[Thirty-fourth and Thirty-fifth Congresses.]

GRAHAM N. FITCH AND JESSE D. BRIGHT,

LANE AND MCCARTY vs. FITCH AND BRIGHT,

of Indiana.

February 4, 1857, Graham N. Fitch was elected Senator by the legislature of Indiana for the term ending March 3, 1861, and Jesse D. Bright for the term ending March 3, 1863. February 9, 1857, Mr. Fitch's credentials were presented, and at the same time a protest of members of the legislature against the legality of the election. After debate on the prima facie right of Mr. Fitch to the seat, he was admitted, and his credentials and the protest were referred to the Committee on the Judiciary. The ground of the protest was that these Senators were "not elected by the legislature of Indiana, but by a convocation of a portion of the members thereof, not authorized by any law of the State, by resolution adopted by the legislature, or by any provision of the Constitution of the United States." It appears that there was no law in Indiana providing for the time, place, or manner of electing Senators. There was a clause in the State constitution making it the duty of the speaker of the house of representatives to open and publish the votes for governor and lieutenantgovernor in the presence of both houses of the general assembly. January 12, 1857, the two houses met for this purpose, a majority of both houses being present. At the close of this business the presiding officer adjourned the convention (so called) until February 2. Meantime the senate passed a resolution protesting against this proceeding and disclaiming all connection with the so-called convention. A minority of the senate, but a majority of the members composing the two houses, attended the adjourned meeting, and after a subsequent adjournment elected Messrs. Fitch and Bright as Senators. February 26 and March 13, 1857, the committee reported resolutions that Mr. Fitch and the persons protesting against his election be permitted to take testimony on disputed facts. December 17, 1857, the credentials of Mr. Bright, who had taken his seat March 4, were referred, together with the credentials of Mr. Fitch, to the same committee. January 21, 1858, the committee again reported a resolution that the sitting members and the persons protesting be permitted to take testimony. January 25 the minority of the committee reported against the adoption of the resolution on the ground that the election was "obviously illegal." The resolution passed the Senate February 16, 1858. May 24, 1858, the committee reported the testimony and the resolution that the sitting members were entitled to their seats. The resolution was agreed to June 12, 1858. January 24, 1859, a memorial of the State of Indiana was presented representing that it was the wish of the State that Henry S. Lane and William Monroe McCarty be admitted to seats in the Senate as the only legally chosen Senators. February 3, 1859, the Committee on the Judiciary, to whom were referred the memorial, reported that there was no vacancy in the Senate from the State of Indiana, and that the election of Messrs. Lane and McCarty was void; that the legislature of Indiana possessed no authority to revise the decision of the Senate of the United States on the right of Messrs Fitch and Bright to the seats, a decision which was final and made by an authority having exclusive jurisdiction, and asked to be excused from the further consideration of the subject. February 3, 1859, the minority reported that the former decision of the Senate was not necessarily final; that under the circumstances the subject should be re-examined; and that if the Senate should find that Messrs Lane and McCarty were legally elected, they should be admitted to the seats. Feb ruary 14, 1859, the Senate agreed to the report of the committee and resolved that the decision of June 12, 1858, affirming the right of Messrs Fitch and Bright to their seats, "was a final decision of all the premises then in controversy, and conclusive, as well upon the legislature of Indiana, and all persons claiming under its authority, as upon the Senators named in the resolution."

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from the Senate Journals, 3d sess. 34th Cong., 1st sess. 35th Cong., and 2d sess. 35th Cong., together with certain of the reports made in the case.

Special references to the debates found in the Congressional Globe of the 3d sess. of 34th Cong, and the 35th Cong., are inserted below, and special references to all the reports are given in foot

notes.

[Third sessson of the Thirty-fourth Congress.]

MONDAY, February 9, 1857.

Mr. Bright presented the credentials of the Hon. Graham N. Fitch, elected a Senator by the legislature of Indiana, to serve in the Congress of the United States until the 4th day of March, 1861; which were read.

Mr. Bright submitted the following resolution for consideration:

"Resolved, That the President do administer the oath required by the laws to Graham N. Fitch as a Senator from the State of Indiana."

Mr. Trumbull presented resolutions of the senate of the State of Indiana respecting the recent election of Senators by the legislature of that State, and a protest of members of the house of representatives of the State of Indiana against the legality of the election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in the Congress of the United States; which were read; and,

After debate,

On motion by Mr. Trumbull that the credentials, the resolution submitted by Mr. Bright, and the resolutions of the senate of Indiana, with the protest of members of the house of representatives of the general assembly of Indiana, presented by Mr. Trumbull, be referred to the Committee on the Judiciary, it was determined in the negativeyeas 12, nays 33.

