how to vote, whether to lay them on the table or not. If Senators will allow the papers to be read I presume I shall then vote for the motion of the Senator from Michigan, but I think we ought to hear the papers read. They are brief.

Mr. POMEROY. It seems to me another question of order might be raised, whether it is proper to read the credentials of men who are dead.

Mr. HENDRICKS. I should like to know how many questions of order are in order.

Mr. POMEROY. I had information which satisfies me, and I think it is a matter of public notoriety, that Mr. Jones is dead, and one of the credentials offered by the Senator from Kentucky relates to Mr. Jones.

Mr. SHERMAN. How do we know whether they are the credentials of Mr. Jones or Mr. Smith until they are read?

Mr. POMEROY. They have been here for two years. It is not the first time that they have been presented to the Senate. Every Senator has heard them read before this.

Mr. HOWE. Mr. President, it strikes me that there is another question of order that might be raised

The PRESIDENT pro tempore. We will decide one question at a time.

Mr. HOWE. Will the Chair indulge me in a single suggestion?

The PRESIDENT pro tempore. We will begin at the beginning, and we will hear no argument until this is decided. Then the Senator can appeal and argue the appeal, but not till the Chair has decided the question.

Mr. HOWE. I have not heard anything to appeal from yet.

The PRESIDENT pro tempore. The Senator from Kentucky offers papers and asks that they be read to the Senate. The reading is objected to, and a motion is made to lay those papers on the table without knowing what they are. That is a matter under the control of the Senate, and the rule is that that question is not debatable. The motion, I suppose, is in order. The Senate may lay papers that it knows nothing about on the table for aught I know, if they see fit to do it. The Chair thinks it is in order, and the question is upon the motion to lay on the table, and that is not a debatable question.

Mr. HENDRICKS. Before I vote on that question I wish to know what papers they are, and therefore I ask that they be read.

Mr. CONNESS. That is not in order. The PRESIDENT pro tempore. A Senator has the right to call for the reading of the papers before any question is put in regard to them, and they will be read if the Senate see fit to have them read.

Mr. STEWART. I call for the reading of the indorsement.

The PRESIDENT pro tempore. In regard to the reading of papers the rule is that if the reading of any paper is called for and it is objected to it shall be determined by the vote of the Senate. Is there any objection to the reading of these papers?

Mr. CONNESS and others. I object. The PRESIDENT pro tempore. Objection being made, the question must be decided by the Senate. The question is: Shall the papers be read? HENDRICKS. I ask for the yeas and

nays on that question.

The PRESIDENT pro tempore. Under our rules this question must be decided without debate.

Mr. HENDRICKS. I ask for the yeas and nays. I want to know whether a Senator has a right to have a paper read before he votes on it. I do not know what these papers are. The yeas and nays were ordered; and being taken, resulted-yeas 30, nays 10; as follows:

YEAS-Messrs. Bayard, Cole, Conkling, Corbett, Cragin, Davis, Dixon, Doolittle, Drake, Edmunds, Fessenden, Fowler, Harlan, Henderson, Hendricks, Johnson, McCreery, Morgan, Morrill of Vermont, Morton, Patterson of New Hampshire, Patterson of Tennessee, Ramsey, Ross, Sherman, Sprague, Trumbull, Van Winkle, Willey, and Yates-30. NAYS-Messrs. Cattell, Chandler, Conness, Ferry,

Frelinghuysen, Howard, Howe, Morrill of Maine, Nye, Pomeroy, Stewart, Sumner, Thayer, Tipton, Wade, and Wilson-16.

ABSENT-Messrs. Anthony, Buckalew, Cameron, Grimes, Norton, Saulsbury, Vickers, and Williams-8.

The PRESIDENT pro tempore. The papers will be read.

Mr. CONNESS. Now, Mr. President, before the reading takes place, I desire to inquire of the Secretary of the Senate how the papers, having been upon the files of the Senate and in its custody, came in the possession of the Senator to be presented here again? I ask that question.

Mr. EDMUNDS. Let them be read first that we may know what they are.

Mr. DAVIS. I will answer the Senator from California.

Mr. CONNESS. I ask the question of the Secretary first.

Mr. DAVIS. You have no right to put a question to the Secretary. I make that point of order.

The PRESIDENT pro tempore. The Chair is informed that these papers were delivered to the Senator on his application.

Mr. CONNESS. Will the Chair please repeat the statement?

The PRESIDENT pro tempore. I am informed that the papers were delivered to the Senator from Kentucky on his application. Mr. CONNESS. From the files of the Senate? The PRESIDENT pro tempore. I suppose so.

Mr. DAVIS. That is the fact. The PRESIDENT pro tempore. The papers will be read.

The Chief Clerk read as follows:

EXECUTIVE OFFICE, LITTLE ROCK, November 26, 1866.

STATE OF ARKANSAS, to wit: The General Assembly of this State, on the 24th day of November, 1866, having, in pursuance with the Constitution of the United States of America, chosen John T. Jones à Senator of the United States to fill the vacancy in the senatorial term commencing the 4th day of March, A. D. 1865, by the present General Assembly declaring the election of W. D. Snow for that term to be invalid and illegal:

Therefore I, Isaac Murphy, Governor of the State of Arkansas, do hereby certify the same to the Senate of the United States.

Given under my hand and the seal of the State of
Arkansas this the 26th day of November. 1866.
[L. S.]
ISAAC MURPHY,
Governor of Arkansas.
ROBERT J. WHITE,
Secretary of Stute.

Attest:

STATE OF ARKANSAS, EXECUTIVE OFFICE,
LITTLE ROCK, March 4, 1867.

