substance, upon the whole case, on its merits; you, constituting the grandest judicial inquest and tribunal in the nation, you are about to do this before trial and without trial; and you then propose to go on afterwards with the solemn mockery of a hearing, with nothing left for you to do at the end, if the case turns out as you hope and believe it will, but simply to adopt some mere formal recognition of your own foregone and recorded judgment.

that this same evidence, if sufficient to exclude the return members until the whole case shall be heard, is sufficient also to put the claimants in their places until the whole case shall be heard? Indeed, does he not see that there is no evidence whatever to impeach the title of the return members, except that which goes to establish the adverse title of the claimants? That, in truth, the validity of the adverse title is the conclusion to be drawn from the evidence, if any can be, and Honorable gentlemen, with a show of great that the failure of the other title is merely an moderation and candor, have been free to confess inference from that conclusion? The argument that, in their opinion, these claimants of seats of the gentleman proves too much-much more ought not themselves to be admitted until they than he intended, I think; for I have not yet have made out their case upon the trial. Really! understood that he is prepared to go at once for But, in the mean time, you think it perfectly just the admission of the claimants, though he is preand proper to begin the process with turning out pared to go for the exclusion of the members the return members. Now, do you not see that who are in their places. But upon what prinyou do not, and cannot, take such a course, upon ciple, I ask again, will he venture to adjudge and the supposed weakness of their title? That their decide upon any part of this case? By the very title, indeed, is not only not weak, but that it is terms of your proposition, you admit that a part perfect, unimpeached, and positively unimpeach-only of the evidence, and not the whole, is before able, except by supposing that their adversaries have a better title, and were themselves elected? Upon this supposition-this faith, this foregone conclusion-and this only it is, that you entertain even a suspicion of the title of the return members, and that you are willing to aid in ejecting them from their places. And therefore it is that I now invite you-I now call upon you, to be consistent, and take courage enough to go on, and act the doctrine out. Your judgment is, if it mean anything, that the party who is out, according to the present prevailing inclination and faith of your mind, has the better title-has the title; and of course, that the party who is in has none. Now, I say to you, be men, and execute the whole of this judgment, if you really mean to execute any part of it. If you turn out one party, put in the other-do it; for I tell you, you have not the shadow of pretense or excuse for turning one party out, but because the other party has a right to come in. Put them in, then -do it! Do not be alarmed for the result or the consequences. If your present foregone conclusion shall turn out to be right upon the facts, the whole judgment is already executed to your hand. For form's sake, you may then recognize and confirm it. And if it be otherwise-if the facts in the case shall perversely fail to bear you outwhy, what will it matter? It is but the reversal of a judicial decision after hearing, which it was convenient to you to pronounce before hearing if it must come to that, which there are many chances of your avoiding, after all; and, in the mean time, the present is safe enough. Five party votes against you are got rid of, and five party votes for you are secured, for two, or three, or six months, as the case may be; the present is made sure-let the future take care of itself. Do it, then, I invite and advise you-do your whole will in the case, and not merely the half of it-do it!

Mr. Speaker, an honorable and learned member from Virginia, [Mr. DROMGOOLE,] in the remarks with which he favored the House yesterday on this case, argued to us, with much sincerity and earnestness, that a House of Representatives, once organized and qualified according to the Constitution, has the power and right to go into evidence, on a question of contested election, out of or behind the return. Sir, nobody, I believe, at this day, doubts or disputes that proposition; and the honorable member might have spared himself the pains of quoting so many authorities and precedents to prove it. But it is one thing to show that your court has competent jurisdiction and power to try and determine a great judicial question, and quite another thing to maintain that that court may adjudge and execute first, and hear and try afterwards. And this is what gentlemen here propose that this tribunal shall do; nay, this is what the honorable member himself maintained, in substance, that this House ought to do. We have before us, said the honorable gentleman, some evidence in the case touching the point of the contested election, and we may now act upon that, so far at least as to exclude the return members from their seats until the whole case shall be heard. Upon what principle of justice or right will you do this? And does not the gentleman now see

you; and you, sitting as a judge, with the oath
of Heaven upon you, will decide now, and hear
the rest of the matter afterwards! You will
decide, as I say, the whole case now, or, as you
must admit, at least a principal point in the case,
and afterwards-yes, afterwards-proceed regu-
larly to the trial! But, besides, you talk of
evidence as if really there was any evidence
whatever yet in the case. Sir, there is none-
not a particle. Do not tell me of the certificate
of the Secretary of State of New Jersey. Another
man-any other man-had as much legal right
to make that certificate, for the uses to which it
is here attempted to be put, as he had; nay,
there is not a poor beggar in the streets, betwixt
this and Trenton, who has not as much right,
legally, to certify the members returned from
New Jersey, out of their seats, in this summary
way, as this Secretary of State had. Evidence,
indeed! Judicial minds, methinks-judges -
should demand something very different from
this when they would have evidence.

Sir, the proposition of the gentleman from Vir-
ginia, that we should receive and act now upon
what he calls the evidence before us, is identical,
in this particular, with that offered a few days
ago by an honorable member from South Caro-
lina, [Mr. PICKENS,] and in which that member
was ingeniously supported by an honorable col-
league of his, [Mr. HOLMES;] but it should be
said, in justice to these gentlemen, that they
would have made this "evidence"
cover the
whole case; they would not have rested with the
exclusion of the members who were in, but they
would have brought in the claimants upon it to
fill the vacant places.

