The resolves of the senate are those of the whole body. The mutinous senators, who usurped the name and power of the senate in said pretended convention, were subject to arrest by order of that body for absence, and the attempt to nullify the will of the majority by attempting a business at a time, place, and in a manner vetoed by that body, by a resolve, then unvacated and unrescinded. Said convention, if it existed, expired with the duty that called it into life. The president of the senate, when inaugurated governor, his office as president of the senate expired, and with it that of his deputy president. The president not only usurped the power to appoint a clerk-an office not known to the law and void-who only authenticated this pretended election by interpolating it into the journal of the house. This president, whose power expired with that of his creator, arrogated that of adjourning it to a fixed day; in other words, commanding it to obey his arbitrary rescript; and, at a subsequent one, the more imperious mandate, commanded them to proceed to elect senators, no agreement whatever having been had by the house therefor as to time, place, and manner. We aver that not only did no usage exist in Indiana, but that in no solitary instance was an election had without the consent of both houses, fixing time, place, &c., by law or resolution. While said pretended convention was in existence, but adjourned to a fixed day, numerous attempts were made in both houses to create one by the members who voted for Messrs. Bright and Fitch; thus offering evidence that they did not consider that one had been formed and was in existence. No forced convention could be had. Mutual consent was necessary, and it was never had by a vote, which is the only mode of altering the will of a legislative body.

The history of joint conventions in Indiana will also show that no other business was ever transacted than that for which it was specially convened. And we insist that the validity of the acts of a joint convention is due to the separate action of the two houses as the general assembly. It is also necessary to the validity of all elections by corporate bodies that notice be given of the time, &c.; and the journals of neither house show any such notice, or any conventional agreement for the same.

Upon the facts and law above no legal election could have been had.

To sustain the title of Messrs. Bright and Fitch, the constitution of Indiana, depositing her legislative power in two co-ordinate houses, must be broken down-that which requires twothirds of the members to exercise any of her attributes of sovereignty, and that one house cannot coerce the other. Not only is this election in defiance of these injunctions, but in the face of a positive dissent by one branch, armed by the people with an absolute veto. But a presiding officer, who is no part of the legislature, usurped the powers and prerogatives of the legislature; all the forms and guarantees with which the people hedged in their legisla tive servant were disregarded, and it is claimed that the act is as valid as if they had been observed.

To sustain Messrs. Bright and Fitch the constitution of Indiana is made a dead letter. Will the Senate, the peculiar guardians of State rights, reared up for that especial purpose, exclude Indiana from her weight and voice in it by instruments empowered by her? Will she be allowed to interpret her own constitution and acts, or will the Senate, under any pretence, blot her out of the confederacy, and realize all of those fears portrayed by some of the framers of the Constitution by an absorption of and encroachment upon State rights?

The legislative power enshrines and protects all rights subject to its jurisdiction. Prior to the confederation the several States owed this duty to their citizens. They did not surrender it, but intrusted it to the federal for their better protection, with the right guaranteed them of a voice in the Senate, as a means of enforcing this duty through the federal instrument.

We deny that under a constitutional grant of power, with prescribed modes of its exhibition, you can discriminate between elections and laws. The selection of a general, upon whose skill the fate of an army or the country may depend, or of a judge upon whose legal attainments and integrity the lives, liberties, and property of the citizen may depend, is of less moment than some petty law.

The same power is as requisite to the creation of the one as the other.

But it may be said that this question is res adjudicata.

We deny that our rights or title are barred by a decision had before they were created.

We deny that the judicial power of the Senate is capable of self-exhaustion. We deny that the political right of the State is capable of annihilation without annihilating the Constitution which creates the right.

We insist that the right to judge of the election and qualification of members must continue while the term continues.

The qualifications are continuing conditions of title.

We deny that courts are ever estopped by their own action.

We deny that sovereigns are estopped.

We deny that Indiana was, prior to this time, a party to the proceedings of the Senate, or had opportunity to allege or elicit the true facts.

We deny the power of the Senate, under the power to judge, to create senators for Indiana. We claim for her a superior knowledge of her own acts and grants.

We insist that the simple admission of a senator to his seat upon credentials is a decision, and that it was never pietended this precluded his ouster if his title were not good.

If the Senate have not power to exclude foreign elements at all times, it is not equal to the duties intrusted to its guardianship.

And we will not believe that the Senate is the only tribunal on earth whose wrongs, once done, are eternal and irrevocable.

W. M. McCARTY.
H. S. LANE.

In the case of the State of Mississippi, in the House of Representatives in the 25th Congress, the power to re-examine a decision made on an election of members was fully considered and decided. Gholson and Claiborne were, at a special election held on the proclamation of the governor, chosen representatives from that State to a special session of Congress called by the President. At that session exception was taken to them, but after some objection they were admitted to their seats. Their case and papers were referred to the Committee of Elections, who made report, and thereupon, on full and elaborate discussion, it was resolved that they were duly elected members of the 25th Congress, and entitled to their seats. This was in September. In November following an election was holden in said State, and Prentiss and Ward were elected members of the 25th Congress, who, in December following, presented their credentials and claimed their seats. It was then insisted in that case, as it now is in this, that the decision so before made was conclusive of the right of Claiborne and Gholson to their seats as members of the 25th Congress, and the whole matter was res adjudicata. But on full examination and after full discussion, the former resolution declaring said Claiborne and Gholson as duly elected members of the 25th Congress was rescinded.