STATE OF ARKANSAS, to wit:

The General Assembly of this State, on the 21st day of February, 1867, having, in pursuance with the Constitution of the United States of America, chosen Augustus H. Garland a Senator of the United States for six years, commencing on the 4th of March, 1867, to fill the vacancy occasioned by the resignation or non-acceptance of Andrew Hunter, who had previously been elected United States Senator from this State for said term:

Therefore I, Isaac Murphy, Governor of the State of Arkansas, do hereby certify the same to the Senate of the United States.

Given under my hand and the seal of the State of [L. S.] Arkansas this 4th day of March, 1867.

Attest:

ISAAC MURPHY, Governor of Arkansas. ROBERT J. WHITE, Secretary of State.

move that those two

Mr. HOWARD. I papers lie on the table. The PRESIDENT pro tempore. It is moved that the papers just read do lie on the table. The motion was agreed to.

Mr. DAVIS. Those papers are well laid on the table, because they were on the table at the time the motion was made, as the records show. They were presented some time ago, and were then received and laid on the table; and they have been there from that time to this. I move now, Mr. President, that the credentials just read, with the credentials offered by the honorable Senator from Nebraska, be referred to the Committee on the Judiciary.

The PRESIDENT pro tempore. The papers are on the table at present.

Mr. DAVIS. I move, then, that the credentials presented by the honorable Senator

from Nebraska be referred to the Committee on the Judiciary for a report. I suppose that that motion is debatable, is it not?

The PRESIDENT pro tempore. It is debat able.

Mr. DAVIS. These papers carry evidence in favor of two classes of claimants to seats in the Senate. It is a general rule that the older title is the better title. It is a rule in the Senate prima facie. I make the motion to refer the credentials offered by the honorable Senator from Nebraska to the Judiciary Committee, that the committee may have the subject before them, with general power to inquire who are the Senators from the State of Arkansas according to the Constitution; whether those Senators be the gentlemen whose names are expressed in the credentials offered by the honorable Senator from Nebraska, or the gentlemen whose names are expressed in the credentials which I have had read. That is an

important question. It is an important constitutional question. It is an important question that enters into the civil history of the country of this day; and I make the motion with a view to have the question in both aspects referred to the Judiciary Committee, that that committee may report upon the case and settle the precedent that should arise properly on the facts now before the Senate. I presume that if that reference be made it will give rise to two reports from that committee, one by the majority and one by the minority. I have my own definite opinion, as no doubt every Senator has his, in relation to the true rule of law and the Constitution that governs this matter. Upon that question I suppose there will be a division among the committee, and probably there will be two reports, one by the majority and one by the minority. The report of the majority, no doubt, would receive the sanction and approval of the Senate, and in conformity to that report these gentlemen would be admit ted to their seats in this body; but for myself I have no doubt that the report of the minority of the committee would contain the true principle of the case, and the principle that ought to rule the action of the Senate. It is not with a view to any present action of the Senate on that question that I make the motion, but simply that the Committee on the Judiciary may have the whole subject under its consideration; and if there be, as I have no doubt there would be, diverse views in that committee on this subject, that the diverse views of the committee might have expression in a report made both by the minority and the majority of the committee, and that this double expression of conflicting opinion might be entered upon the archives of the Senate to be a part of the civil history of the country in relation to this subject to be perpetuated in the future.

Mr. HOWARD. Mr. President, the Senator from Kentucky seems desirous to continue and expand the controversy which for years past has existed between the Executive of the United States and the Congress of the United States, in respect to the right and power of taking the initiatory steps for the reconstruction of the rebel States. On the other hand, I desire to bring that controversy to a close as soon as practicable, and to give the country rest and quietude in respect to that agitating topic.

He asks to have the credentials presented by the honorable Senator from Nebraska referred to the Committee on the Judiciary, for, as he says, the purpose of enabling that committee to solve the great constitutional question which he presents to the Senate, and upon which he is kind enough to inform us that his opinion has long since been made up. Sir, the Senate and House of Representatives, the law-making power of the United States, long since solved that great constitutional question. They did so when, in the enactment of the reconstruction acts, they declared that all the govern ments then existing in the rebel States were in their essence illegal governments, as established by Mr. Johnson, and that they could be regarded and should be regarded in no other

light than as provisional, until substantial, permanent governments could be inaugurated under the reconstruction laws. We therefore have settled the question that the bogus Legis- || lature of Arkansas, organized under the order of President Johnson in 1865, was not a legal, constitutional government, and we passed a law to enable the people of that State to call a convention, for the purpose of forming a new constitution and electing a new State government, in pursuance of the terms of that act. They have done so, and the gentlemen who now present themselves to the Senate and ask for admission are the persons who were thus duly elected by the Legislature of Arkansas, assembled in pursuance of our own laws; and thus this great constitutional question, so far as it depends upon the power of Congress, is settled; it is fixed and forever at an end, so far as the State of Arkansas is concerned; and all that remains for us to do here is to keep our faith with the people of that State, and to admit Senators properly elected under their new constitution to seats in this body.

Mr. HOWE. Mr. President, I believe the usage has obtained when a Senator has been compelled to vote upon a question without offering a word of explanation of his vote, that he should take the next debatable question that is presented to the Senate to explain his reasons. Availing myself of that privilege, I want to say one word, while this question is pending, in explanation of my vote on the question of reading those credentials.

