The Constitution of the United States provides that "each house shall be the judge of the elections, returns, and qualifications of its own members." (Article 1, section 5.) The members of the House of Representatives are to be chosen by the people of the several States having the qualifications requisite for electors of the most numerous branch of the State legislature. The members of the Senate are to be chosen by the legislatures of each State, and the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. Congress having passed no law on the subject, we must look into the statutes of the several States for those regulations and conform our action to them. The Senators from each State are equal in number, and cannot be increased or diminished even by an amendment of the Constitution without the consent of the States respectively. They are chosen by the States as political sovereignties, without regard to their representative population, and form the Federal branch of the National Legislature. The same body of men which possesses the powers of legislation in each State is alone competent to appoint Senators to Congress for the term prescribed in the Constitution. In the performance of this duty the State acts in its highest sovereign capacity, and the causes which would render the election of a Senator void must be such as would destroy the validity of all laws enacted by the body by which the Senator was chosen. Other causes might exist to render the election voidable, and these are enumerated in the Constitution, beyond which the Senate cannot interpose its authority to disturb or control the sovereign powers of the States vested in their legislatures by the Constitution of the United States. We might inquire, was the person elected thirty years of age at the time of his election? Had he been nine years a citizen of the United States? Was he at the time of his election a citizen of the State for which he shall have been chosen? Was the election held at the time and place directed by the laws of the State? These are facts capable of clear demonstration by proofs, and in the absence of the requisite qualifications in either of the specified cases, or if the existing laws of the State regulating the time and place for holding the election were violated, the Senate, acting under the power to judge of "the elections, returns, and qualifications of its own members," might adjudge the commission of the person elected void, although in all other respects it was legal and constitutional. But where the sovereign will of the State is made known through its legislature, and consummated by its proper official functionaries in due form, it would be a dangerous exertion of power to look behind the commission for defects in the component parts of the legislature, or into the peculiar organization of the body for reasons to justify the Senate in declaring its acts absolutely null and void. Such a power, if carried to its legitimate extent, would subject the entire scope of State legislation to be overruled by our decision, and even the right of suffrage of individual members of the legislature whose elections were contested might be set aside. It would also lead to investigations into the motives of members in casting their votes. for the purpose of establishing a charge of bribery or corruption in particular cases. These matters, your committee think, properly belong to the tribunals of the State, and cannot constitute the basis on which the Senate could, without an infringement of State sovereignty, claim the right to declare the election of a Senator void who possessed the requisite qualifications and was chosen according to the forms of law and the Constitution. These general views are offered to show that contested elections in the popular branch of Congress, where the people exert in their primary capacity the right of suffrage under various limitations and restrictions in the choice of Representatives from certain prescribed districts, open a much wider field of inquiry and investigation than a like contest for a seat in the Senate, which is a body wholly federative in its character and organization and whose members hold their appointments from and represent the States as political sovereignties. Your committee having regard to these rules as applicable to all contested elections in the Senate, proceed to apply them to the case now under consideration.

It is admitted that the sitting member, Asher Robbins, possesses all the qualifications required by the Constitution of the United States to be a Senator in Congress, and that his commission as such is in due form according to the laws and usages of Rhode Island. These points being conceded, the remaining and the only question to be decided is, was the body by which he was chosen a Senator the legislature of Rhode Island? or was it merely an assemblage of citizens without authority to pass laws prescribing that which is right and prohibiting that which is wrong to the people of the State? On this ground both parties seem content to rest their claims to a seat in the Senate.