We are therefore of opinion that the memorial of the legislature of Indiana should be duly entertained and considered, and the said Lane and McCarty fully heard; and that if, on full examination and hearing, the Senate find that the present sitting members were not duly elected, the resolution declaring them elected should be reconsidered. And if the Senate find that the said Lane and McCarty were legally elected, they should be admitted to their seats.

J. COLLAMER.
L. TRUMBULL.

The Senate laid the whole subject upon the table-yeas 31, nays 20-leaving Messrs. Bright and Fitch in possession of their seats.

NOTE.-The debate in this case will be found as follows: 34th Congress, 3d session, pages 626, 774, 907, 1034, 1040. Special session 35th Congress, pages 385, 392, 396. 35th Congress, 1st session, pages 355, 724, 2353, 2981. 35th Congress, 2d session, pages 599, 534, 772, 959.

THIRTY-SEVENTH CONGRESS, FIRST AND SECOND SESSIONS

STANTON vs. LANE, of Kansas.

It was held by the Committee on the Judiciary (unanimously) that Mr. Lane accepted the office of brigadier general, and that by so doing he virtually resigned his seat. Some of these facts were disputed in the Senate, and the subject was "indefinitely postponed.”

IN THE SENATE,

AUGUST 2, 1861.

Mr. FOSTER, from the Committee on the Judiciary, made the following report: That the contestant and sitting member have appeared before them and submitted, severally, their statements and made their exhibits.

The committee find the following facts: That the sitting member, the Hon. James H. Lane, was, by the Executive, appointed a brigadier general in the

volunteer forces of the United States on the 20th of June, 1861; that he accepted said appointment, and was legally qualified to perform its duties.

In the opinion of the committee the office of brigadier general under the United States is incompatible with that of member of either house of Congress. By accepting the office of brigadier general, the sitting member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that time.

On the 8th day of July, 1861, the governor of Kansas gave to the contestant, Mr. Stanton, a commission in due form appointing him a senator of the United States from the State of Kansas to fill the aforesaid vacancy, and by virtue of that commission Mr. Stanton now claims his seat.

Your committee recommend the adoption of the following resolutions:

1. Resolved, That James H. Lane is not entitled to a seat in this body.

2. Resolved, That Frederic P. Stanton is entitled to a seat in this body.

The evidence from which your committee find the facts herein set forth is, substantially, the following:

WAR DEPARTMENT, July 15, 1861.

SIR: In reply to your inquiry in regard to the appointment of the Hon. James H. Lane as brigadier general, I herewith transmit you documents upon the case:

A. Copy of letter to Secretary of War from Adjutant General Thomas.

B. Form of appointment, (printed blank.)

C. Telegram from Assistant Adjutant General to commanding officer at Fort Leavenworth. D. Letter of acceptance of regiments.

The Secretary of War directs me to state that he himself, after having signed the commission of Hon. James H. Lane, as brigadier general, handed it personally to him in presence of the Adjutant General, at the War Department.

Respectfully,

Hon. F. P. STANTON.

JAMES LESLEY, JR.,

Chief Clerk, War Department.

A.

Adjutant General's Office, Washington, July 15, 1861.

SIR: In reply to the inquiry of the Hon. F. P. Stanton of the 13th instant, referred by you to this office, I respectfully state that on the 20th ultimo you directed an appointment as brigadier general of the three-years volunteers to be made for the Hon. James H. Lane, of Kansas. The appointment was made as directed, and handed to you for signature, but was not returned to this office for record.

I enclose herewith a blank letter of appointment, similar to the one used in his case.
I have the honor to be, sir, very respectfully, your obedient servant,

Hon. SIMON CAMERON, Secretary of War.

L. THOMAS, Adjutant General.

B.

WAR DEPARTMENT, Washington, June 20, 1861. SIR: You are hereby informed that the President of the United States has appointed you brigadier general of the volunteer force raised in conformity with the President's proclamation of May 3, 1861, in the service of the United States, to rank as such from the 17th day of May, 1861. Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.

Immediately on receipt hereof, please to communicate to this department, through the Adjutant General's office, your acceptance or non-acceptance of said appointment; and, with your letter of acceptance, return to the Adjutant General of the army the oath, herewith enclosed, properly filled up, subscribed, and attested, reporting at the same time your age, residence, when appointed, and the State in which you were born.

Should you accept, you will at once report by letter for orders to the Secretary of War. Brig. General JAMES H. LANE,

United States Volunteers.

