five members, duly commissioned and claiming seats, who are ex-suspicion!-a suspicion of fraud. Offraud? Where? cluded from it-still the remainder has no power to declare that they shall not vote; it is unconstitutional. These men have the same right to vote which you or I have, or any other member of this House, and the House cannot divest them of that right This House has no power to say A, B, C, and D, shall not vote. If it has the right to say so respecting these five New Jersey members, it may say the same respecting all others, for these stand on identically the same ground with all other gentlemen here. If you say you have a right virtually to expel them, you have the same right to expel any other member, and then we are come precisely to the case Of fraud in the application of the broad seal? Of fraud in the evidence? Of fraud in the act of the Governor of New Jersey? No; there has not been the slightest intimation of such a thing; but behind the commission there is a certificate of one who is not a certifying officer known to the law, a certificate not sworn to, that in the election there was fraud. That is a suspicion. Well, and is there not another suspicion? Is there not a suspicion that in that very majority which he cer tifies, there was fraud by the admission of illegal voters. And such fraud as will change the majority? Have the gentleman's suspicions settled between these two? No. I know there is too 26TH CONG....1ST SESS. much justice here to settle on any such induction. That is to be settled when this House comes to act as a judge in the proper time and place. New Jersey Contested Election-Mr. Adams. Mr. DUNCAN interposed. Had the gentleman any allusion to me? [Loud and general laughter.] Mr. ADAMS. None at all. Not the least. None whatever. [Here the Hall resounded with shouts of merriment.] For my own part, I do not know which of these suspicions is founded in truth, and which not, or whether both may not be. I cannot say whether there has not been fraud in the returns, or fraud in the voters. That we are hereafter to decide in our capacity of judge, and not by the preceding will and pleasure of the House. That is a question for hereafter; but, in the meanwhile, does that suspend the right of a member to be sworn? The principle and the practice in such cases have always been to receive those bringing regular returns of election according to the Constitution and the laws, to admit them in the first instance to their seats, and then, as judges, to decide upon the whole case. I commiserate the gentleman from Virginia, [Mr. DROMGOOLE,] who rummaged a large volume of contested elections, and in all that record could not find one single case which did not make directly against him, (as has since been fully proved.) An authority has been read to us respecting the practice of the British Parliament from Jacob's Law Dictionary. I have a higher authority-the authority of Blackstone, speaking in his Commentary. In the chapter which speaks of the manner in which elections shall be held in England, Judge Blackstone says: "The election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority; and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon to the clerk of the Crown in Chancery; before the day of meeting, if it be a new Parliament, or within fourteen days after the election, if it be an occasional vacancy, and this under penalty of £500. If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Henry VI, £ 100, and the returning officer in boroughs, for a like false return, £40. And they are besides liable to an action in which double damages shall be recovered by the latter statutes of King William, and any person bribing the returning officer shall also forfeit £300. But the members returned by him are the sitting members, until the House of Commons, upon petition, shall adjudge the return to be false and illegal." There is the law of England. The return cannot be set aside even when the sheriff has been bribed. The sheriff is punishable for his villany both to the public and to the individual who may suffer by it; but, nevertheless, the member returned is the sitting member till the House on trial shall adjudicate the return to have been false and illegal. Here I rest my case-t -the case of our five assoIciates who have claimed to be sworn at that table, and I here challenge and openly defy any and every member of this House to point me to one single principle of the Constitution, of the laws, or of immemorial usage, which shows the contrary, and gives this House iota of right to deprive the people of New Jersey of their full representation in this House. When the New Jersey casc arose more than a year ago, and that became probable which has since happened, or rather when that was most excessively apprehended which has since taken place, namely, that the election of a person to fill that Chair would depend on the exclusion of those five gentlemen from their seats, and the consequent sacrifice of their rights and of the rights of their constituents, I did conceive that there was a great question involved, to which there were two fair and equitable sides, and I came to the conclusion that this question should be adjudicated, not by caprice, not by arbitrary will or absolute power, but adjudicated according to law, before à Speaker should be chosen. I knew that this could not be done by the Constitution, by the laws, or by immemorial usage; I knew that those who brought returns in legal form must be sworn and could not be turned out of their seats but by the adjudication of this House; and I saw at the same time how inconvenient, if not impossible, it would be for the House to spare the necessary time for the citation of the parties, for the examination of evidence, for solemn argument, and that entire process which rightfully belongs to a court of justice," and is necessary to a judgment in conformity with truth. I saw that very plainly; so did others, and I offered a resolution with a view to see whether this painful extremity could not be avoided. I believe a gentleman from Virginia [Mr. CRAIG] has offered the same or a similar resolution since we met. Mr. CRAIG. The resolution I offered was the very same, verbatim et literatim. Mr. ADAMS. The resolution is now useless as respects this case, since the election of Speaker has been decided; and here I must be permitted to say that it seems, as if by a retributive act of Providence, that election has been decided precisely as it would have been if the five excluded New Jersey members had been admitted. Neither of the two great political parties into which this House is divided, was able to carry its own candidate, and a gentleman has been placed in the chair who would have been placed in it in that case, but with five more votes in his favor. Having a very high idea of the agency of Providence in drawing good from evil, I have not been | able to avoid some suspicion that this is a retributive Providence on us for the great waste of time which has here taken place to no useful|| end whatever; for, after all the violent struggle having for its ultimate object the filling of that chair, the self-same individual has been brought into it