Senate of the United States from 1861 till 1868. In pursuance of a constitution framed and adopted under what are known as the reconstruction acts, a legislature convened in Florida, Monday, June 8, 1868, the members of the assembly and half of the senate having been elected for two years, and the other half of the senate for four years.

This legislature, on the 16th day of June, 1868, being the second Tuesday after its meeting and organization, proceeded in accordance with the act of Congress of July 25, 1866, "regulating the times and manner of holding elections for Senators in Congress," to take action for the election of two United States Senators to fill the then existing vacancies for the terms expiring on the 3d of March, 1869, and the 3d of March, 1873. On Wednesday, the day following that on which each house had separately but without result voted for Senators to fill the two existing vacancies, the members of the two houses convened in joint assembly, elected a Senator to fill the vacancy expiring March 3, 1869, and adjourned till the next day, when they again assembled and elected a Senator for the term expiring March 3, 1873, and adjourned without date.

The next day (Friday) the members of the two houses, each house having previously concurred in a resolution to that effect, assembled again in joint convention for the election of a Senator to succeed the one whose term would expire on the 3d of March, 1869, when Abijah Gilbert, the present sitting member, was elected.

The petitioner was chosen by the same legislature in January, 1870, to represent the State in the Senate for the term commencing March 4, 1869, and now claims the seat occupied by Mr. Gilbert.

The elections of 1868 all took place before the passage of the act of June 25, 1868, which declared Florida entitled to representation in Congress.

Two objections are taken to the election of the sitting member:

1. That he was chosen by the legislature of a State not at the time recognized as entitled to representation in Congress.

2. That he was not elected in conformity with the act of July 25, 1866.

The first objection is answered by the fact that the subsequent recognition of the State as entitled to representation under the Constitution, in pursuance of which the legislature was elected and organized, related back to and made valid its acts from the time of its organization. Senators and Representatives from several of the reconstructed States have been chosen before the States were declared entitled to representation, and no one has ever questioned their right to seats when Congress subsequently recognized the government under which they were chosen as entitled to representation.

The only ground for the other objection arises from the fact that the legislature failed to take action on the "second Tuesday after its organization" in regard to the third Senator who was to be elected, but it took action on the subject of electing Senators, and actually voted, though unsuccessfully, on that day for persons to fill the two existing vacancies.

The object of the act of Congress was to insure the election of Senators by the proper legislature, and to fix a time when proceedings for that purpose should be commenced and continued till the elections were effected.

The legislature by which the sitting member was elected was the one chosen next preceding the term which would commence on the 4th of March, 1869, and was, therefore, the proper legislature to elect. "The second Tuesday after the meeting and organization of the legislature" was the time prescribed by the act of Congress for initiating the election of Senators, and that was the time when the legislature proceeded to that business. There being three Senators to elect, it took action on that day only in reference to two of them. Did its failure to take action on that day, and the two subsequent days (which were occupied in electing the first two Senators), in reference to the third Senator, render his election, in all other respects regular, invalid? The committee think not.

The language of the law is: "In case no person shall receive such majority on the first day, the joint assembly shall meet at 12 o'clock, meridian, of each succeeding day during the session of the legislature, and take at least one vote till a Senator shall be elected." No formal adjournment from day to day by vote of the joint assembly was necessary, but it was the duty of the members of each house to meet in joint assembly at noon of each day and vote at least once till all the Senators whom the legislature had the right to elect were chosen. This is exactly what the legislature did.

In no view which the committee can take would the petitioner be entitled to a seat in the Senate, for if the election of the sitting Senator was irregular, that of the petitioner, by the same legislature at a subsequent session, was equally so.

The committee recommend for adoption the following resolution:

Resolved, That Abijah Gilbert was duly elected a Senator from the State of Florida for the term commencing March 4, 1869, and is entitled to hold his seat as such.

FRIDAY, April 15, 1870.

Mr. Trumbull presented the memorial* of Ossian B. Hart, praying that he may be allowed to be heard in argument before the Senate in support of his claim to a seat in the Senate as a Senator duly elected by the legislature of the State of Florida.

Ordered, That it lie on the table.

[The debate is found on pages 2705, 2706 of part 3 of the Congressional Globe referred to in the head-note.]

THURSDAY, April 28, 1870.

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported from the Committee on the Judiciary, declaring that Abijah Gilbert was duly elected a Senator from the State of Florida for the term commencing March 4, 1869, and is entitled to hold his seat as such; and the resolution was agreed to.