The general assembly of Rhode Island, as at present organized, consists of two separate and distinct branches: The senate, over which body the governor presides, and the house of representatives—each chosen by the people of the State who are freemen or freeholders and entitled to vote at elections. The governor and senate are elected annually; the members of the house of representatives, semi-annually. To constitute a

legislature capable of enacting laws or performing any other duty confided to that body by the constitution of the State or of the United States it is essential that there should be in existence at the same time a governor or some officer authorized to perform the executive functions, a senate, and a house of representatives. In the absence of either the other branches could not perform any act which would be obligatory on the people of the State. We are then brought to the inquiry whether these component parts of the legislature of Rhode Island were assembled at Providence in January, 1833, when Mr. Robbins was elected in grand committee a Senator to Congress? It is alleged on the one hand that the governor and senate had ceased to exist in the month of May, 1832, by the expiration of the term of one year for which they had been elected and the failure of the people to elect their successors by a majority of all the votes given in, according to the constitution and laws of the State. On the other, it is maintained that the powers of the governor and senate were by law extended until their successors should be duly chosen and engaged, for which purpose special elections were ordered and held, but without success, prior to the time at which Mr. Robbins was elected. For the purpose of forming a correct judgment of this anomaly in the constitution of the State it is necessary to recur to the ancient charter of Charles II, of England, granted to the colony of Rhode Island and Providence Plantations in 1663, which has not been superseded by a written constitution since the Revolution, and to the various laws which have been enacted modifying the provisions of that charter in such manner as to adapt it to the condition and convenience of the people of the State. By the charter certain political powers, rights, and privileges are granted to the inhabitants of the colony, among which are the following:

"And further, we will and ordain, and by these presents, for us, our heirs and successors, do declare and appoint that, for the better ordering and managing of the affairs of the said company and their successors, there shall be one governor, one deputy governor, and ten assistants, to be from time to time constituted, elected, and chosen, out of the freemen of the said company for the time being, in such manner and form as is hereafter in these presents expressed; which said officers shall apply themselves to take care for the best disposing and ordering of the general business and affairs of and concerning the lands and hereditaments hereinafter mentioned to be granted, and the plantation thereof, and the government of the people there."-Charter of R. I., page 6, Digest 1822. "And that forever hereafter, twice in every year, that is to say, on every first Wednesday in the month of May, and on every last Wednesday in October, or oftener in case it shall be requisite, the assistants, and such of the freemen of the said company, not exceeding six persons for Newport, four persons for each of the respective towns of Providence, Portsmouth, and Warwick, and two persons for each other place, town, or city, who shall be from time to time thereunto elected or deputed by the major part of the freemen of the respective towns or places for which they shall be so elected or deputed, shall have a general meeting or assembly, then and there to consult, advise, and determine in and about the affairs and business of the said company and plantations. And further, we do, of our especial grace, certain knowledge, and mere motion, give and grant, unto the said governor and company of the English colony of Rhode Island and Providence Plantations in New England, in America, and their successors, that the governor, or, in his absence, and by his permission, the deputy governor of the said company for the time being, the assistants, and such of the freemen of the said company as shall be so as aforesaid elected or deputed, or so many of them as shall be present at such meeting or assembly as aforesaid, shall be called the general assembly; and that they, or the greatest part of them then present, whereof the governor or deputy governor and si■ of the assistants, at least to be seven, shall have, and hereby have, given and granted unto them full power and authority from time to time, and at all times hereafter, to appoint, alter, and change such days, times, and places of meeting and general assembly as they shall think fit, &c."

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And from time to time to make, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms and ceremonies of government and magistracy, as to them shall seem meet for the good and welfare of the said company, and for the government and ordering of the lands and hereditaments hereinafter mentioned to be granted, and of the people that do, or at any time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and constitutions so made be not contrary and repugnant unto, but as near as may be agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there."-Digest of 1822, pages 6, 7, 8 of Charter.

"And further, our will and pleasure is, and we do hereby for us, our heirs and successors, establish and ordain that yearly, once in the year forever hereafter, namely, the aforesaid Wednesday in May, and at the town of Newport, or elsewhere, if urgent occasion do require, the governor, deputy governor, and assistants of the said company, and other officers of the said company, or such of them as the general assembly shall think

fit, shall be in the said general court or assembly to be held from that day or time, newly chosen for the year ensuing by such greater part of said company for the time being as shall be then and there present."-Digest of 1822, page 9 of the Charter.