66

The position of the honorable member [Mr. PICKENS] was briefly this: that it was competent for a body of representatives, without any organization whatever, not, indeed, to go into the question of contested election, but to determine upon evidence who of the parties contesting seats were entitled to the return;" and he thought that the evidence before us, in the present case, was sufficient to settle that question conclusively in favor of the claimants. It would be difficult, I think, to find another instance where an ingenious mind was more entirely deceived and misled by a mere form of words. What did the honorable member mean when he proposed that we should look into the certificate of the Secretary of New Jersey to see "who were entitled to the returns?" He admitted that we could not, in the state we were then in, go into the merits of the election, and yet we might decide who were "entitled" to the returns. I pray to know, sir, who were ever, at any time, strictly entitled to the returns but those who were actually elected? The State officers furnish to the members, and through them to us, according to law, and by a power expressly confided to them under the Constitution, their decision, in an authentic form, as to who were "entitled" to the returns; and this is conclusive, until the House of Representatives, duly organized and qualified, shall revise and reverse this judgment, upon proper proof and due deliberation. When that is done, then there is a new judgment as to who are "entitled" to the returns; but this is a judgment upon the election, and nothing less. And when the honorable

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member proposed, therefore, that we should undertake to ascertain who were "entitled" to the returns, it was only proposing, though not himself, I dare say, aware of it, that we should try the election question on its merits, and try that question, too, upon evidence that strictly was not evidence, or, at any rate, upon evidence that was known and acknowledged to be partial and defective. The proposition itself, in terms, was presented with the knowledge of the fact that the evidence, such as it was, could only carry us forward to a certain point in the case, and there it would leave us. In short, it would bring us to this notable conclusion, standing uncontradicted, that the majority of votes actually cast in the New Jersey election, counting all, good and bad, legal and illegal, legitimate and fraudulent, were given for the claimants; and upon this finding we must admit the said claimants as being "entitled" to the returns. The allegation of fraudulent and illegal votes in the case, and a great many of them is distinctly made, and nobody pretends to question the fact; and yet we are to go on and decide, in a judicial way, that those gentlemen are "entitled" to the returns, and to their seats here, who had succeeded at the polls in securing for themselves the greatest number of these fraudulent and illegal votes.

And why must this flagrant and foul injustice be done, and why must we do it? Verily, because this is now found to be the Constitution and the law! It is now discovered, after a necessary and uniform practice to the contrary for fifty years, that though the State laws, passed in obedience to the requirements of the Constitution, may authorize State functionaries to "hold" elections for Representatives in Congress, yet these functionaries can have no constitutional power to judge, even in the first instance, of the qualifications of electors, or of the result of a canvass. Their duty is to receive the votes that are offered -all of them, bad and good, and count them all up, and there their duty ends. They cannot ascertain and certify any result; they cannot make a return, or, if they do, such return is to go for nothing. It is the business of the House, according to this new doctrine, as a preliminary measure, before any organization whatever, getting at the facts as best it may, to cast up the votes which have been given, find where the majority falls, and thus determine and adjudge who, in the first instance, are "entitled" to the returns, reserving the important business of purging the poll-lists of the frauds with which they may be tainted, to a later and more convenient season. And this new doctrine is found, we are told, after a careful analysis of the Constitution, by which a prevailing confusion of ideas on the subject is dissipated. And there is no confusion of ideas in supposing that to judge of the "returns" of members is to determine who are "entitled" to the returns, and that to determine who are "entitled" to returns is not to judge of the "elections;" no confusion in supposing that a body of gentlemen should come together to form a House of Representatives, not one of whom has any right or title to sit and act as a member until the House, not yet composed, as it cannot well be without members, has passed upon his pretensions, and determined that he is entitled; no confusion in supposing, as the gentleman did, that though the Constitution requires the members to take an oath, yet, as it does not specify when that oath shall be taken, the injunction will be well obeyed if the oath be taken, without regard to the time when; in other words, it may as well be taken in June or July as in December, as well on the last day of the session as on the first; and, in the mean while, a positive statute prescribing that the oath shall be taken "before the transaction of any other business," need not be brought into the account at all; no confusion, in short, in supposing that you may have a House to judge without members; that judges may as well be sworn after judgment as before; that a judicial tribunal may have power expressly given it by the Constitution to decide a cause upon hearing one half the testimony, and that half authenticated in no legal manner whatever; at a time, too, when it has no constitutional authority to hear the whole evidence-in other words, may have power to do a great wrong, but no power to do right except by accident; and,

26TH CONG....1ST SESS.

New Jersey Contested Election-Mr. Barnard.

finally, that the House of Representatives is directly instructed by the Constitution to admit to their seats, in the first instance, those persons, in all cases, who shall have received, in the elections, the greatest number of votes, counting all, the bad and the good together, and to admit such persons, therefore, as should have been, or should be, by themselves or their friends, most unscrupulous and most successful in practicing a gross fraud and outrage on the sacredness of the elective franchise and on the purity and majesty of the laws! In all this there is no confusion of ideas, all this is the result of a careful analysis of the Constitution.