[The debate is found on pages 3053, 3054 of part 4 of the Congressional Globe referred to in the head-note.]

MONDAY, May 2, 1870.

Mr. Howe submitted the following resolution; which was read the first and second times, by unanimous consent, and referred to the Committee to Audit and Control the Contingent Expenses of the Senate:

"Resolved, That the Secretary of the Senate be directed to pay out of the contingent fund of the Senate to O. B. Hart, claimant of a seat in the Senate from the State of Florida, the usual mileage of a Senator and the monthly pay from the date of presenting his credentials until the passage of the resolution declaring him not entitled to a seat.

TUESDAY, May 10, 1870.

Mr. Ferry, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution of May 2, 1870, to pay O. B. Hart the usual mileage of a Senator for one session and pay from the date of presenting his credentials until the passage of the resolution declaring him not entitled to a seat, reported it without amendment.

WEDNESDAY, May 11, 1870.

The Senate proceeded to consider, as in Committee of the Whole, the resolution to pay 5). B. Hart the usual mileage of a Senator for one session and the monthly pay of a Senator from the date of presenting his credentials until the adoption of the resolution by the Senate declaring him not entitled to a seat in the Senate of the United States as a Senator from the State of Florida; and no amendment being made, it was reported to the Senate.

Ordered, That it be engrossed and read the third time.

The said resolution was read the third time.

Resolved, That it pass.

• Found on page 2705 of part 3 of the Congressional Globe referred to in the head-note.

[Forty-second Congress-First session.]

JOSEPH J. REYNOLDS vs. MORGAN C. HAMILTON,

of Texas.

July 13, 1870, the credentials of Mr. Hamilton, elected for the term beginning March 4, 1871, were presented. March 3, 1871, the credentials of Mr. Reynolds, elected for the same term, were presented. March 4, both credentials were referred to the Committee on Privileges and Elections. The facts in regard to the elections were as follows: Texas had been without representation in Congress from 1861 to 1870. After the passage of the several acts for the reconstruction of Texas, but before the passage of the act declaring her entitled to representation in Congress, the legislature of Texas, in February, 1870, proceeded, in accordance with the act of Congress of July 25, 1866, “regulating the times and manner of holding elections for Senators in Congress," to the election of Senators to fill vacan cies in the terms ending March 3, 1871, and March 3, 1875. At the same time the legislature elected Mr. Hamilton for the term beginning March 4, 1871. The Senators elected to fill the vacancies were admitted to their seats. By the constitution of Texas there was another session of the same legislature after the elections referred to, and before March 4, 1871. The legislature at this second session passed a resolution declaring the election of Mr. Hamilton illegal, and on the second Tuesday after its organization elected Mr. Reynolds. Mr. Reynolds claimed the seat on the ground that the election of Mr. Hamilton was void, because he had been elected before the passage of the act declaring Texas entitled to representation, and because there was another session of the legislature after the election of Mr. Hamilton, and before the commencement of the term for which he was elected. March 18, the committee reported the facts as above, and the conclusions that the case was precisely like that of Hart and Gilbert (see page320); that the election of Mr. Hamilton had been in accordance with the act referred to, which declares that the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator," &c.; and that the subsequent recognition of the State government of Texas had made valid, by relation, its acts from the time of its organization, so that the fact that the State was not admitted to representation when Mr. Hamilton was elected was immaterial. They recommended that Mr. Hamilton be admitted to his seat. He was admitted without debate.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 41st Cong, and 1st sess. 42d Cong.; and the report of the committee from Senate Reports, 1st sess. 42d Cong., No. 2.

There were no debates.

[Forty-first Congress.]

WEDNESDAY, July 13, 1870.

Mr. Nye presented the credentials of Morgan C. Hamilton, elected a Senator in Congress by the legislature of the State of Texas for the term of six years commencing on the 4th day of March, 1871.

The credentials were read.

Ordered, That they lie on the table.

FRIDAY, March 3, 1871.

Mr Morton presented the credentials of Joseph J. Reynolds, elected a Senator in Congress by the legislature of the State of Texas for the term of six years commencing on the 4th day of March, 1871.

The credentials were read.

[First session of the Forty-second Congress.]

SATURDAY, March 4, 1871.

Mr. Flanagan here submitted a motion that the oaths prescribed by law be adminis tered by the Vice-President to Morgan C. Hamilton, whose credentials as Senator-elect from the State of Texas were presented on the 13th of July, 1870.