These extracts from the charter will serve to show the original structure of the government of Rhode Island and Providence Plantations. The charter provides that the governor, deputy governor, and assistants shall be chosen annually on the first Wednesday of May in each and every year by a majority of the company at Newport. The deputies to the general assembly were to be chosen in the several towns for which they were elected semi-annually, and to assemble on the first Wednesday in May and the last Wednesday in October, or oftener, in case it should be requisite, at such place as might be designated by law. The governor, deputy governor, assistants, and deputies, as organized under the charter, formed one body, which is called the general assembly.

The unlimited power granted to this body to repeal or modify the existing regulations for the government of the colony, or to adopt such new regulations as might be deemed expedient for the convenience of the people, has been exercised from time to time before and since the Revolution, when Rhode Island became one of the States of the Union. These modifications have materially changed the provisions of the charter, and established fundamental principles of government inconsistent with those recognized and ordained by the charter, which now remains only the nominal foundation of the legislation of the State. Your committee think it necessary to present a summary of these interpolations on the charter, as they furnish a practical illustration of the powers claimed and exercised in this respect by the general assembly of Rhode Island, the validity of which does not seem to have been at any time questioned:

1. By the last clause of the charter above cited the election of governor, deputy governor, and assistants is required to be made at Newport on the first Wednesday of May in each year by the whole body of the freemen of the company assembled at that place in person. This is the literal requirement of the charter, and was made, we presume, in conformity to analogous customs in England and Wales in the elections for counties and boroughs. The difficulty of convening the freemen from the different towns of the colony at the season indicated, and the expense and inconvenience attending their assemblage at Newport for an uncertain length of time until an election could be effected, very speedily suggested a modification of this requirement. As early as October 26, 1664, a little more than one year after the reception of the charter, after stating the inconveniences attending a personal voting at Newport, the general assembly ordained that "voting by proxces be enjoyed by all the freemen of this collony, and that each freeman desiering to vote by proxy shall subscribe their names on the outside, and deliver his votts sealed up into the hands of a majestrate in the face of a towne metting lawfully called, and notice given for that porpose * * * which sayd votts shall be by such whome the General Assembly shall appoynt, opened and delivered forth as the respective choice of the several votts shall requier; provided that this order shall noe way prejudice or discorradge any who desier to be personally present."-Ancient Records, page 256. This palpable departure from the original provisions of the charter continued to be the law of Rhode Island for nearly a century, viz, until August, 1760, when a different arrangement was substituted, but still more manifestly departing from the literal requirements of that instrument.

2. As stated in our remarks immediately following the passages of the charter above cited, the general assembly of the colony was constituted into one body, consisting of a governor, deputy governor, and ten assistants, and so many deputies elected from the freemen of the several towns as are specifically stated in the second of those quotations. This single body was invested with all the powers, legislative and judicial, which the clauses of the charter enumerate, and acted as a single body, determining its acts by a majority of voices for the three successive years subsequent to its creation by charter. In March 27, 1666, at the suggestion of the towns of Portsmouth and Warwick, an act passed the general assembly "concerning deputies sitting apart." After stating the inconveniences of a single assembly, they enact and declare that "it is freely agreed that the request of the towns aforesaid be granted, and ordered that the magestrates" (governor, deputy governor, and assistants) "sitt by themselves, and the deputies by themselves; and that each house soe sitting have equal power and priviledge in the proposing, composing, and propogatting any act, order, and law in generall assembly, and that nether house in generall assembly shall have power, without the concurrance of the majour part of the other house, to make any law or order to be accounted as an acte of the generall assembly."-Ancient Records, page 298.

This law of the assembly of 1666, and not the charter, is the whole basis of the present organization of the legislature of Rhode Island, which consists, as we have before stated, as at present constituted, of two branches-a senate and a house of representa tives, each armed with a negative upon the other.

