The

we are not at liberty to say the remedy prescribed was not intended for this case. On the contrary, the committee are of opinion the Constitution authorizes the executive power of the States respectively to order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the election of their successors. word "happen," made use of in the Constitution, is not necessarily confined to fortuitous or unforeseen events, but is equally applicable to all events which by any means occur or come to pass, whether foreseen or not; and as in this case confessedly the vacancy existed, it may properly be said to have happened, although the means or circumstances by which it was brought about may have been foreseen. With these views, fortified by many others which might be advanced, a majority of the committee have agreed on the following resolution, and instructed their chairman to report the same to the House:

Resolved, That Samuel J. Gholson and John F. H. Claiborne are duly elected members of the 25th Congress, and, as such, are entitled to their seats.

The House debated the case at length. The subjoined extracts indicate it character:

Mr. PENNYBACKER gave the reasons at some length which had operated upon his mind, as well as that of the majority of the committee, in coming to the conclusion he did. The facts of this case had been set specially by the committee in their report, and they were briefly and simply these. Messrs. Claiborne and Gholson were members of the 24th Congress. Their term of office expired with that Congress, which was on the 3d of March last. By the election laws of the State of Mississippi, it was provided that the general election for members of Congress, as well as other public functionaries, should take place at the times and places, and in the mode therein specified. The time fixed by that law for the election of representatives to the Congress of the United States was the first Monday in November biennially. Then the first Monday in the coming November would be the day it would have taken place, if it had not been for a state of things which was entirely unexpected. There would have been no necessity whatever for an extraordinary election to have taken place, had not the President deemed it proper to issue his proclamation convening Congress on the first Monday in September. The governor, seeing that the State of Mississippi would not be represented in the extra session of Congress, in virtue of the power he conceived conferred upon him, authorized an election to be held at an early day. The election was held in the month of July; but the governor, in issuing his proclamation and writs of election, limited the period for which these gentlemen were to be elected to the first Monday in November; and this question would come up as to how far he was authorized to do so. The governor had claimed this authority under that clause of the Constitution of the United States which had been referred to by the gentleman from Tennessee, which was, that "when vacancies happen in the representation of any State, the executive shall issue writs of election to fill such vacancies." Mr. P. contended that this was the plain and simple construction of the Constitution, and that it must be so construed. We must take the plain and simple meaning of words, and not place forced constructions upon them. In the very nature of things, all language must be defective; therefore we must endeavor to ascertain what was meant by those who made use of this language. It seemed to him, from the state of the facts given, and the literal meaning of words, that it was self-evident that such a vacancy had happened in this case as, was contemplated by the Constitution. The office of representative was created by the Constitution of the United States, and was as much an office, and as much one created by the Constitution, as the office of judge of the Supreme Court, President or Vice-President of the United States, or any other office created under the Constitution. The tenure of that office was two years, and it expired on the third day of March, and consequently the office became vacant on the fourth day of March, and remained so until it was filled.

Mr. LEGARE, who was entitled to the floor, contended that if Messrs. Gholson and Claiborne were elected at all, they were elected members for the ensuing two years. This was clear, beyond all controversy. The election had been held and conducted throughout in the strictest conformity with the laws of the State of Mississippi. The writ had been issued in due time, the proclamation of the governor had been made precisely at the time it ought to have been; and the whole election was carried on throughout according to law. The whole people of the State of Mississippi had been deeply interested in the contest: they attended the polls in full numbers, and decided the election of the gentlemen present by a very large majority. The question then was, whether this election, which was complete in all its parts,

exact in all its forms, and decisive beyond all controversy, was to be set aside as a mere nothing, the voice of a whole State stifled, and their representatives sent back. Mr. L. then quoted largely from "Binney on the Kentucky Election," and entered into a long argument to show that the election was strictly legal, and not at variance with the spirit and letter of the Constitution.

Mr. UNDERWOOD said that in reference to this particular election he could suggest a plausible reason why the present members should retain their seats-a reason which had not as yet been urged, and to which he confessed he should be puzzled to find an objection. It was this: The House of Representatives was composed of members chosen every second year, and the Constitution said that the States should regulate the manner and time of choosing them, unless Congress should interfere. The State of Mississippi had acted in accordance with this provision, and had elected her representatives to serve for the ensuing two years. The time of their election had not yet expired; and if they had been permitted to retain their seats to this period, in that view of the case, he would confess that if the objection were urged, he should be puzzled to set it aside. Under the letter of the Constitution there was nothing to prohibit it.