Mr. Speaker, the honorable gentleman from South Carolina goes with the rest for excluding the return members from New Jersey from their places on this floor: let the House, let the country judge, if he offers a better reason for the measure than the rest. To my mind it all comes to the same thing. Gentlemen agree well enough in their conclusions, though some may travel a long road, while others take a short cut to get at them. They agree that the members from New Jersey, as much in office as themselves, must be excluded. Judgment must be pronounced, and execution had now, and by-and-by there shall be a regular and satisfactory trial.

Perhaps, sir, the briefest mode of arriving at this same practical and necessary result which has been suggested by anybody, was that presented yesterday by another honorable and distinguishable gentleman from South Carolina, [Mr. RHETT.] He suggests that the resolution now before us contains a proposition, if now identical, equivalent to one already passed upon and decided, and which is of binding force and effect upon this House. His position is, that the proposition is "res judicata;" that it has been decided, and that the decision was in the negative; that this House has pronounced its judgment against the admission of the return members to their rights and privileges on this floor as the Representatives from New Jersey-at least until the point of ultimate right upon the election shall be determined. It must be remembered that upon the former resolution to which the honorable member refers, the members, when the resolution was put to the vote, were found to be equally divided. Of course, says the gentleman from South Carolina, it passed in the negative.

Mr. RHETT rose and asked for the reading of the resolution referred to; and it was read as follows:

66

Resolved, That the credentials of the follow'ing members, John B. Ayerigg, John P. B. 'Maxwell, William Halsted, Charles C. Stratton, and Thomas Jones Yorke, are sufficient to en'title them to take their seats in the House, leaving 'the question of contested election to be afterwards decided by the House."

Mr. BARNARD proceeded. Such was the resolution, Mr. Speaker, and such, I repeat, as I have explained, was the plain converse and negative of the propositions contained in it. This converse and negative, says the honorable gentleman, was established and decided by the body which passed, by a vote, upon the resolution. In short, then, that body decided that before the return members from New Jersey should be admitted to their seats and allowed to act in the appropriate business of that body, the House, as then constituted, would go on, and, in its own way, determine the question of the contested election.

Mr. Speaker, if the inorganic body of Representatives-I use the term advisedly, sir-did thus resolve, then, whether binding on this House or not, at least it would seem it must to have been binding on themselves. What did that body do? How did they regard the position in which they found themselves after the vote on that resolution? How did the gentleman himself and his friends, the political majority in that body, conduct themselves under that decision? Sir, that decision, if made, threw the House back upon the precise position it had occupied a short time before, when a prior resolution, moved by the honorable gentleman himself, had been put to the vote, and passed by a clear majority. A brief recital of events will show what that position was, and what was done under it.

This House was thrown into its original embarrassment in regard to the New Jersey question by the refusal of the Clerk of the House to perform the plainest ministerial duty which was ever imposed by constitution and laws on a public officer. He refused to call five members returned from New Jersey. Upon this, after a delay of some days, it was proposed, in the form of a resolution, that the Clerk should proceed to call the roll of members returned as elected to the TwentyNow, in the first place, I must deny, in a man- Sixth Congress in the usual way. This resoluner the most solemn and explicit for me to do, tion was laid on the table, on the motion of the that a vote of a tribunal acting judicially, in a gentleman from South Carolina, [Mr. RHETT.] matter affecting either personal or representative And, thereupon, it was moved by the same genrights, ever had, or ever can have, the legal effect tleman that a proceeding equally unusual and of a judgment where the members are equally extraordinary should be adopted. A resolution divided in opinion, whatever may be the form of was adopted, on his motion, first, that the Clerk the question. Nothing is, or can be, decided in should proceed to call those members whose seats that way. The matter stands as if no vote had were not contested; and then, that such members, been taken. The House of Representatives, act- being a quorum, should, before the election of ing judicially, can no more put a man out of office, Speaker, proceed to hear and adjudge upon the or put a man in-can no more change the incum-elections, returns, and qualifications of other perbency of an office, temporarily, or permanently sons claiming seats in the House. The roll of and finally, without a vote, affirmative in effect, members occupying uncontested seats was then whatever form it may assume, by a majority of called, and a quorum was formed; and it then voices, than any other judicial tribunal, any court remained to carry the latter part of this order of of competent jurisdiction in the land, could do the body into effect. And so it was actually the same thing without such majority of voices. attempted to be done. A resolution was offered and carried, that a committee should be raised for this purpose. Yes, carried! And honorable members were actually casting about, some of them, at least, to make their ticket, preparatory to the election of that committee! But, sir, that solemn farce-no, sir, that solemn revolutionary proceeding-was suddenly arrested. Gentlemen were appalled at the position in which they had placed themselves. They had gone as far on that road as they dared to go, or could go. The Constitution and the laws began to thicken and darken in the way before them. It was obstructed, absolutely blocked up. The end could not be seen; night, thick night, was brooding over it; there was not left a solitary, distant star to twinkle on that new, untrodden path. They hesitated; they retreated; they returned. By a unanimous vote the resolution for the appointment of a committee was reconsidered; and then was presented that resolution offered by the gentleman from Virginia, [Mr. WISE,] upon which the tie vote, which has been referred to, was taken.