The Senator from Kentucky offered those credentials and stated that they had been on the files of the Senate some two years. With that statement in my ears I thought I could take judicial notice, if it is proper to use the expression, that they were precisely the credentials which have been read-credentials which were offered here by gentlemen formerly claiming to be elected to the Senate, and which were by the vote of the Senate laid upon the table. I thought, if that was the fact, he had no right to present those credentials here. I supposed he was not rightfully, legally in possession of them. Of course there was no impropriety in the Clerk's delivering them to him, or his taking them, under the usage of the body; but I supposed that the fact of having them in his possession under those circumstances did not authorize him to make any motion upon them or present them to the Senate. The Senate had them in its custody.

Mr. DAVIS. Will the honorable Senator permit me to say a word?

Mr. HOWE. Yes, sir.

here. Congress passed a bill, which became a law yesterday, declaring that the State of Arkansas was entitled to representation in the Congress of the United States under the constitution which was formed and adopted by the people recently, within a few months, and today the credentials of two gentlemen are presented as having been elected to the Senate by the Legislature of the State of Arkansas. These credentials are certified to by the presid ing officers of the two houses of the Legislature of that State. Manifestly this election did not take place under the act of Congress prescribing the time and manner of electing Senators. That act requires the Legislature of a State, on the second Tuesday after it convenes, when there is a vacancy in the office of Senator from that State, or the term of a Senator is about to expire, to proceed in each house separately to vote for a Senator, and to meet on the next day and compare the votes of the two houses together, and if both houses have voted for the same individual that individual is declared to be the Senator-elect from the State; if they have not the two houses then in joint convention they proceed to elect a Sen. ator; and the law further requires that the Governor of the State shall give a certificate which constitutes the credentials, stating the election, and the law specifies the facts to be stated in the certificate. The certifiates in these cases are not in compliance with that act of Congress. The Senators were elected, as appears by the certificate, before Congress had passed the act recognizing the State of Arkansas, or the gov ernment which has been set up there as entitled to representation in Congress, and they present themselves in the same condition that Senators elected from new States have always presented themselves.

It has been the practice from the foundation of the Government whenever new States were formed from Territories for the Legislature, before the State was formally admitted into the Union, to organize and elect its Senators, and when Congress subsequently recognized the State organization it has been construed to have relation back to the time when the organization took place, and the acts of the Legis lature have been held to be valid, and the Senators thus elected, although they were elected by a Legislature not at the time recognized as a Legislature of a State of the Union, have been held to be Senators elected by the Legislature of the State, and have been admitted to their seats. It was only within a few years, perhaps within two or three years-I have not the act before me, and do not remember its

Mr. HOWE. I understood the Senator to move their reference to the Committee on the Judiciary, with the credentials offered by the Senator from Nebraska. I understood him to make that motion upon those credentials, and I understood him to call for the reading of those credentials. I thought neither of those steps could be taken. I was called upon to vote whether they should be read or not. I thought they ought not to be read, because the Senate never had allowed them to be taken off its table; and yet, by the vote of the Senate, those papers which had once been laid upon the table, without any motion to take them off, have been read here. It is not a very grievous thing to complain of. I only take the opportunity to make this statement in justification of the vote I gave, because I do not think it was a very heinous vote to give under the circumstances.

Mr. TRUMBULL. Mr. President, before disposing definitely of these credentials I think it somewhat important that we should understand exactly what they are, aud adopt a rule that may guide us in regard to similar cases which will be presented doubtless within a few days. I see by the newspapers that the Legisture of Florida has also elected Senators, and Georgia, and North and South Carolina, and Alabama, will all of them elect Senators in a few days, I trust, who will present themselves ||

upon the subject of the election of Senators. Before that time it left each State, through its Legislature, to fix its own time and manner of electing Senators. In some States they elected by a joint convention of the two houses composing the Legislature; in other States each house acted separately, and it required| the joint concurrence of the two houses acting separately to perfect an election. Now, Congress has legislated; but notwithstanding this legislation, which does not apply to a case like the present or to the case of new States, it is, I apprehend, competent for Congress to recognize an election which has taken place, as this one in Arkansas has, before the Legislature was recognized as the legitimate Legislature of the State and without having the certificate which is prescribed by the law under which elections took place in States duly organized. It is certainly competent for the Senate alone to pass upon the qualifications and elections of the members of the body.

Certainly nothing is to be gained by requiring the particular evidence specified in the statute. The object of the statute in requiring the Governor to give a certificate of the election of Senators was to prescribe a mode which should be simple and convenient and easy of execu tion, and to avoid any controversy as to the evidence; but if the Senate has satisfactory evidence of the election, that is all that is requisite. We have decided that this State

government inaugurated in Arkansas is the legitimate State government. We have recog nized this Legislature as having authority to elect Senators. It has made that election. I presume nobody doubts that there is sufficient evidence on your table of the election of the gentlemen who have presented themselves here as having been elected; and it is now for us to decide whether we shall receive these gentlemen notwithstanding the act of Congress. I think we may do so; and doubtless we could refuse to do so and compel the Legislature of Arkansas again to go into an election.

Mr. EDMUNDS. I would like to ask my friend a question as he is speaking on this subject; and that is what the rule is in relation to this form of election which elects one of these gentlemen to a particular term less than six years, and another to another term less than six years. If it were á case of a vacancy in the representation of a State, of course under the constitution the State Legislature would fill up the vacancy after the Governor had exercised his power, if he had done so. If those States are to be regarded as in the nature of States whose governments were completely disorganized, then the question I wish to put to my friend for his consideration and that of the Senate is whether these Senators ought not to have been elected in general and under the Constitution, which provides the specific manner of ascertaining their terms, shall be classified by lot, or whether we ought not now to go through with the classification as the Constitution requires. That is a question which I wish to suggest for his consideration, and it is a question of considerable practical importance under the Constitution.