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Collamer, Crittenden, Fessenden, Foot, Foster, Hale, Harlan, Nourse, Seward, Thompson of Kentucky, Wade, and Wilson.

Those who voted in the negative are Messrs. Adams, Allen, Bayard, Bell of Tennessee, Biggs, Bigler, Bright, Brown, Butler, Cass, Clay, Dodge, Evans, Fitzpatrick, Geyer, Green, Hunter, James, Johnson, Jones of Iowa, Mallory, Mason, Pratt, Pugh, Reid, Rusk, Sebastian, Slidell, Stuart, Toombs, Toucey, Weller, and Yulee.

The Senate proceeded, by unanimous consent, to consider the resolution submitted by Mr. Bright, and the resolution was agreed to; and

The oath prescribed by law was administered to Mr. Fitch, and he took his seat in the Senate.

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On motion by Mr. Rusk that the credentials of the Hon. Graham N. Fitch, the resolutions of the senate of Indiana, and the protest of members of the house of representatives of Indiana respecting the recent election of Senators by the legislature of that State, be referred to the Committee on the Judiciary,

On motion by Mr. Stuart, the Senate adjourned.

[The debate is found on pages 193-210 of the Appendix to the Congressional Globe, 3d sess., 34th Cong., 1856-'57 It is largely on the prima facie right of Mr. Fitch to the

seat.]

TUESDAY, February 10, 1857.

The Senate resumed the consideration of the motion of Mr. Rusk to refer the credentials of the Hon. Graham N. Fitch, with the resolutions of the senate of Indiana and the protest of members of the house of representatives of that State in relation to the recent election of Senators by the legislature of Indiana, to the Committee on the Judiciary; and the motion was agreed to.

[The debate is found on pages 210-215 of the Appendix to the Congressional Globe, 3d sess., 34th Cong., 1856-'57. It is mainly on the question whether the credentials should be referred to the Committee on the Judiciary or to a select committee.]

THURSDAY, February 12, 1857.

Mr. Trumbull presented a protest, signed by members of the house of representatives of Indiana, against the legality of the election by the legislature of that State of Jesse D. Bright and Graham N. Fitch as Senators in the Congress of the United States; which was referred to the Committee on the Judiciary.

FRIDAY, February 20, 1857.

Mr. Trumbull presented copies of the proceedings of the legislature of Indiana, and other papers, in relation to the recent election of Senators to represent that State in the Congress of the United States; which were referred to the Committee on the Judiciary.

THURSDAY, February 26, 1857.

Mr. Trumbull presented a petition of senators and representatives of the legislature of Indiana, protesting against the election of Graham N. Fitch as a Senator to represent that State in the Congress of the United States; which was referred to the Committee on the Judiciary.

Mr. Toombs, from the Committee on the Judiciary, to whom were referred the credentials of the Hon. Graham N. Fitch as a Senator in Congress from the State of Indiana, the proceedings of the senate of Indiana, and the protest of members of the house of representatives of the said State against the election of the Hon. Graham N. Fitch, submitted a report (No. 427), accompanied by the following resolution:

"Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member and all persons protesting against his election be permitted to take testimony on the allegations of the protestants and the sitting member, touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis."*

[A short debate as to whether the resolution is a privileged question or not is found on pages 907, 908 of the Congressional Globe, 3d sess. 34th Cong., 1856-'57.]

This report is found in Senate Reports, 3d sess. 34th Cong., Report No. 127. It is not printed here, as it is substantially the same as the report made March 13, 1857, on the same subject, which is printed.

79908-S. Doc. 1036, 62-3-18

MONDAY, March 2, 1857.

The Senate proceeded to consider the resolution reported by the Committee on the Judiciary on the credentials of the Hon. Graham N. Fitch, a Senator from the State of Indiana; and

After debate,

On motion by Mr. Weller that it lie on the table, it was determined in the affirmative—– yeas 28, nays 23.

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Adams, Allen, Bayard, Benjamin, Biggs, Brown, Butler, Clay, Crittenden, Douglas, Fitzpatrick, Gwin, Hunter, Iverson, James, Johnson, Mason, Pearce, Pratt, Pugh, Reid, Rusk, Sebastian, Slidell, Stuart, Toombs, Toucey, and Weller.