But, sir, while I make this denial in regard to the effect of a divided vote in the case referred to, I will take leave to recur for a moment to the resolution which has been supposed to be so identical with that now under consideration. That resolution did not embody a simple proposition; it declared, first, that the credentials of certain persons from New Jersey were sufficient to entitle them to take their seats in the House. And, second, that the question of contested election ought to be left to be decided afterwards. Such were the affirmative propositions stated in this resolution, and the resolution was voted upon entire. What, then, was the converse of these two propositions taken together, and which, it is contended, was established and decided by a negative inference? Why-to present the converse in a reverse but proper order-that the question of contested election ought to be decided now, and before the members from New Jersey should be admitted to their seats, and therefore they should not take their seats upon their credentials alone.

Now, sir, recurring to that resolution, we see

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what it was that body, by plain inference-if the position of the gentleman from South Carolina as to the effect of the vote upon it be correctresolved to do. By a double obligation, having passed two separate and distinct resolutions to the same effect, that body determined, in substance, that they would proceed to hear and adjudge, before the election of Speaker, on the returns, elections, and qualifications of all persons claiming contested seats in the House. This was what was deliberately and twice resolved to be done. And now, how did that body act on their own resolutions? How did they follow up and obey their own orders? Did gentlemen then go on, and make another effort to try the New Jersey question on the merits? No, sir, they had enough of that. To permit the members returned from New Jersey to occupy their seats, as they were clearly entitled to do, was not to be thought of for a moment; and to enter into any investigation of the case was as little to be thought of. It was easy enough to resolve to investigate, but not so easy to do what was resolved should be done. There was an ugly knot in the case, and, as it could not be untied, it was cut. In the face of their own order, twice given, and binding upon nobody but themselves, gentlemen turned short round, and resolved to proceed without further delay to the election of Speaker. This resolution was executed, and a Speaker was chosen, the votes of five members from New Jersey having been early in the canvass refused and omitted in the count.

And now, what is the proposition of the gentleman from South Carolina, [Mr. RHETT?] Why, simply, that a resolution of that body, which had had an anomalous existence here before the election of a Speaker-a resolution which the gentleman himself, and his friends, composing a majority, declined and omitted to regard as having any binding force or effect, in one of its most important features, even on themselves, by whom it had been passed-that resolution shall, in another feature of it, at least, be considered as revived and in full force, and binding on the House of Representatives now, at least partially organized by the election of a Speaker. With what kind of face can the gentleman ask us now and here to consider a resolution in force, which he himself, and a majority of the House with him, have heretofore, and when, if ever, it should have been deemed obligatory, repudiated in the most distinct and explicit manner?

But I have another objection to make to the res judicata of the gentleman from South Carolina. I plead to the jurisdiction. I do not recognize any authority in that body which passed, by vote, upon the resolution referred to, over this House of Representatives. The gentleman asked, with some emphasis, if not with an appearance of triumph, when arguing for the identity of this body with that which existed here before any organization-the gentleman asked: Does the election of a Speaker make a House of Representatives? I answer, sir, if it do not, yet you cannot make a constitutional House for the transaction of business without a Speaker. A House of Representatives, under the Constitution, is composed of members and a Speaker. Each constituent is essential to the other. It is just as necessary to have a Speaker as it is to have members. The Speaker of the House of Representatives is an officer of the Government, receiving his appointment indeed from the members, but deriving his powers from the Constitution and the law. Let gentlemen ask themselves what the members can do without a Speaker to perform his part in the business of the House. Can the House in the first place, hold, or begin to hold, its daily sessions, without a Speaker to take the chair? By the general parliamentary law the Speaker is to appoint committees, unless the House, bv a positive act, take the power out of his hands; and how can the House take power away from a functionary who has no existence? By the same general law, the Speaker decides questions of order, with which the House does not interfere, except by way of appeal. Can the members receive an executive or any other official communication, without a Speaker to receive the messenger or organ of communication? The

members may pass laws, but the Speaker must
sign them. They may order an arrest, or im-
prisonment, but the Speaker must issue the war-
rant, or commitment. They may order witnesses
to be sent for, but the Speaker must issue the
subpena. In short, gentlemen will find that
members, without a Speaker, are members, but
not a House for the transaction of business; and
if there were no other reason for it, it is suffi-
cient that, by the express terms of an existing
statute, there can be no House for business with-
out an oath, and there can be no oath without a
Speaker. For myself, therefore, sir, I cannot
consent to regard any order or resolution of a
body of representatives, assembled but not yet
organized, without a Speaker and unsworn, as
having any force or authority whatever over a
House of Representatives composed and organ-
ized for business, as this is now claimed to be,
according to the Constitution and the law. No,
sir, there is no res judicata in the case. Even
after you shall have voted now, in your present
state, by a majority, as I suppose you will,
against admitting the members from New Jersey
to the oath, and by which you mean to exclude
them from their seats, the case will be no more
res judicata in my opinion, than before. You
will have done an act by the physical power of
members, and the effect may be just what it ||
would have been if you had had the constitu-
tional authority to do it; but I tell you that an
arbitrary and lawless decree-a decision before
trial and without a hearing-is no judgment in
legal acceptation; that it wants all the sanctions
of a judicial determination, and is to be submitted
to just so far as submission is compelled or may
be politic, without compulsion, and no further.
Mr. Speaker, the honorable gentleman from
Virginia near me, [Mr. DROMGOOLE,] in the con-
clusion of his speech, demanded why it was that
we must have the members from New Jersey in
the House, so long as it was known to everybody
that their ultimate right was at least doubtful.
Why must we have somebody-why need we
have anybody to fill contested seats on this floor?
Why not wait till the contest should be decided?
Sir, my answer is a plain and direct one.
must have these members, because they are mem-
bers by the law of the land, as much as we are;
and because we cannot form a constitutional ||
House of Representatives without them. They
are here in office, by the same tenure and the
same authority by which we hold; they are here
as early as ourselves, and ready to unite with us
in composing the House. The Constitution gives
to New Jersey the right to have them here, and
if you can form a House under the Constitution,
without them, you can by the same rule, form a
House after lopping off as many more of us as
may suit your sense of propriety or convenience
taking care only to leave a bare quorum.