Mr. MASON, of Ohio, thought that if the governor of the State of Mississippi, with all his legal knowledge, both of the State law and that of the Constitution, was of opinion that the terms of election would expire with the present session, (and that was his opinion, he having inserted a clause in the writ to that effect,) then it would be a fair inference to suppose that the people of the State of Mississippi had a similar impression.

Mr. ADAMS said the question was not as to whether or not the vacancy had been filled, but whether it had been filled for the whole term of the present Congress. The law of the State of Mississippi made it clear, that althongh the governor had a right to issue his writ to fill the vacancy, it was only until superseded by the general election in November. He had no right to issue his writ for an election for the whole term, as was evident from the words, "until superseded," &c., which were added to the writ. These words had been inserted in conformity with the laws of that State, and had they been omitted, the governor would virtually have repealed the State law. But it might be taken for granted that a large portion of the people at the polls believed they were electing members for the whole term. Mr. A. went on to show that the present members could not retain their seats, unless re-elected the 1st of November, in conformity with the law of their State: but as they were here, he wished them to remain until the expiration of the present session, and then return home, when there would be no doubt of their being again chosen by the people.

The House voted, (October 3,) 118 yeas to 101 nays, that Messrs. GHOLSON and CLAIBORNE were duly elected members of the 25th Congress, and entitled to their seats. This, however, was not the end of the case. A congressional election was held in Mississippi in November, and Messrs. PRENTISS and WORD were returned to Congress, and they presented themselves with the usual credentials. Their memorial was referred to the Committee of Elections.

submitted a second report as follows:

IN THE HOUSE OF REPRESENTATIVES.

JANUARY 12, 1838.

They

Mr. BUCHANAN, from the Committee of Elections, to whom the subject had been referred, made the following report:

The Committee of Elections, to whom was referred the communication of S. S. Prentiss and Thomas J. Word, claiming seats in this house as representatives from the State of Mississippi, report:

That, by the order of the House, they believe a special duty merely was imposed on them, to wit, to report the facts of the case; and therefore submit the following statement without comment or inference :

Before

At the opening of the first session of the 25th Congress, on the 4th day of September, 1837, Messrs. Gholson and Claiborne appeared, were sworn, and took their seats in the House as members from the State of Mississippi. they were sworn, however, and before the House proceeded to an election of Speaker and Clerk, Mr. Mercer offered the following resolution, viz: "Resolved,

That sufficient evidence has not been afforded to this house that John F. H. Claiborne and Samuel J. Gholson are lawfully entitled to seats therein ;" which resolution, after some debate thereon, was laid upon the table, on motion of Mr. Bynum.

On the 11th of September it was voted by the House that the action of the several standing committees, on all matters not embraced in the message of the President of the United States to the two houses of Congress, communicated on the second day of that session, be suspended until the commencement of the annual session in December.

On the 13th of September, on motion of Mr. Gholson, the foregoing order was suspended, so far as it relates to the action of the Committee of Elections. On the 18th of September, in the House, on motion of Mr. Gholson, it was Resolved, That the Committee of Elections be instructed to report upon the certificate of election of Massrs. Claiborne and Gholson, the members elect from Mississippi, whether they are members of the 25th Congress or not; and that said committee take into their consideration the proclamation of his excellency Charles Lynch, governor of said State, and the writ of election issued in accordance with said proclamation, on the 13th day of June, 1837; and also the act of the legislature of Mississippi, entitled 'An act to regulate elections,' approved March 2, 1833.

The only evidence or documents exhibited to the committee under the above resolution consisted of the law of Mississippi; the writ of election issued by the governor, requiring an election to be held in July last, for members of Congress for a limited term; (all of which are set forth in the report of the committee of last session, being document No. 2 of that session, to which the committee refer as part of their report ;) and a certified statement of the votes given at that election, marked A.