Those who voted in the negative are Messrs. Bell of New Hampshire, Bright, Brodhead, Cass, Collamer, Dodge, Durkee, Fessenden, Fish, Foot, Foster, Hale, Harlan, Jones of Iowa, Jones of Tennessee, Nourse, Seward, Sumner, Thomson of New Jersey, Trumbull, Wade, Wilson, and Wright.

So it was

Ordered, That the resolution lie on the table.

[A debate on the adoption of the resolution is found on pages 1034-1040 of the Congressional Globe, 3d sess. 34th Cong., 1856-'57.]

MR. BRIGHT'S CREDENTIALS.

Mr. Cass presented the credentials of the Hon. Jesse D. Bright, elected a Senator by the legislature of the State of Indiana, to serve as such until the 4th day of March, A. D. 1863; which were read.

[Special session of Senate, March, 1857.]

WEDNESDAY, March 4, 1857.

The credentials of Mr. Bright having been heretofore presented to the Senate, the oath prescribed by law was administered to him by the President pro tempore, and he took his seat in the Senate.

On motion by Mr. Trumbull,

MONDAY, March 9, 1857.

Ordered, That the papers on file relating to the election of the Hon. Graham N. Fitch by the legislature of Indiana be referred to the Committee on the Judiciary.

[A brief debate took place, which is found on pages 385, 386 of the Appendix to the Congressional Globe, 3d sess. 34th Cong., 1856-'57.]

FRIDAY, March 13, 1857.

Mr. Toombs, from the Committee on the Judiciary, to whom were referred the papers relating to the election of the Hon. Graham N. Fitch, by the legislature of the State of Indiana, as a Senator in the Congress of the United States, submitted a report (No. 2), accompanied by the following resolution:

"Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member and all persons protesting against his election, or any of them, by themselves or their agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting member touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis."

The Senate proceeded, by unanimous consent, to reconsider the said resolution; and, A motion having been made by Mr. Trumbull to amend the resolution,

After debate,

On motion by Mr. Mason,

Ordered, That it lie on the table

On motion by Mr. Toombs,

Ordered, That the report and all the accompanying papers be printed.

[The debate which took place this day on the adoption of the resolution is found on pages 392-396 of the Appendix to the Congressional Globe, 3d sess., 34th Cong., 1856-'57.]

REPORT OF COMMITTEE. *

[The committee consisted of Messrs. Butler (chairman), Bayard, Toombs, l'ugh, Benjamin, Collamer, and Trumbull.]

The committee have had the same under consideration, and find that important matters of fact alleged by the protestants in connection with the manner in which the election of the sitting member was had are denied by him, and that it becomes necessary, in the opinion of the committee, to take the testimony of persons residing in the State of Indiana, for the better ascertainment of these disputed facts. For instance, it is, among other things, alleged by a portion of the protestants that "there was no joint convention of the two houses of said general assembly on said day" on which the election in dispute took place, and that a minority only of the legally sitting senators of Indiana participated in said election, which statements are denied by the sitting member; and he affirms, on the contrary, that "he was elected to said office by a majority of all the members composing the legislature of the State, they being then and for that purpose assembled in joint convention," and that he was elected whilst in such joint convention by a majority of the legally qualified members of the senate of the State and of the legally qualified members of the house of representatives, respectively. For the proper ascertainment of these contested facts, and the better elucidation of the matters in dispute contained in the several protests herewith submitted, and the reply of the Hon. Graham N. Fitch, your committee recommend that leave be given to take testimony in the city of Indianapolis and State of Indiana, and recommend the adoption of the following resolution:

Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a Senator returned and admitted to his seat from the State of Indiana, that the sitting member, and all persons protesting against his election, or any of them, by themselves, or their agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting member touching all matters of fact therein contained, before any judge of the district court of the United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis.

To the Senate of the United States:

The undersigned, duly elected and qualified members of the house of representatives of the general assembly of the State of Indiana, hereby protest against the pretended election of Jesse D. Bright and Graham N. Fitch, on the 4th day of February, A. D. 1857, as Senators of the State of Indiana in the Congress of the United States, the former for the six years from the 4th day of March next, and the latter for the six years from the 4th day of March, 1855, by a portion of the senators and representatives of said general assembly, for the following reasons:

First. There was no agreement of the two houses of the general assembly, by resolutions or otherwise, to proceed to the appointment or election of Senators in Congress on said day, or any other day of the present session of the general assembly..