We

honest and dishonest, to set up a claim to their
seats. With what a tremendous power are you
here clothing any unscrupulous party which may
at any time be found occupying seats within this
Hall! Such party need give itself no trouble to
secure a majority here through the popular elec-
tions; it may create that majority for itself on the
spot. Finding itself short by a dozen votes or
so, it has only to procure claims to be set up for
the seats of an equal number of obnoxious mem-
bers, when the seats of such members become
vacant of course, and the whole thing is done.
And then we have only to get one step further,
and, in the progress of in-coming political cor-
ruption, suppose two great parties to meet here,
both equally unscrupulous, and of nearly the same
numerical strength, when, under the operation
and cover of this very rule which you are now
about to establish, they will go on, pari passu,
decimating each other's numbers, and neither
yielding in profligacy or obstinacy to the other,
until no quorum shall be felt, and the House, if
not the Government, be ipso facto dissolved.

Sir, I trust that no man respects more than I
do that feeling, wherever it may be found, which
revolts at the violation of the popular will, when
ever that will is legally and constitutionally ex-
pressed. I can readily understand, without
imagining anything sinister or improper, and I
can, therefore, pardon something of that zeal and
that pertinacious adherence to a mistaken and
fatal line of conduct, of which we have seen so
much on this floor; for I do not doubt that many
gentlemen came here believing, seriously and in
good faith, that the people of New Jersey were
likely to have their will trampled upon, and vio-
lated by the admission here of the return mem-
bers from that State. The mistake in the case
is, in taking for granted what remains to be
proved, and what can be proved in only one way,
and that is a way provided and clearly marked
out by the laws of the land. So far as the fact
has yet been legally ascertained, these members
are the persons, and the only persons, to repre-
sent the popular will of New Jersey; and if the
truth be otherwise, it will be found in time; just
in the time and the mode appointed by law; and
then the proper correction will be made. And I
would take leave to remind gentlemen, such as
honestly make much of the popular will, that
ours is a Government of Constitution and laws,
as well as a popular Government; and I know of
nothing, no, nothing fraught with higher danger
to such a Government, than that the Constitution
and laws should suffer encroachment and viola-
tion, under the pretense of serving or preserving
the ascendency of the popular will. I say to gen-
tlemen, preserve your Constitution, and your
Constitution will preserve and maintain the true
sovereignty of the people. But once depart from
the Constitution and laws, once give them up,
once let slip the cables, and drop off these anchors
into the great deep, and we are adrift, with our
last and only security gone. The moment this
is done, this Government becomes a Government
of men; ay, a Government of the strongest.
Occasionally, indeed, reason may lift her feeble
voice, and be heard; but the certain end will be
confusion, anarchy, and blood. Strike out the
Constitution, in any one essential feature of it;
do this, and you strike out the sun from our po-
litical firmament, and you leave all those ponder-
ous bodies, the States, the planets of our system,
to wander on in illimitable space, without any-
thing to keep them within their wonted and
proper spheres, and with nothing to prevent or
preserve them from those dreadful and destruct-
ive collisions which will inevitably follow.

Besides the point on which you rely to justify this proceeding is that you are advised that the seats of these members will be contested. The rule, then-a rule, so far as your precedent and example can go, which is to be established law hereafter the rule is that the House being informed, however informally, that the seat of a return member is to be contested, such member stands aside, by order of the House, till the contest shall be determined. I ask gentlemen to look seriously and steadily at the monstrous evils they are about to introduce by such a rule. Who does not see how easy a thing it must always be to get up claims to the places of return members, and very plausible claims, too? Nothing is more common, from one end of the country to the other, than elections decided by a very close vote between the candidates, and nothing is easier than to make allegations of fraud or mistakes in such cases, or indeed in any other cases. But accord-proceeding in case of a contest for seats here such ing to this rule, it is the mere setting up of claims, with or without foundation, which is to deprive members of their seats. Facts cannot be inquired into, because it is not possible to try the question in a preliminary and summary way. There is nothing for it but to take the mere allegations of the party making the claim, as enough to decide the matter. Denials must go for nothing. Members of the House regularly commissioned and accredited, must be thrust out of their places, as many and as often as there can be found men,