Mr. TRUMBULL. That is a subject to which I had not paid special attention, and I have only given it the reflection which has been within my power since the question has been propounded by the Senator from Vermont; but it seems to me that these Senators are elected properly in that respect. Arkansas was a State of the Union, and the terms of her Senators were fixed when Arkansas was admitted into the Union as commencing at a particular time. The period of six years for which each one serves is a fixed period; and it is no matter whether Arkansas had Senators a portion of this time or not. Suppose that her government had not been disorganized, but for some reason or other she had had no Senators for a dozen years; still the periods would run on, commencing and terminating at a particular point of time, which could be ascertained with certainty by going back to the first drawing of terms by her Senators when the State was admitted. I have not looked to see, but I take it for granted that these persons are elected to fill out terms which have already commenced. Perhaps the term of one Senator will terminate on the 4th of March, 1869, and the other on the 4th of March, 1873. I do not know how that may be in this case; but these are fixed terms, and there being no Sentors to fill the terms which expire on those days, and Arkansas having now got into a position that authorizes here to elect Senators, she elects them to fill out those terms which have already commenced to run.

Mr. EDMUNDS. Then you claim that these are vacancies in the representation of the State, within the meaning of the Constitution.

Mr. TRUMBULL. I claim that the term having been once fixed, the persons now elected are elected to fill out those terms which run on, and there is no necessity for the drawing of lots. The Senator from Kansas [Mr. PoмEROY] has handed me a list showing that in the case of Arkansas the term of one Senator will expire on the 4th of March, 1871, and of the other on the 4th of March, 1873, so that these terms have gone on in the same manner as if the State had been represented all the time. I think there is no difficulty in that respect, and I see myself no insurmountable difficulty to allowing these Senators to be sworn on the evidence which is presented. It will facilitate the reorganization of these States to

allow this to be done. I know of nothing that is to be gained by remitting them back to the same Legislature, to be elected over again in a particular mode, when that mode was not applicable to the case under consideration.

Mr. THAYER. I will state to the Senate that the Legislature of Arkansas did follow the provisions of the law of 1866 regulating the election of Senators in every particular; that is, the election took place in each house on the second Tuesday after the meeting of the Legislature; and the next day the two houses met in joint convention and declared the result. The provisions of the law in that respect were fully complied with. The Senator from Illinois has called attention to the certificate. It is signed, it is true, by the presiding officers of the two houses for the reason that the Legislature did not recognize the old Governor and the new Governor had not taken the oath of office, was not in possession of the office, and was simply Governor-elect. They therefore furnish the next best evidence, the official certificate of the president of the senate and speaker of the house. I suppose what the Senate wants is evidence of the election, evidence sufficient to satisfy the Senate that these gentlemen were duly elected. The provision of the law is that it shall be the duty of the Governor to certify the result of the election. But we can take the next best evidence, and that is furnished. I can hardly conceive that the absence of the Governor's certificate under these circumstances would afford sufficient ground for refusing to administer the oath of office to these gentlemen.

In regard to the reference of these credentials to the Judiciary Committee, I can hardly conceive of any reason for that. The acts of Congress under which these gentlemen appear here have been complied with in every particular, as Congress has declared in the act which became a law yesterday. That act declared that Arkansas, having complied with all the conditions prescribed by Congress, is now entitled to representation. I cannot, therefore, perceive any reason for a reference of these credentials. There are no contestants; no other gentlemen appear here claiming the seats. We cannot recognize any election which took place under the provisional government. We can only recognize the acts done by virtue of the authority of Congress as conveyed in the laws it passed, and the bill which became a law yesterday. I hope, therefore, no further objection will be made to these Senators being sworn in.

Mr. HENDRICKS. Mr. President, the real questions that arise upon an objection to these credentials were, in my judgment, settled by the passage of the bill of yesterday. It is known to the Senate that I do not believe in the right of Congress to establish State govern. ments; but as this is the first of the States that has presented claims for admission in the Senate under what is called the reconstruction policy, it seems to me that the Senate should take the most liberal action possible. But I think these credentials should go to the proper committee. Other States will be here very soon asking that their Senators be received; and although most of the questions are concluded by the action of the Senate in passing the bill, or will be when the omnibus bill shall have passed, yet as these elections are likely to take place in a very irregular manner the credentials ought to be examined by the proper committee. Upon that ground I shall vote for the proposition of the Senator from Kentucky, not to delay the admission of these gentlemen to their seats, but for the purpose of seeing that the election has been so far regular at least that we ought to recognize it, and to see that the evidence is satisfactory.

In this case, we have not the ordinary evidence that comes to the Senate. There is not à certificate here from the chief executive officer of the State under the seal of the State, but the separate certificates of the presiding officers of the two branches of the Legislature. Mr. EDMUNDS. A general certificate.

Mr. HENDRICKS. Very well; it amounts to a separate certificate. It is the joint certificate of the two, each certifying, I suppose under the act of Congress, the action of his body. If this election took place according to the law regulating the election of Senators, this is the separate certificate of the two presiding officers, because the president of the senate could not know officially what took place in the house, nor could the speaker of the house know officially what took place in the senate, and if they united in the certificate it amounts simply to a certificate each for his own body.

The question suggested by the Senator from Illinois, in my judgment, is an important oue. How far the Senate is now bound by the law is worthy of very careful consideration. In the absence of law on the subject, the Senate may admit under its general constitutional power such persons as Senators as they deem to have been properly elected; but as Congress has prescribed the mode of an election, it is worthy of very deliberate consideration how far each branch is bound by that law. I understand from the Senator from Illinois that this election did not take place according to the law, but in some irregular manner.

Mr. THAYER. Oh, no; it was in exact accordance with the law.