3. The act of August, 1760, is another and remarkable departure from the literal requirements of the charter of King Charles. By the charter itself the whole body of freemen

of the colony were to assemble, in person, at Newport, and to elect, by a major vote of the company, the governor, deputy governor, and assistants. The law of October, 1664, relaxed this provision and substituted a mixed system of voting for these officers, partly in person and partly by proxy. This continued to be in force until the session of the general assembly in August, 1760, when a law was passed entitled "An act regulating the general election." In the preamble to this act it is set forth that it is found, by long experience, the freemen going to Newport to put in their votes for general officers at the elections is very injurious to the interest and public weal of the colony; and that all the ends of voting may be as fully attained by the freemen's putting in their proxy votes at the town meeting in their own towns, appointed by law for that purpose, agreeable to the ancient and laudable custom of most of the prudent freemen: Therefore,

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"Be it enacted, That, for the future, every freeman who is disposed to give his suffrage at the election of general officers in this colony shall do it by putting in a proxy vote in the town meeting in the town to which he belongs, on the third Wednesday of April next preceding the general election, agreeable to the law and well-known custom of proxing; and no freeman shall be permitted to vote for general officers at the general election held at Newport, on the first Wednesday in May, but only such as be members of the general assembly."

Thus, by this act of the legislature, the whole system of voting laid down by the charter is radically altered. The assembling of the freemen of the colony at Newport on the first Wednesday in May, as the charter prescribes, is entirely abrogated; the mixed method of voting, partly in person and partly by proxies sent to Newport from the other towns of the colony, is also modified; and the whole system is changed to the law as it now stands, with very slight variations, viz, that the freemen, on the third Wednesday of April in each year, in their several towns, shall proceed to elect a governor, deputy governor, and assistants, and not in one body assembled in Newport, on the first Wednesday in May.

The law of 1760 was deficient in one important particular, which the act of January, 1832 (the particular act now complained of), was intended to remedy. Formerly, and from the reception of the charter until August, 1760, a failure to elect general officers was a contingency not to be apprehended, because the freemen assembled at Newport would continue assembled and voting until a choice were effected. But by the act of August, 1760, the freemen were to vote in separate towns, and the votes thus given having been transmitted to Newport, were counted in the presence of the governor and assistants of the former year, in convention with the deputies then recently elected. If it appeared, on counting, that there was no choice by the major part of the freemen, there was no provision in this act for a second trial for these offices in the separate towns; and the body of the freemen not being assembled in Newport, it was impossible to go on in the ancient method and continue to vote till the choice was consummated. If the requirements of the charter, and the usages under it, had been strictly complied with, the body of the freemen would have appeared at Newport, the governor and assistants of the former year would have presided in the election, and the voting would have gone on until an election were completed. The act of August, 1760, having changed this arrangement in the manner above stated, all that the act of January, 1832, did was to follow out its provisions, and to declare that the governor and assistants of the former year should hold over, while other trials were had in the separate towns, and until an election of general officers was effected by those trials, exactly as they would have held over if the election had been made by the body of the freemen assembled at Newport. But of the character of this act your committee will speak more particularly hereafter.

4. Your committee will barely advert to two other acts of the legislature of Rhode Island which conflict more or less with the provisions of the charter, but whose validity they believe has never been disputed; such as the act devolving the powers and duties of governor on a person who had never been elected by the freemen to that office, in certain cases; also, the act authorizing the governor, in certain events, to appoint times and places of the meeting of the general assembly, although the charter provides that the assembly itself shall appoint such times and places; both these acts being embodied in "the act to provide for the performance of the duties of the governor in certain cases, and also for regulating the sitting of the general assembly."-Digest of 1822, page 99. One other act of the general assembly deserves notice in this connection, as illustrating in a striking manner the peculiar character, of legislation in Rhode Island. The bill of rights, which in all other States emanates from the people in their primary capacity, in this State is incorporated into its code of statutes in the form of an act declaratory of the rights of the people.