Upon this evidence Messrs. Claiborne and Gholson, by a written argument submitted to the committee, and subsequently furnished to the members of the House, claimed to hold their seats in this house during the 25th Congress; and a majority of the committee thereupon made a report to the House, which concluded with the following resolution, viz:

Resolved, That Samuel J. Gholson and John F. H. Claiborne are duly elected members of the 25th Congress, and, as such, are entitled to their seats.

Which resolution, on the 3d day of October, was adopted by the House. The proclamation of the secretary of the State of Mississippi, declaring the number of votes at the July electiona, and that Messrs. Claiborne and Gholson were elected to "the called session of Congress," marked B; and the credentials, as required by the law of Mississippi, under the hand of the governor and the great seal of the State, declaring that Messrs. Gholson and Claiborne were duly elected to be members of Congress until the regular election should be had under the law of the State, in November next thereafter, although issued and in cxistence, were not presented to the committee at the last session, nor relied upon by Messrs. Gholson and Claiborne as any part of their evidence; nor considered by the committee in reaching the result to which they came in the resolution presented to the House. Inquiries, however, were made by a member or members in relation thereto. Answers were given; but by whom given, and of what import, are not now remembered with sufficient distinctness and unanimity to be incorporated with this report. The committee would add, however, that, differing as they did, essentially, in their views of the case, the production of the papers in question would not have changed the opinions which they formed on its merits.

The committee further report, that an election was held in Mississippi, according to the forms of law, on the first Monday and day following in November last, which resulted as per statement marked C.

They further report the credentials of Messrs. Prentiss and Word, as contained in document marked D.

The committee report document marked E, as the constitution of Mississippi. The "statement marked C," shows that the contestants received several thousand majority in the November election. Their credentials were in the usual form. The facts in the case were correctly stated by Mr. Martin, in the House debate. They are as follows:

During the past summer, it was considered necessary by the President of the United States that the twenty-fifth Congress should convene its first session on the first Monday in September last, and for that purpose, by his proclamation, ordered Congress to meet upon that day. By the laws of Mississippi, the time fixed for the election of her members to the present Congress was the first Monday and day following in November last. The governor of that State, by his proclamation, ordered an election to be held in July, for the election of members to serve until superseded by those to be elected in November, the time fixed by law for holding the regular election. At the election in July, the sitting members were candidates, and were opposed by one of the applicants (Mr. Prentiss) and another gentleman, the result of which was their return by a large majority of all the votes cast. At the meeting of the session thus called, the sitting members presented themselves, and having participated in the election of Speaker, as is usual in such cases by all the members returned, were duly sworn and took their seats. Some question being made by the honorable gentleman from Virginia, (Mr. MERCER,) as to their right to seats as members, one of the sitting members (Mr. GHOLSON) called upon the House to institute an inquiry upon the subject, alleging, as bis reason for doing so, that he wished the question settled in time for him to return to Mississippi, if he should be adjudged not entitled, before the time for holding the regular election in November, that the people might be informed, and hold another election. The House complied with that request, by the adoption of the resolution offered by that gentleman, referring the inquiry to the Committee of Elections, who, after examination, made their report, accompanied by a resolution declaring the sitting members duly elected members of the twenty-fifth Congress; which resolution, so declaring, was, after full examination and discussion, adopted by this House.

In addition to the legal presumption that the adoption of this resolution was known to the people of Mississippi, that fact was made known to them through the newspapers, and other channels of communication, by the sitting members, so that before the election in November, the electors of that State were fully informed of the decision of the House, and of the determination of the sitting members to rely upon that decision. These facts are admitted on all sides of the House. The applicants alone were candidates at the November election, obtaining a majority of the votes cast for Congress, but less than half of the whole vote polled at that election; and that, too, after a general canvass through the counties of the State by the applicants, as stated by Mr. Prentiss. These, I believe, sir, are most of the important facts and circumstances upon which this application is founded. There are certainly no others that I have heard which tend in the slightest degree to strengthen the claims of the appli

eants.

Mr. GHOLSON also stated that—

His colleague and himself were not before the people at the November election, and they distinctly stated to the people, in a printed circular addressed to them, that they were not candidates upon that occasion. That circular was published, and it was announced, at least in all the democratic papers of the State, that they were not candidates. Mr. G. also wrote at least a hundred letters to his friends in different parts of the State, declaring that, in consequence of that decision, he was not a candidate.