Sir, if this House, or the country, need a com-
mentary or a warning in regard to the course of

as has been and is proposed to be adopted on the
present occasion, they have that commentary and
warning in the history of the present House of
Representatives. What is that history? We
are now in the middle of the third week of an

attempt to organize the House, and the organiza-
tion is not yet completed. What has produced
this extraordinary and dangerous delay? Sir,
on the first day of the session, the Clerk of the
House, acting no doubt as he was advised and
instructed, having a plain and simple duty to

Ho. OF REPS.

perform which should have embarrassed nobody, suddenly came to a dead stand midway in his call of the roll of members returned here as Representatives. The position on which he rested was identical in substance with that which the majority of the House now seemed disposed to adopt and maintain. It was, that in all cases where members returned to this House are followed here by claimants with the avowed purpose of contesting the seats of such members, whether with reason or without reason, on good grounds or on no grounds at all—nobody, of course, can tell-in all such cases, such members are to be excluded from their seats until the question of ultimate right shall be decided. In the conduct of the Clerk, then, a mere ministerial officer, who arrests a high public proceeding, and for the time brings the Government itself to a pause, we see the first practical effect of this novel and dangerous doctrine. And what has followed this bold and unfortunate beginning? For four days the body of Representatives here assembled went on without a head, unless the Clerk might for some purposes be so regarded, preserved from confusion and violence only by an extraordinary exertion of mutual forbearance and moderation. An important change in the condition of the House was then effected. Pressed by a strong necessity, and a common sense of danger, the Hou resolved to escape, while it could, from the delicate and hazardous position in which it was placed. A yenerable member from Massachusetts, [Mr. ADAMS,] fitted by his age and his superior merits for the occasion and the office, whose long and eventful life had been one of devotion to his country and to mankind-who had once been called by the confidence of his countrymen to preside over and guide the destinies of the ntion-he was named, almost by acclamation, as the proper individual to preside over and preserve the order of the House, and was conducted accordingly to the chair.

And now a new spectacle was exhibited to the country and the world. We, the assembled Representatives of the nation in Congress, unable as yet to compose and form a constitutional House, had now resolved ourselves into a body, organized, indeed, in our own way, yet inorganic as a House of Representatives, because without organs known to the Constitution and the lawa body of congressional Representatives, with an extra-constitutional organization, drawn up in formidable and imposing array, with an extraconstitutional head, and standing, not on the platform of the Constitution, but standing without, at the portals of that great edifice of Government founded and reared by our fathers, with no flag waving over us but one that we may be said to have borrowed for the occasion, that we might seem to belong to a country and a Government, and to be acting in their name. Fearful condition for ourselves and for the countrythis body, this extra-constitutional body, lasted for ten days or more, and until, indeed, all felt and saw that its existence could not be protracted much longer, while the way of escape seemed only to grow more and more doubtful and difficult. A dark, mysterious, and impenetrable future was before us; and what man among us had courage to look over the precipice on which we stood, and peer into the deep, deep, fathomless gulf which yawned beneath our feet? Sir, the boldest shrunk back. The hope of escape to which all clung, though none could tell how that escape was to be effected-this hope, and the efforts it inspired, finally saved us; and let us, one and all, thank God devoutly for our deliver

ance.

Now, I appeal earnestly to gentlemen, shall not the past suffice? I beseech, I implore them, by the difficulties we have just encountered, by the appalling dangers we have just escaped, not to pursue their doctrine and policy further; not to go on, and, by a solemn and deliberate decision, establish a precedent for a course of proceeding which has been found productive of nothing but difficulty and peril in its first practical workings, and which, if persisted in now, bids fair to rise up before the assembled Representatives at the meeting of the very next, and every new Congress, to produce a repetition of

26TH CONG....1ST SESS.

Armed occupation of Florida-Mr. Clay, of Alabama.

the delays, embarrassments, and dangers which we have experienced, and to end, finally, nobody can tell in what disaster and ruin. For the sake of peace-for the sake of order-for the sake of the country-for the sake of freedom, of constitutional, American freedom, and freedom all over the world, I beseech gentlemen to pause. Let them pause. Let them not tread one step further the perilous way they have attempted. Let them return to the plain and pleasant ways of the Constitution and the laws; and then, and then only, shall they, or we, or the country, be

safe.

ARMED OCCUPATION OF FLORIDA.

SPEECH OF HON. C. C. CLAY,
OF ALABAMA,

IN SENATE, January 8, 1840,

On the bill for the armed occupation and settlement of that part of Florida overrun by hostile bands of Indians.

Mr. CLAY said that when he made the motion for adjournment yesterday, it was not his intention to address the Senate on this subject to-day; but, on reflection, he had determined that he would now submit some views, which he hoped might not be wholly unworthy of consid

eration.

also reflects censure on the military officers who
have been engaged in it.

Mr. PRESTON explained. He said directly
the contrary. He had said that some of the offi-
cers had behaved with great gallantry, and in-
stanced Generals Scott, Clinch, and perhaps
General Taylor.

SENATE.

ated the war in another campaign? Several campaigns, under the direction of other commanders, have since taken place, and the objects of the war have not yet been attained-consequently, when the gentleman from South Carolina insists that General Scott would have accomplished those objects in one more campaign, if he had not been recalled, he indirectly casts censure upon other officers equally skillful and meritorious. At all events, let the gentleman show what would have been done by General Scott, that his successors in command have not done.