Mr. HENDRICKS. The Senator from Nebraska says that it did take place exactly in accordance with the provisions of the law.

Mr. TRUMBULL. I meant to be understood as saying that it did not take place in accordance with the law, the Legislature at that time not being recognized by Congress as a Legislature. It could not, of course, act in accordance with the law until there was a State government in Arkansas authorized to elect Senators, and there was no State government in Arkansas authorized to elect Senators at the time this election took place. The act of Congress recognizing that State organization is of a subsequent date, and of course it could not, therefore, be in strict com||pliance with the law. But I proceeded to say that I supposed the action of Congress subsequently might have relation back, so as to make valid what then took place. I understand from the Senator from Nebraska that the form of proceeding was in accordance with that prescribed by that act of Congress.

Mr. THAYER. Yes, sir; that is what I meant to say.

Mr. HENDRICKS. I have no special feeling about this matter. I think it is safe to make this reference, as this is the first of these States coming in under the reconstruction acts, not only that the evidence of the election may be examined, but any other question that the Committee on the Judiciary think properly

arises.

Mr. JOHNSON. I think the credentials should be referred, but I rise for the purpose of expressing an opinion which I entertain, subject to correction if I am in error; and that is that the authentication of the credentials is sufficient. It is a subject that I had occasion to consider when it was thought to be possible that a difficulty might arise in my own State. At one time it was believed that, in consequence of a failure to elect a Senator from Maryland strictly in accordance with law, the Governor of the State could decline to give his certificate. I was consulted at that time, and came to the conclusion, in which I had entire confidence, that if he did refuse to give his certificate and the election should turn out to have been according to law, the Senate would consider the credentials sufficiently authenticated if they were signed by the presiding officers of the two houses.

for the reason stated by the honorable member from Illinois, that there was no Legislature in existence recognized by Congress as the Legislature of the State. But that has often oc curred. In some instances there have been enabling acts, constitutions have been framed and adopted by the people, and Senators have been elected by the Legislatures before the States were admitted into the Union; but when they were admitted into the Union the Senators were received. Even in the case of California, which became a State without any enabling act, the Senators elected in advance of her admission were received.

In relation to the first point, it appeared to me that the provision that the Governor was to authenticate the credentials was merely directory, and could be dispensed with in all cases where it was found impossible that that should be done, either because the Governor declined to sign them, or because there was no Governor in office.

Mr. MORTON. Mr. President, I understand a question is raised in regard to the authentication of these credentials, as to the evidence of this election. It is not necessary that these credentials should set forth that the election took place in the precise form marked out by the statute. The credential that I hold in my hand declares that the election was held in pursuance of the act of Congress of 1866, specifying the act. In the absence of any showing to the contrary, shall we not presume, this statement being uncontradicted, that the election was held in the very form prescribed by that act? Is it necessary that it should go on and say that the two houses met and did thus and so, and afterward met together to consider the question of an election? That is all embraced in the general declaration that the election was held in pursuance of the act of Congress.

These credentials are signed, not by the Governor, but by the president of the senate and the speaker of the house of representatives. Is not that all the evidence that is necessary? You have not made the certificate of the Governor necessary. The act of Congress does not do so. It goes on to state how this election shall be held, and the concluding section of the act reads as follows:

"That it shall be the duty of the Governor of the State from which any Senator shall have been chosen as aforesaid to certify his election under the seal of the State to the President of the Senate of the United States, which certificate shall be countersigned by the secretary of State of the State."

If

It shall be the duty of the Governor to make the certificate; but you cannot compel him to perform that duty. He is a State officer. His certificate is not indispensable. If there is other evidence which satisfies the Senate that the election was held in pursuance of the act of Congress of 1866, that is enough. Suppose the Governor refused to make the certificate altogether. He has failed in this case from some cause; it is not important to inquire what that cause was. Suppose he refused to make it. He is a State officer, and you cannot compel him to make it. You cannot punish him for not making it. If he refuses to make it that does not invalidate the election. evidence is produced which is satisfactory to the Senate that the election was held in pursuance of the act of Congress, that is enough. If the Governor makes the certificate, that is conclusive. Congress need not go behind that. But suppose he refuses to do it, what are you to do? Does the election fall to the ground? You cannot force him to do it. You cannot compel him by a mandamus or by any other authority to make the certificate. But, sir, he has not got the power in his hands to defeat an election. If the evidence is satisfactory But, for the reasons stated by my friend that the act of Congress has been complied from Indiana, I think it very advisable that with, that these men were elected in the way these credentials should be referred to the pointed out by that act, it is all that ought to Committee on the Judiciary, that some general be required. I do not care whether the Govrule may be established by which all subse- ernor failed to make the certificate because of quent difficulties may be averted. It is true accident or sickness, or because he refused to that in one sense the election was not held in make it; it is not important, it is not indisthis instance according to the act of Congresspensable to the election. The question is:

Mr. HENDRICKS. If he understands me as saying that the certificate of the Governor is essential to the right of the party to his office he misunderstands me. It is the election which gives the man a right to his office, and the certificate is but evidence of the election. But as the law prescribes the character of the evidence that shall be furnished, in the absence of such evidence ought not the evidence preseuted to be examined by a committee? That is all I undertake to say.