Mr. G. further stated that, in twenty counties, where no votes were given for himself and his colleague in the November election, they received about five thousand votes at that of July; thus showing, conclusively, that there was no general turn-out of the people at the November election, induced, as he firmly believed, not to vote by the decision of the House. That was the main fact he wished to state. The House, by its vote, had said the election of July was void. Mr. G. was as well satisfied with that decision as any one else, but he wished them to vote, at least, with a knowledge of the facts.

In addition, Mr. G. had good grounds to know that the election in many other counties was partial, from the fact of his colleague and himself not being before the people, and therefore, by no kind of calculation, was the strength of parties tested in November. The people had been misled by the decision of the House.

After a somewhat lengthy debate, the House, (on January 31,) passed the following resolution-yeas 119, nays 112:

Kesolved, That the resolution of this House of the 3d of October last, declaring that SAMUEL J. GHOLSON and JOHN F. H. CLAIBORNE were duly elected members of the 25th Congress, be rescinded, and at Messrs. GHOLSON and CLAIBORNE are not duly elected members of the 25th Congress.

On the 3d of February the House voted, 118 to 116, that Messrs. Prentiss and Word, the contestants, were not entitled to seats in the House, and the governor of Mississippi was notified that the seats were vacant.

NOTE. The case will be found in proceedings and debates as follows: Vol. 5, Congress ional Globe, pages 80, 82, 85, 85, 96; Appendix, pages 85, 91, 223, 130; Vol. 6, pages 56. 104, 119, 145, 146, 148, 150, 155, 158, and Appendix, pages 68, 93, 124, 127.

TWENTY-FIFTH CONGRESS, THIRD SESSION.

DOTY vs. JONES, of Wisconsin Territory.

The sitting member was elected delegate in the fall of 1836, and claimed the right to rep resent the Territory in Congress till the 4th of March, 1839, upon the ground that his term did not commence till the 4th of March, 1837, although he took his seat in 1836. In 1838 Mr. Jones was elected delegate to represent the Territory. The committee held that Mr. Doty was entitled to the seat, and the House sustained the decision.

The report in this case is as follows:

That, by the order of the House as submitted to them, the only question which presented itself was, whether or not the Territory was entitled to a representation by a delegate? In deciding this question the committee could have no difficulty, and might have absolved itself from further trouble by reporting an affirmative resolution. But believing the intention of the House, in making the order, to have been that the committee should examine the whole ground, and not only report as to the right of representation, but also designate the person who was the rightful representative, they proceeded to perform that duty, and report the following as the result of their investigation: By the act of 20th of April, 1836, which act was to take effect the 4th of July following, the Territory of Wisconsin was organized and the territorial government established; and by the 14th section of that act it was declared "that a delegate to the House of Representatives of the United States, to serve for the term of two years, may be elected by the voters qualified to elect members of the legislative assembly, who shall be entitled to the same rights and privileges as have been granted to the delegates of the several Territories of the United States to the said House of Representatives; the first election shall be held at such time and place or places, and be conducted in the same manner, as the governor shall ap point and direct; the person having the greatest number of votes shall be declared by the governor to be duly elected, and a certificate thereof shall be given to the person so elected." By virtue and in pursuance of the said act of Congress, Henry Dodge, the governor of said Territory, (duly appointed,) issued a proclamation, dated the 9th of September, 1836, wherein, among other things, he orders and directs that the first election for members of the House of Representatives and council shall be held on the second Monday of October then next ensuing; and did also " direct and appoint that, at the same time and place specified for electing the members of said legislature, there shall be elected, by the voters of the several counties, one delegate to the Congress of the United States for the term of two years, agreeable to the 14th section of the act of Congress." In pursuance of said proclamation an election for a delegate in Congress was held, and George W. Jones was duly elected, as appears by the certificate of the governor, here with reported, and marked A.

It appears by the journal of the House of Representatives, that on the 5th day of December, 1836, Mr. Jones appeared, was qualified, and took his seat in the House as a delegate from Wisconsin Territory.

From further evidence before the committee, it appears an election for a delegate to Congress for the Territory of Wisconsin was held on the 10th day of September, 1838, in conformity with the act of Congress and the laws of the