Mr. Morton presented a certified copy of a joint resolution of the legislature of the State of Texas, approved January 26, 1871, providing for the election of a United States Senator from that State on the 24th day of January, 1871, for the term of six years commencing on the 4th day of March, 1871, and declaring the election of Morgan C. Hamilton, on the 22d of February, 1870, as Senator for said term, illegal; which was read. On motion by Mr. Morton,

Ordered, That the resolution of the legislature of the State of Texas and the creden tials of Mr. Morgan C. Hamilton and Mr. Joseph J. Reynolds lie on the table.

MONDAY, March 13, 1871.

On motion by Mr. Anthony, Ordered, That the credentials of Joseph J. Reynolds, and the credentials of Morgan C. Hamilton, with the resolution of the legislature of Texas, declaring the election of said Hamilton on the 22d of February, 1870, as Senator from that State for six years from March 4, 1871, illegal, be referred to the Committee on Privileges and Elections.

WEDNESDAY, March 15, 1871.

The Vice-President laid before the Senate the credentials of J. J. Reynolds, elected a Senator in Congress by the legislature of the State of Texas for the term of six years, commencing on the 4th day of March, 1871.

The credentials were read.

[The letter accompanying the credentials states that inadvertently the governor had not signed the credentials presented March 3.]

SATURDAY, March 18, 1871.

Mr. Stewart, from the Committee on Privileges and Elections, to whom was referred the credentials of Morgan C. Hamilton, the credentials of Joseph J. Reynolds, and the resolution of the legislature of the State of Texas declaring the election of Morgan C. Hamilton illegal, submitted a report (No. 2) thereon, accompanied by the following resolution:

"Resolved, That Morgan C. Hamilton was duly elected a Senator from the State of Texas for the term commencing March 4, 1871, and is entitled to take his seat as such upon taking the required oaths."

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

REPORT OF COMMITTEE.

[The committee consisted of Messrs. Stewart, Morton, Rice, Hamlin, Hill, and Thurman.]

IN THE SENATE OF THE UNITED STATES.
MARCH 18, 1871.-Ordered to be printed.

Mr. Stewart, from the Committee on Privileges and Elections, submitted the following report:

The Committee on Privileges and Elections, to whom was referred the credentials of the Hon. Morgan C. Hamilton, Senator-elect from the State of Texas, submit the following report:

That in pursuance of the several acts of Congress for the reconstruction of the State of Texas, the legislature convened on the 8th and completed its organization on the 10th of February, 1870. On the 22d of February, 1870, second Tuesday after its organization, the legislature elected the Hon. Morgan C. Hamilton a Senator of the United States for the term commencing on the 4th of March, 1871.

The same legislature on the same day elected the Hon. J. W. Flanagan a Senator of the United States for the term ending March 3, 1875, and the Hon. Morgan C. Hamilton for the term ending March 3, 1871. These last two elections were to fill vacancies then existing, and both of these Senators were admitted to their seats.

By the constitution of Texas there was another session of the same legislature held in Texas, after the election of Mr. Hamilton, and before the expiration of his term. This session commenced on the 10th of January, 1871, and on the second Tuesday after its organization proceeded to the election of a Senator for the term commencing on the 4th of March, 1871, the same term for which Mr. Hamilton had been elected at the preceding session.

General J. J. Reynolds is represented to have been elected, although the certificate referred to the committee is not signed by the governor.

The reasons assigned for the election of General Reynolds are that the legislature had no authority to elect Mr. Hamilton at the time of his election, first, because the State had not at that time been recognized as entitled to representation in Congress; and, secondly, because there was another session of the legislature after the election of Mr. Hamilton, and before the commencement of the term for which he was elected.

The case of Hon. Abijah Gilbert, Senator from Florida, is precisely in point upon both of these questions.

The act of Congress of July 25, 1866, declares "that the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator

was elected to represent said State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress in the place of such Senator so going out of office, in the following manner."

The fact that the State was not admitted to representation until after the election of Mr. Hamilton is immaterial. The act admitting Texas to representation related back to the organization, and ratified the proceedings of the legislature.

The committee therefore recommend that Mr. Hamilton be permitted to take his seat on taking the oath prescribed by the Constitution and the laws.

MONDAY, March 20, 1871.

Mr. Morgan C. Hamilton, from the State of Texas, attended, and the oaths prescribed by law were administered to him by the Vice-President, and he took his seat in the Senate.