Sir, (said Mr. C.,) some allusion has been made by the Senator from South Carolina to the conduct of the Creek war; and as I happen to know, personally, many of the circumstances under which General Jesup acted on that occasion, I feel it my duty to refer to them. If they had been fully known to his commanding general, I have little doubt they would, as they should, have called forth commendations instead of censure.

Mr. CLAY resumed. He said he was aware there were some exceptions from the Senator's denunciations; but (he said) he certainly felt justified in saying the Senator from South Carolina did reflect on the conduct of some of the officers, and more particularly that of General Jesup. The gentleman alluded unfavorably to that officer's conduct in the Creek nation, and to the manner in which be had been made to supersede General Scott, and to the unfortunate results of his operations while commanding in Florida. Mr. C. also said he recollected that the Senator had arraigned his conduct on a former occasion, and had represented it as not worthy of an American officer. Mr. C. said he would take that occasion to say of General Jesup what the Senator Had General Jesup been disposed to take up himself might have known if he had looked back the line of march from Tuskegee, the headquarinto the history of those matters, that, before he ters of the Alabama volunteers, with any undue left the command of the army in Florida, he had haste, he might have done so four or five days requested a court of inquiry into his conduct, sooner than he did. He had a sufficient number which, however, was deemed unnecessary, and of troops in the field to have fought every Creek declined by his superiors. I will go further, and Indian then in arms against us; he had arms, say that General Jesup is now willing, and at all munitions, subsistence, and the means of transtimes prepared, to defend his character and jus-portation. Independent of seven or eight hundred The Senator from South Carolina [Mr. PRES- tify his conduct in that war, and, indeed, his Alabama volunteers, then under his immediate TON] who addressed us on yesterday, (said Mr. whole military course in the South, before any command, and a still greater number at Irwinton, C.,) now occupies a position very different from court of inquiry that may be instituted here or he had secured the coöperation of the powerful the one in which he stood, and utters sentiments elsewhere; or before a committee of the Senate, chief Hopoth-le-Yoholo, with some fifteen thouvery much at variance with those he seemed to should the gentleman think proper to move an sand friendly warriors; and knew he would be entertain, about eighteen months since, when investigation of that character, or, should the joined on his march by an additional battalion of the bill making appropriations for the further Senate think proper to appoint one for that purmounted men then on their way. His troops prosecution of the war in Florida was under conhad been some time in camp, were in danger of pose. sideration. At the time referred to, he not only But the Senator from South Carolina has taken becoming sickly, impatient for active service, censured (with very few exceptions) all who occasion to bestow much commendation on the and liable to that discontent which long delay were in any manner connected with the manage- course pursued by General Scott, and insists that universally produces with the best, citizen solment of the war, but declared substantially, that if he had not been removed from the command, diery. In the mean time he had ascertained from before one cent more was appropriated for its in all probability, not more than another cam- a source that merited the highest confidence, that further prosecution, an investigation ought to be paign would have been necessary to terminate the Tuckabache-Hadjo, a popular chief, was vascilinstituted, as to the prodigal expenditure of the war. Now, what are the facts? Did not Gen- lating as to his course-balancing between a public treasure, which, he said, had already then eral Scott begin the war with what every one union with the hostile Creeks or the whites, and taken place, and also as to the causes of the dis- deemed a competent force? He had the regular that, if he had joined the enemy, he would probgraceful failures of former efforts to subdue the troops, which had been under the command of ably carry over with him some two thousand warenemy. Now, sir, what is the Senator's present General Clinch-the troops brought into the field riors. This chief was a brother of Nea-Micco, a position? He not only considers this bill wholly by General Gaines-and, if I mistake not, had principal chief, who was already at the head, and inefficient and unequal to the accomplishment of authority to call, in his own discretion, upon Geor- encamped with a portion of the war party. Such the object intended by its passage, but he is now gia, Alabama, and some of the adjacent States, a union was greatly to be deprecated; it would willing to vote for an army of any number-say for any additional volunteer militia force he might have rendered the enemy formidable indeed, and ten thousand-fifteen thousand-nay, the gen- deem necessary. He did have troops from both would very naturally have rallied against us tleman went so far, if I am not mistaken, as to the States named, and probably from some others. much the larger portion of the fighting men in profess a willingness to vote for an army of The Indians were then concentrated, or, at least, the nation. Under such a state of things, not twenty thousand men; and this without any in- in large bodies, and, Mr. C. believed, generally a moment could have been justifiably lost: it vestigation, and notwithstanding all his charges ready to give battle. He said he would not pre- became the duty of General Jesup to take such and complaints of extravagance, in relation to tend to speak with much confidence as to what steps as would strike terror into the enemy the manner in which the war has been hereto- might or ought to have been done under the cir- already in the field, and deter others from augfore conducted. He (Mr. C.) was constrained to cumstances stated; but he might be permitted to menting his force. Fortunately for the country consider these views of the Senator from South speak of results, and from them gentlemen would at large, more especially for Alabama, General Carolina as wholly inconsistent, and irreconcil- be able to form some opinion, as to the accuracy Jesup promptly determined on the proper course. able with those which he formerly entertained of the Senator from South Carolina. General There were two routes leading from Tuskegee and expressed. Why, sir, (said Mr. C.,) the Scott formed his own plans, for aught he knew, to Irwinton, whither (Mr. C. believed) General Senator has represented to us that the expenses very judiciously; he marched his army through Jesup was ordered to march and join General of the Florida war, from its commencement to the country in various directions, exhibiting an Scott, the most direct of which led near the enthe present time, amounts to some twenty or imposing force, fighting battles whenever the campments of the enemy. During this march twenty-five millions of dollars, which he very occasion offered, and, no doubt, always ready to General Jesup captured Neamathla, the life and properly considers enormous; yet, almost in the give battle; but was the enemy subdued? No-soul of the war party, with his son. The celesame breath, he professes his readiness to raise so far from the fact, or any indications of it, on an army that would exceed his highest estimate the part of the Indians, they fought his volunteer in a single year. When the Administration pro- troops out of the Territory at the close of the camposes the expenditure of more money to effect-paign, on their return march, at least those from uate the objects of the war, it is all wrong; too much has already been expended; and when the Administration proposes to economize, to stay the hand of prodigality, as the Senator formerly characterized it, and pay for the conquest of the country in a small portion of the land, it is still all wrong; the measure is entirely inefficient; the gentleman would now have us pour out the public treasure, to the amount of millions, more than has ever before been expended! So frequently do the views and sentiments of the Senator change, that it may be well questioned whether the Administration can devise any measure that will meet his approbation.