Mr. MORTON. If there was any doubt about it, it might be proper to do so. The certificate of the Governor is not here, but the certificate of the two presiding officers is here. The Senator will admit that the certificate of the Governor is not indispensable. The absence of it does not defeat the election. It is simply a question, after all, whether there is satisfactory evidence before the Senate that these men were elected in pursuance of the act of Congress. The speaker of the house and the president of the senate say they were. Does anybody doubt that this certificate is true? There is no doubt entertained by anybody here on that subject. Therefore, a reference to a committee is a mere matter of form, which can do no good to anybody, and only accomplishes delay. For that reason I object to the reference. This great work has suffered many delays. This act is the consummation of a work that has been going on for a year and a half, or nearly so. It is time it was ended. Here is evidence that leaves no doubt upon the mind of any Senator here. There is no question about the fact. These men have been elected in pursuance of the act of Congress. Why not let them be sworn at once?

Mr. DAVIS. Mr. President, a motion was made to admit two gentlemen as Senators from the State of Arkansas. Their credentials were. presented, and it was proposed that they should take the oath required by the Constitution and the law. I thought that it was not regular, but against the right and truth of the case that those two men should be admitted to seats in the Senate. I therefore made a question upon that right, as it was my prerogative to do. They are the first of a series of Senators who are to be introduced under the reconstruction laws, and I conceived that it was an important action on the part of the Senate to admit them; and as I believed that they were not entitled to admission I decided to make the question at least, and I made it in the form of moving that the credentials of these gentlemen be referred to the Committee on the Judiciary. I had applied to the Secretary of the Senate at his office before to see these credentials, to know in what form they had been made; but they were not on file, and the objections which now come up on their face and in the form of the election I did not know of, as the credentials were not with the Secretary and I had no opportunity of examining them. Upon my

motion to have their credentials referred I was using the credentials of other men, previously made out in their favor, as a part of my remarks, and it was only in that form, as a part of the remarks that I intended to make upon the case, that I asked to have them read by the Clerk. I supposed that if the credentials of the men who are now presented are referred to the committee the other credentials and all other testimony bearing upon any questions in the case of course would go before that committee. In making the motion, it was iny intention and my purpose to bring as far as I could before the Senate and the committee, if the question should be referred to the committee, all the testimony bearing properly upon any question arising in the case.

Now, Mr. President, it turns up, after the debate has commenced, by the admission of the honorable chairman of the Committee on

the Judiciary, that the election of these Senators took place before (according to the principle of the majority of the Senate) the Legisla ture of Arkansas was a constitutional and legal Legislature. I understand that position to be conceded, that this body, calling itself the Legislature of Arkansas, got together and proceeded to make an election by which these two gentlemen were selected as Senators from that State to the United States Senate, when, according to the principle of the majority of the Senate, there was no such thing in existence as a constitutional and legitimate Legislature of the State of Arkansas. It is conceded that the election took place by a body that was not authorized to make it, which, according to the principle of the gentleman, had no legitimate power to make it; and yet, as Congress yesterday passed a law declaring that Arkansas was entitled as a State in the Union to be admitted to representation in both Houses of Congress, it is contended that Congress should therefore sanctify and make valid this informal and void election of Senators from that State. It is a singular position, to say the least, that an election which had no validity, which was unauthorized by the Constitution and the laws, and therefore utterly void, can be made good and valid by the action of Congress. I ask, under that state of fact and of principle, who would make the election of these Senators, the Legislature of Arkansas or the Senate of the United States?

Mr. MORTON. I should like to ask the Senator from Kentucky one question. I ask him if it is not consistent with the whole prac tice of the Government in the admission of States? Territories are formed as States, but, before they are admitted, I ask him if their Legislatures do not elect Senators at a time when they are not Legislatures of States, but only in embryo; and whether such elections are not ratified and made valid by relation back when the State is subsequently admitted? Has not that been the practice of the Government from the very beginning?

Mr. DAVIS. I concede that; and upon this principle: that the people of the State had formed the State before it was admitted into the Union, and that the only action of Congress was to admit a State into the Union that had been previously formed by the people of that State.

Mr. MORTON. I ask if it was not still a Territory until it was actually admitted? If it was a State and to be regarded as a State for a moment until its actual admission?

Mr. DAVIS. I say not, in response to the honorable Senator. The State would exist in an organized form at the time of its admission as a State into the Union by Congress. Congress has no right to form a State. Congress has no constitutional power whatever to make a State or to form a State. The people make the State, form the State, and frame its State government; and after all this work is done the simple, isolated act which the Congress does is to admit the State, as it has been formed, into the Union as one of the United States.

According to the theory of the honorable gentlemen who constitute the majority of the Senate Arkansas was not a State in the Union, and not a State at all, at the time the election of these Senators took place, as I understand. Assuming their principle to be true, that Arkansas was not a State, then her Legislature was not a legitimate, valid Legislature of the State of Arkansas. It certainly then had no power to elect a Senator, or to give that election such validity as that when Congress should pass a law declaring that Arkansas should be entitled to representation in the Senate and House it would sanctify that election made by a body that was not a Legislature at all. Sir, this is a grave question. It is certainly of such a character as merits a reference to the Judiciary Committee, that that committee may consider it and report upon it to the Senate.

One word with regard to the other objection, which has been conceded to exist, to the admission of these Senators. Congress has passed

a law which requires a particular form of evidence of the fact of the election of a Senator. That form of evidence, in one of its important requisites, in the present case is defective. The Governor of that State has not attached the certificate which the law requires to the credentials of these elected Senators. Will Congress, in the absence of that essential part of the proof, admit them without a reference of their credentials and their case to the Judiciary Committee? There may, or may not, exist a sufficient cause for the absence of that feature in the proof. If there is a sufficient cause for its absence, and it may be dispensed with, the facts upon which it may be dispensed with are certainly proper for the consideration and report of the Judiciary Committee.