as he would have been brought there if all the commissioned members of the House had been allowed to vote, and there had been no trampling on Constitution, law, and immemorial usage. But the principle of my resolution was, and of the gentleman's resolution from Virginia is, in my opinion [Here Mr. ADAMS was interrupted by Mr. F. THOMAS, of Maryland, who made a point of order, the discussion of which occupied the House for more than an hour, but which terminated in Mr. ADAMS being permitted to proceed.] Mr. A. proceeded. I am sorry, Mr. Speaker, and somewhat surprised, that the gentleman from Maryland, [Mr. THOMAS,] should be so excessively uneasy at the few observations I have submitted, and that he should be so apprehensive as to the few which still remain to be made; and that he has thought proper to consume so much time upon what I consider to be an exceedingly frivolous question. As to the first part of the motion made by the gentleman from Maryland, [Mr. W. C. JOHNSON, namely, whether the previous question is now in order or not, I have nothing to say. The subject is too small, too trifling, for me to consume time upon it. What I speak to, is the second part of the motion. It is that which makes the point that, until the members from New Jersey are sworn, this House can, by the Constitution and laws, proceed to no other business. I say I was in order in speaking to that part of the motion, and that I can speak to it. Of course, therefore, when the gentleman from Maryland, [Mr. THOMAS,] moved that I have leave to proceed in order, according to his views of "in order," his motion was, substantially, that I should be gagged. If I am to proceed according to his notions of "in order," I had better take my seat, and say nothing. I am exceedingly happy that the House has come to the conclusion to hear me, and I will not abuse its indulgence.by occupying very much more of its attention. In the course of this discussion, it has appeared that it is exceedingly objectionable to some gentlemen here to hear appeals made to the Constitution and laws, and immemorial usage, for the purpose of securing to the people of the United States their right to a representation in this House. I can readily conceive that these are grating sounds on the ears of some gentlemen, and that to hear them once is enough; but to hear them time after time, as I think they ought, until they hear their effect, that is still more disagreeable, disgusting, and tedious. I am happy that that is not the temper of the House, but that we may still appeal to the Constitution and laws and immemorial usage, in remonstrating against that enormous encroachment upon them, the exclusion, the expulsion of five members from this House, who, by the Constitution, the laws, and immemorial usage, are entitled to their seats as much as any other gentlemen here. Ho. OF REPS. When I was interrupted by the exceedingly candid gentleman from Maryland, [Mr. THOMAS,] who is willing to let me proceed "in order," according to his views of order, I was referring to a resolution which I offered in this House at the last session of Congress, and which, I believe, is now before the House in the shape of a resolution offered by the gentleman from Virginia; and I was proceeding to state that I did think there was a great and important question between the parties. I am now speaking to the duty of the Chair-to its duty to swear in the members from New Jersey before anything else is done in this House; and I speak to it in order to express my conviction that that is a duty, to the performance of which he is bound by the Constitution of the United States, by the laws of the United States, by the immemorial usage of the United States and of the British Parliament; and that no resolution or vote of this House can interpose between him and the performance of that duty. I was about to proceed to say that that important question (which I did believe to be of very great importance, and which I did hope this House would find some means of settling before we came together) has, in point of fact, lost all its importance; because the Speaker has been chosen, and because the question is no longer before the House. Now, I can conceive that a member of this House, with a high respect for the Constitution, the laws and usages, while the question of Speaker was before the House, may still say there is, after all, behind that, a question as to the will of the majority of the people of New Jersey in the election of their members to represent them in this House. And, sir, I am willing to concede to the gentleman from Virginia, [Mr. DROMGOOLE,] who argued the point, a day or two. since, that this House had the power to proceed to try and adjudicate the question before the Speaker was chosen. I concede it to him; but then I say that, if they do so undertake, to decide that question before a Speaker is chosen, they must do it upon the constitutional principle as judges, not by their will; but that they must act under the authority given to them by the Constitution to judge of the elections, returns, and qualifications of the members of this House. And I further say that, if they do it in that manner, they cannot do it without a trial, without hearing the parties, without receiving evidence, without hearing arguments, and that it must be a judicial act, and not an act of autocrats. Well, the House has chosen to do it otherwise; and that there might be no failure of any incident to stamp upon them the inconsistency of their act, they have done it with a resolution on their table, (not yet repealed,) which was offered by the gentleman from South Carolina, [Mr. RHETT,] that this House would proceed to try and determine the question before the election of Speaker. That resolution is still before the House unrepealed. In has, to be sure, been violated. The election of a Speaker has taken place. By an arbitrary act, not by a judgment-for there has been no judgment, no trial, no hearing of parties, no reception of evidence-but by a naked autocratic act, it has been decided that the five members from New Jersey shall not be permitted to vote in the election of Speaker. Now, I say that that House unconstituted, or this House constituted, had no right to pass such a resolution; and I say this, that it is the duty of the Speaker, prescribed by the Constitution, prescribed by the law, prescribed by universal usage, to perform that duty, and that it is not competent for this House, by a unanimous vote, to release him from the performance of it. What is the alternative? What are we to suppose? We are to suppose that the power of voting to every member depends on the will of the majority, and not upon the Constitution and laws; for, upon the same prin ciple, by virtue of the same process by which it was determined that the members from New Jersey should not vote-by the same authority, I say, my friend from Maryland [Mr. THOMAS] might have had a sure way to stop my mouth by moving that I should not be permitted to speak or vote; and then a tie according to the precedent, on the question whether I should vote or not, would have expelled me as it has expelled the five members from New Jersey; and as he could |