Second. There was no joint convention of the two houses of the said general assembly on said day; nor was there any law of the State authorizing a joint convention on that or any other day for the appointment or election of United States Senators; nor was there any resolution, or joint resolution, approved or adopted by the two houses of the said general assembly, or either of them, authorizing such joint convention.

Third. Said pretended joint convention was a mere assembly of a portion of the senators and representatives of the said general assembly, not in a legislative capacity, but as individuals, without any authority of law, without precedent in the history of legislature of the State, and having no legislative sanction; and said senators and representatives, when so convened, had no more constitutional right to appoint or elect Senators than any equal number of private citizens of the State.

Fourth. There was not a constitutional quorum of either house of the general assembly present in said pretended joint convention, there being only twenty-three senators and sixty-one representatives, when, by the eleventh section of the fourth article of the constitution of this State, it requires two-thirds of each house to constitute a quorum to do business, and when, by the law of the State, the number of senators is fixed at fifty, and the number of representatives at one hundred, in said general assembly.

Fifth. Because the undersigned, as legally elected and qualified representatives in said general assembly, have been deprived of their constitutional right to assist in the legal election of the Senators in the Congress of the United States by said illegal, revolutionary, and unauthorized election.

*This report, which was the second one made on the credentials of Mr. Fitch, is found in Senate Reports, 3d sess. 34th Cong., Report No. 2. Pages 5-39 of the report are here omitted. They contain certain proceedings of the legislature and additional protests of members thereof.

Sixth. Because the legislature of Indiana, as such legislature, either by separate action of the two houses, or otherwise, as such legislature, had no part or voice in such pretended elections, and the same were in direct violation of the third section of the first article of the Constitution of the United States and the fourth section of the said article.

Seventh. Because said pretended elections are wholly void.

Eighth. Because if said elections are held valid, such decision will destroy the legal existence of the general assembly of this State, and install in its place any mob which may see proper to take forcible possession of the house as a joint convention of the general assembly, without the concurrence of either body, the sanction of the Constitution, or authority of law.

For these and other reasons which might be named, the undersigned protest against the validity of said pretended elections, and ask that the Senate of the United States may declare them null and void.

Given under our hands this 4th day of February, at Indianapolis, A. D. 1857.

The undersigned, a Senator of the United States from the State of Indiana, and now acting as a duly qualified Senator of the United States, submits to the honorable the Judiciary Committee of the body to whom the validity of his election has been referred, the following, as points upon which he believes and is advised that his own rights and the rights of his State require that evidence be taken and be before the committee in order to enable them to decide understandingly and justly in the premises:

First. That he was elected to said office by a majority of all the members composing the legislature of the State, they being then and for that purpose assembled in joint convention.

Second. That he was elected, whilst in such joint convention, by a majority of the legally qualified members of the senate of the State and of the legally qualified members of the house of representatives, respectively.

Third. That in order to ascertain the facts stated in the preceding point, he will be able, by evidence, to show that three of the persons who are contesting his election were not then, and are not now, legally members of the said State senate, and had no right whatever, under the laws and constitution of the State, to be considered, or, in any particular, to act as members of that body; and that this was at the time, and still is, well known to the other contestants.

Fourth. That in the organization of the State senate, according to the constitution, laws, and usage of the State, the lieutenant-governor presides and superintends the admission of the members, and the taking the required oaths of office. That upon this occasion, in violation of such constitution, laws, and usage, the said three members, who were without the expressly required credentials of election, the certificate of the proper and only returning officer, and whose seats were also known to be contested, and on grounds of fraud, also known to be true, were, by a presiding officer, chosen for the purpose by the members of the senate, designated as Republicans, contrary to all law, and by naked wrong, directed, notwithstanding, to be sworn in, and for the clear purpose, illegal and fraudulent in fact, of defeating an election of Senators of the United States. Fifth. That the said convention by whom, as hereinbefore alleged, the undersigned was elected a Senator of the United States, was assembled in accordance with an express provision of the constitution of the State, and that, in accordance with the long and uniform usage of the State in that particular, the same was adjourned from day to day by the proper presiding officer thereof, and vested with the authority so to adjourn, and that each adjournment was made without objection by a majority of the senate, even considering the three persons aforesaid to have been members of that body being present.

Sixth That there is not now, in said State, as the undersigned is advised, any law for