Mr. President, I was impelled to make objection to the admission of these Senators upon the ground that I previously stated. I do not believe that they have any constitutional claim or right whatever to seats as Senators from the State of Arkansas; and to meet their right, and to compete with it, I endeavored to have thrown before the Senate the legitimate and exactly legal returns or commissions of previous Senators from that State, whose terms of service, as evidenced on the face of the credentials, have not yet expired. I believed, as I now believe, that the right of the men who held the previous credentials was not only the paramount right, but the only right to a claim of seats upon this floor as Senators, and that consequently the two gentlemen who are presented this morning have no right whatever to seats in the Senate.

The Senator from Michigan [Mr. HOWARD] says that that question has been settled, and that I am seeking to revive the controversy between the President and Congress as to which of those two powers of the Government should reconstruct these States. Sir, I have always denied that either of those powers of the Government had any right to pass reconstruction laws. I concede no such principle as that. I have always combated that principle, that power, that right on the part of the President or Congress either to reconstruct or to prescribe terms for the reconstruction of the States that were in the rebellion. My principle has been, as has often been expressed to the Senate, that when the rebellion was subdued, crushed, and the people of those States that were in rebellion made their submission to the United States Government, the Constitution itself, by its own principles and its own operation and effect, restored them to the Union and enabled them to claim all their rights in the Government as States of the United States.

But the honorable Senator says that that question has been settled; that it has been adjudged by the Senate and House of Repre sentatives. I tell the honorable Senator that there is an appeal pending before the American people from that judgment, and in my opinion that judgment will be swept away and will, before twelve months, exist as naught, as nothing. But that is a question of opinion between the honorable Senator and myself.

I have explained the considerations that moved me in making my objection, and I have stated my opinion in relation to the matter, and the grounds upon which, generally, it was formed, and I therefore leave the case.

Mr. POMEROY. The question I believe is, whether these credentials shall be referred to the Committee on the Judiciary. I move to lay that question on the table.

Mr. TRUMBULL. That will dispose of the whole subject.

Mr. POMEROY. I understand that that will lay the credentials on the table, where they should be, and then we can proceed to swear in the Senators-elect.

Mr. CONNESS. I understand the discussion to be at an end, and I hope the Senator will withdraw the motion, and let us vote.

Mr. POMEROY. I will withdraw it if no more speeches are to be made; but it is now after two o'clock, and we have been discussing a question which has been discussed here ever

since I have been in the Senate about the power of these States to organize governments. If that question is to be discussed on the presentation of credentials and on a motion to refer credentials I think the subject should be laid on the table. I do not want to cut off any person who desires a moment to reply; and if the Senator from Michigan wishes to do so, I will withdraw the motion.

Mr. HOWARD. I have but one word to say in reply. I do not propose to attempt to answer the honorable Senator from Kentucky upon the constitutional question which he has raised. I am quite content with the decision which has been made of that great question; and I am equally confident with himself that upon the trial of that question again before the great court of appeal which he seems to invoke the decision will be as decidedly adverse to him and his party as it has been in Congress.

I wish, however, to say one word in regard to the act of 1866, which is appealed to here by the gentlemen opposing the admission of these Senators, and as to which it is said that the credentials on the table are not in conformity with the provisions of that act. Now, sir, what was the date of that act? It was passed in July, 1866. At the time that act was passed the rebel States were still in their ⚫ anomalous condition. They had no regular governments. They were held by the authorities of the United States by virtue of the triumph of our arms; and the very text of that act, when carefully considered, will be found not to be applicable to the States in that particular condition. I do not regard the act of 1866 as applicable by its terms or by its spirit to the readmission into Congress of the rebel States. It was not expected to apply to them, because in many of its provisions it was utterly impossible to apply it.

Then, again, eight months afterward, in March, 1867, Congress passed what is known as the first reconstruction act. That act and

We

its supplements declare in substance that when the rebel States shall have complied with the terms contained in those acts the States shall be declared entitled to representation, and Senators and Representatives shall be admitted therefrom as therein provided; that is, as provided in the State constitutions which the respective rebel States may have formed. are not bound by the act of 1866 in regard to the credentials of Senators from those States; but we are simply thrown back upon our constitutional authority to judge of the qualifica tions of the persons elected, and of the sufficiency of their credentials. When Senators look at the act of 1866, it will be obvious enough to any one, I think, that it is impossible to apply the terms of that act to the rebel States. It was never supposed that it would be so applied. But in regard to the readmission of the rebel States we are governed exclusively and solely by the reconstruction acts and by our naked, constitutional authority. Therefore, supposing as I do, that these credentials are truthful upon their face, and that these gentlemen have been elected by the Legislature of that State altogether in pursuance of the reconstruction acts, I think they are entitled to their seats, and I am therefore opposed to the reference of the question to the Judiciary Committee, and am in favor of their being immediately sworn in.

The PRESIDENT pro tempore. The question is on referring the credentials to the Committee on the Judiciary.

The motion was not agreed to.

The PRESIDENT pro tempore. It is now moved that the Senators-elect be sworn in.. The motion was agreed to.

The PRESIDENT pro tempore. The Senators-elect from Arkansas will advance to the Chair and take the necessary oaths.

The Senators from Arkansas, Messrs. McDONALD and RICE, escorted by Mr. POMEROY and Mr. THAYER, advanced to the desk, and having taken the oaths prescribed by the Constitution and the act of July 2, 1862, took their seats in the Senate.

MESSAGE FROM THE HOUSE.

A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House had agreed to the amendment of the Senate to the bill (H. R. No. 822) granting a pension to Hampton Thompson.

The message further announced that the House had passed a joint resolution (H. R. No. 292) directing the Secretary of War to sell damaged or unserviceable arms, ordnance and ordnance stores, in which the concurrence of the Senate was requested.