But the Senator from South Carolina not only abuses the Administration for the manner in which the war in Florida has been directed, but

Alabama, and Mr. C. was under the impression
those from Georgia also. Yes, when the volun-
teer regiment from Alabama were on their return
to Tampa Bay, from a fort then called Alabama,
(now, he believed, called Fort Foster,) about
thirty miles distant, to embark for their home,
they were attacked by the Indians in great force
at Clonotasassa, and fought one of the hardest
battles of the whole campaign, which continued
about an hour and a quarter; and, although we
had a glorious victory, it resulted in the loss of
many valuable lives. Such, sir, were the indica-
tions of a speedy and triumphant close of the
war, at the end of the first campaign. Then what
ground is there for saying that General Scott
(from whose reputation as an officer he had not
the slightest wish to detract) would have termin-

||

brated chief alluded to was the master-spirit, who had raised the storm, and he alone was able to ride and direct it. This well-timed and most fortunate capture struck terror and dismay into the hostile party, and at once terminated the war. In a few days afterwards they were all captured or subdued; the white inhabitants restored to their homes, and pursuing, in safety, their usual avocations. Suppose it had been contrary to orders, (which, however, Mr. C. denied to be the fact so far as he was informed,) is there any Senator present who would not be ready to justify a departure from the prescribed line of march, under such circumstances, when it was certainly to be followed by such happy results? By this fortunate and prompt movement, a war, which had been commenced with one of the most powerful and warlike of the Indian tribes, was terminated without bloodshed, (after the troops were in the field,) which might otherwise have cost thousands of valuable lives, and have been as protracted,

Armed occupation of Florida-Mr. Clay, of Alabama.

hostilities as we have heretofore done.
most melancholy account and gloomy detail of
operations during the last year, General Taylor
adds the following remark:

"And should the war be renewed, (which I most
sincerely hope may never be the case,) the only way
'to bring it to a successful issue, in my opinion,
is to cover the whole country, so as to prevent
the enemy from hunting and fishing.

This, sir, is the very language of despair. He
deprecates its continuance, and sincerely hopes it
may never be renewed. Yet, sir, all this is right as
regards General Taylor, in the judgment of the
Senator from South Carolina, [Mr. PRESTON.]
No blame is to be ascribed to the present com-
manding general, but it is to the inefficiency of
the measures of the Administration we are to
ascribe all our failures. Now, sir, while I will
not cast censure upon others, with my limited
means of information as to the mode of conduct-
ing the late campaign, I beg leave to invite the
attention of the Senator from South Carolina,
and others, to the facts as contained in the official
report of the Adjutant General, with the sanction
of the General "commanding-in-chief." He said
it would be found in the "Return of the Army
employed in Florida against the Seminole In-
dians, under the command of Brevet Brigadier
General Zachary Taylor," there were the follow-
ing number:

Second regiment of Dragoons....10 companies.
Third regiment of Artillery...... 9
First, second, sixth, and seventh
regiments of Infantry, ten com-
panies each, making.............
Aggregate of regulars.
Besides Florida mounted militia..10
And making a grand aggregate of..69

will be found, by reference to his report, that he
gives it his express sanction. The following is
the passage to which I allude:

·

"The passage of the bill introduced in the 'Senate during the last session, and partially acted upon in Congress, for the military occupation of Florida, would, it is believed, be attended 'with beneficial effects; and I further recom'mend that authority be given to the Executive to raise one thousand men, to serve during the war in Florida, who shall receive the pay of 'dragoons, and, upon its termination, a bounty in land. These men it is proposed to arm and equip, and drill in a manner to render them equal to the Indian warriors in vigor and endurance, and to employ them in active operations 'during the ensuing winter. The exigencies of the service at this particular juncture, compel me to ask this additional force. It will be seen 'that the state of the western frontier requires 'the forces there to be increased rather than 'diminished, and the condition of the Canada 'frontier will not allow the withdrawal of the 'troops at present stationed there."