The foregoing review of the innovations made from time to time during the existence both of the colonial and State governments of Rhode Island on the provisions of the char ter conferring on the people political rights demonstrates the power claimed and exer

cised by the general assembly to alter or modify, without restraint, the fundamental principles of the form of government transmitted to them by the King of Great Britain This power has never been denied either in reference to its validity or extent. The right of suffrage has been extended to a class of citizens who did not enjoy it under the charter; the elections directed to be held at Newport on the first Wednesday of May in each year are held throughout the State on such days and at such places as are provided for by law; the manner of holding and conducting elections and of returning the votes is changed; the general assembly is divided into two separate branches, each having a negative on the action of the other, contrary to the charter, by which it is constituted into one body; a bill of rights, which properly belongs to the constitutions of the several States as a part of the fundamental law, has been given to the people of Rhode Island by a simple act of legislation. These, and many other primary principles, are to be found in the code of statute law of that State, while of the ancient charter there seems to be scarcely a vestige remaining untouched, except that clause which prohibits the enactment of any law contrary to the laws of England, and this became obsolete by virtue of the Revolution. The people of the State have ratified all these changes, not only by their silent acquiescence, but by their positive sanction. The power to make them was necessary to the welfare of the people, and was wisely reserved in the precise words of the charter. Your committee can perceive nothing in the act of January, 1832, entitled "An act in addition to an act entitled 'Anact regulating the manner of admitting freemen, and directing the method of electing officers in this State,'" which assumes a power different in its charater from that which had been previously recognized as appertaining to the general assembly. The necessity of proper precautions to prevent an interregnum in the government of the State was seen and duly considered by the legislature. They believed it to be not only possible but highly probable that the people might fail at the regular annual election to choose a governor, lieutenant-governor, and a sufficient number of senators to form a constitutional quorom for the transaction of business. The result proves that this apprehension was well founded. The first section of the act declares that in case there be no choice of a governor at an annual election the house of representatives shall order a new election for the choice of a governor, and that in case no choice should then be made, that the order shall be renewed as often as the votes are returned to the general assembly until a governor be elected, or until such proceedings shall become unnecessary by reason of the provision of law for the next annual election; and in the mean time that the governor of the preceding year shall continue, under his former engagement, to exercise all the powers and perform and execute all the functions or duties of the office of governor until another shall be elected and engaged in his place; and shall receive such proportion of the salary as corresponds with the time he shall so serve. The same provisions are made as to the lieutenant-governor and all the other general officers, in case of a like failure to elect those officers at the annual election. The third section of the act relates to the choice of senators (assistants), and directs that new elections shall be ordered as in the cases above mentioned and with the same limitations, unless six senators, being the requisite number to form a quorum, shall have been chosen at the annual election. The contingencies intended to be provided against by this act actually occurred. No governor nor lieutenant-governor was chosen to succeed those of the past year; the number of senators required for a quorum were not elected by the people; and, in compliance with the provisions of the act, new elections were ordered by the house of representatives where a failure to elect had happened, until in the judgment of that house "such proceedings had become unnecessary by reason of the provision of law for the next annual election. The general assembly, in the mean time, as at that time constituted, continued to perform all the functions which properly belong to that body until the end of the session at Providence, January, 1833. It remains then to be inquired, was this body so assembled the legislature of Rhode Island? The law by virtue of which they continued to exercise the powers of legislation is said to be repugnant to the charter, and therefore void If this be a sound objection it at once annuls every part of their proceedings, and as a necessary consequence, that of choosing a Senator in Congress.

Your committee are unable to find any clause in the charter which forbids the exercise of such a power as that claimed by the passage of the act of January, 1832. It seems, on the contrary, to have been the intention of the crown to perpetuate the existence of the legislative power in the colony by an express provision-that the authority, office, and power of the governor, deputy governor, and assistants shall cease and determine when their successors shall be elected and engaged, and not at the expiration of the term for which they were respectively chosen. The construction of this clause of the charter has been uniform from the commencement of the government up to the present time.

The governor, deputy governor, and senators (assistants) of the preceding year, at the opening of each annual session of the legislature in May, take their seats, and join the house of representatives in grand committee and continue to act until their successors are engaged. This is abundantly sufficient to prove that they hoid over, as a matter of course