The message also announced that the House had passed the bill (S. No. 216) to amend an act entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific railroad, in California, to Portland, in Oregon," with amendments, in which the concurrence of the Senate was requested.

INDIAN APPROPRIATION BILL.

Mr. CORBETT submitted an amendment intended to be proposed to the bill (H. R. No. 1073) making appropriations for the current and contingent expenses of the Indian department and for fulfilling treaty stipulations with various Indian tribes, for the year ending June 30, 1869, and for other purposes; which was referred to the Committee on Appropriations, and ordered to be printed.

CALIFORNIA AND OREGON RAILROAD.

The PRESIDENT pro tempore laid before the Senate the amendments of the House of Representatives to the bill (S. No. 216) to amend an act entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific railroad, in California, to Portland, in Oregon." The amendments were in line ten, to strike out the words "two years" and to insert "eighteen months, and in line twelve, to strike out "three years" and to insert "two years." Mr. CORBETT. I move that the Senate concur in those amendments, The motion was agreed to.

SALE OF DAMAGED ORDNANCE.

The joint resolution (H. R. No. 292) directing the Secretary of War to sell damaged or unserviceable arms, ordnance, and ordnance stores, was read twice by its title.

Mr. WILSON. As that is a joint resolution of but a few lines, I ask that it be put upon its passage.

The PRESIDENT pro tempore. It requires unanimous consent to consider the joint resolution at this time. Is there any objection?

Mr. EDMUNDS. Let us hear what it is first. Let it be read for information.

The Chief Clerk read the joint resolution, which is a direction to the Secretary of War to cause to be sold, after offer at public sale, on thirty days' notice, in such manner and at such time and place, at public or private sale, as he may deem most advantageous to the public interest, the old cannon, arms, and other ordnance stores in possession of the War Department which are damaged or otherwise unsuitable for the United States military service or for the militia of the United States, and to cause the net proceeds of such sales, after paying all proper expenses of sale and transportation to the place of sale, to be deposited in the Treas ury of the United States.

Mr. EDMUNDS. I think that resolution had better be referred. I think I can suggest to my friend an amendment that it clearly requires. It raises just such a question as we have repeatedly considered here.

The PRESIDENT pro tempore. The joint resolution can only be considered at the present time by unanimous consent.

Mr. MORRILL, of Maine. I object. The PRESIDENT pro tempore. Objection being made, it will be referred to the Committee on Military Affairs and the Militia.

EXECUTIVE COMMUNICATION.

The PRESIDENT pro tempore laid before the Senate a message from the President of the

United States, communicating, in compliance with a resolution of the Senate of the 28th ultimo, correspondence relating to the act of Congress prohibiting persons in the diplomatic service from wearing uniforms or official costumes; which was referred to the Committee on

Foreign Relations, and ordered to be printed.

AMERICAN CITIZENS ABROAD.

Mr. CONNESS. I offered a resolution yesterday to discharge the Committee on Foreign Relations from the further consideration of the bill (H. R. No. 768) concerning the rights of American citizens in foreign States. As that bill has been reported by the committee this morning I desire to withdraw the resolution. The committee having reported the bill, and I having no object in view but to get the early consideration of the Senate to the bill, I now ask leave of the Senate to withdraw the resolution.

The PRESIDENT pro tempore. The Chair hears no objection, and the resolution is with. drawn.

PRINTING OF A PETITION.

Mr. HENDRICKS. I presented a petition this morning of certain voters of this District, which I desired to have printed. I intended to make the motion at the time I presented it; but I forgot to do so. I now ask that the petition be printed.

The PRESIDENT pro tempore. That order will be entered, if there be no objection.

ENROLLED BILLS SIGNED.

À message from the House of Representa. tives, by Mr. MCPHERSON, its Clerk, announced that the Speaker of the House had signed the following enrolled bills and joint resolution; and they were thereupon signed by the President pro tempore of the Senate:

A bill (S. No. 216) to amend an act entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific railroad, in California, to Portland, in Oregon;"

A bill (H. R. No. 822) granting a pension to Hampton Thompson; and

A joint resolution (H. R. No. 264) to provide for the sale of the site of Fort Covington, in the State of Maryland.

LEGISLATIVE, ETC., APPROPRIATION BILL.

The PRESIDENT pro tempore. The unfinished business of yesterday is now before the Senate.

The Senate, as in Committee of the Whole, resumed the consideration of the bill (H. R. No. 605) making appropriations for the legislative, executive, and judicial expenses of the Government for the year ending the 30th June, 1869, the pending question being on the amendment of Mr. SUMNER to the amendment of the Committee on Appropriations. The amend ment of the committee was to insert after line three hundred and fifty-two, following the appropriation for the compensation of the officers of the State Department, the following proviso:

Provided, That the third section of the act of August 18, 1856, entitled "An act to amend an act entitled An act requiring foreign regulations of commerce to be laid annually before Congress, approved August 16, 1842, and for other purposes,' and also that the second section of the act of July 25, 1866, entitled An act making appropriations for the consular and diplomatie expenses of the Government for the year ending 30th June, 1867, and for other purposes," be, and the same are hereby, repealed.

The amendment of Mr. SUMMER was to strike out of the amendment of the committee the following words:

And also that the second section of the act of July 25, 1866, entitled "An act making appropriations for the consular and diplomatic expenses of the Government for the year ending 30th June, 1867, and for other purposes."

Mr. SUMNER. I do not know that it is advisable to protract this discussion; and yet there were some remarks that were made at the close of the debate yesterday to which I should like for one moment to reply. I have nothing to say with regard to the first part of the amendment of the committee relating to the clerkship of statistics in the State Depart