The original of which this purports to be a copy was not produced before the committee. General Lane stated that it was in the hands of Colonel Weer, at Leavenworth, General Lane also stated that there was a variation, in some

respects, between this copy and the original, but no variation was specified which the committee deemed material.

C.

[By telegraph.]

ADJUTANT General's Office,

Washington, D. C., July 10, 1861.

Detail an officer to muster in General Lane's brigade. The companies will be mustered when presented, even though less than the standard, and will be filled up afterwards.

By order:

WAR DEPARTMENT, June 20, 1861. DEAR SIR: This department will accept two regiments for three years or during the war, in addition to the three regiments the department has already accepted from the governor of Kansas, to be raised and organized by you in Kansas. Orders will be given to muster the same into service immediately on being ready to be so mustered; and on being mustered, the requisite arms, &c., will be furnished on the requisition of the mustering officer, who is hereby authorized to make the same.

By order of the President:

General JAMES H. LANE.
Official copy.

SIMON CAMERON,
Secretary of War.

J. LESLEY, JR.,
Chief Clerk.

I, John D. Clark, justice of the peace in and for Washington county, District of Columbia, do hereby certify that on or about the 20th day of June last General James H. Lane swore to and subscribed the form of the within oath before me, which I duly certified and delivered to him.

Given under my hand this 15th July, 1861.

By request of Mr. Stanton.

JOHN D. CLARK, J. P.

I, James H. Lane, appointed a brigadier general in the army of the United States, do solemnly swear, or affirm, that I will bear true allegiance to the United States of America; and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever, and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles for the government of the armies of the United States. Sworn to and subscribed before me, at

this day of

186.

Justice of the Peace.

The following article appeared in the Daily Times, of Leavenworth, on the 26th of June last:

LEAVENWORTH, June 25, 1861.

MR. EDITOR: On the 20th instant I was duly appointed a brigadier general in the volunteer force of the U1i.ed States, and thereupon received the following order:

WAR DEPARTMENT June 20, 1861.

DEAR SIR: This department will accept two regiments for three years or during the war. in addition to the three regiments the department has already accepted from the governor of Kansas, to be raised and organized by you in Kansas. Orders will be given to muster the same into service immediately on being ready to be so mustered; and on being mustered, the requisite arms, &c., will be furnished on the requisition of the mustering officer, who is hereby authorized to make the same.

By order of the President:

General JAMES H. LANE.

SIMON CAMERON,

Secretary of War.

Fellow-citizens of Kansas and adjoining States and Territories:

The important trust thus confided to me has occurred at a momentous period in our history as a nation. An insurrectionary war, commenced by rebels, in defiance of patriotism and duty, has now approached our border. Treason has raised its bloody hand, almost in our very midst, to strike down our glorious flag, made blessed by the memories of our fathers. The horrors of war are no longer far removed from us, but have been brought by traitorous hands to our very hearthstones. Impressed with the necessity of prompt and vigorous action in defence of our country, its flag, and our homes, the President has authorized the formation of a brigade of five regiments in Kansas. He has been pleased to place in my hands the honor of leading the gallant sons of the youngest State of the Union to victory in defence of that Union of which it has so lately become a part. Treason and rebellion surround us. Loyal American citizens, driven from their homes, are crying to us for protection. The best government in the world is assailed by wicked hands. Men of Kansas and the surrounding country, in the name of all we hold sacred, and by the authority of our constitutional ruler, I invoke you to rally to the stars and stripes; come forward and join the regiments accepted from our State. When organized, the watchword of the brigade will be the downfall of treason wherever found, and the upholding of Union men in every State and place. JAMES H. LANE,

Brigadier General.

General Lane stated to the committee that he wrote the body of the address only, and did not affix his name as brigadier general.

The requisitions mentioned in the following letter of General Meigs were read before the committee by General Lane; he stated that he made them, but did not sign them as brigadier general, nor was that title annexed to his name. The requisitions, not being in possession of the committee, are not inserted in this report.

QUARTERMASTER GENERAL'S Office,
Washington City, June 26, 1861.

SIRS: I am informed that you are able and willing to supply the regulation uniforms for two regiments, including four companies of cavalry, four companies of mounted artillery, and twelve companies of infantry, subject to regulation, inspection as to work and material, and at the United States prices.

This clothing is for two regiments to be raised and commanded by General Lane, of Kansas, and must be delivered in time to reach Fort Leavenworth before the 20th July, at which time the regiment is to take the field.

I enclose General Lane's requisitions, three in number, specifying the articles, and indorsed by me for identification. Also a copy of Order No. 23, of November 30, 1859, fixing prices. Be good enough to signify by telegraph your acceptance or rejection of this order, and if rejected return the requisitions by bearer.

When ready for inspection a United States inspector will be sent to Boston to look at them.
M. C. MEIGS,
Quartermaster General.

Messrs. HAUGHTON, SAWYER & CO., Boston, Mass.
The above is a true copy.

M. C. MEIGS, Quartermaster General,

The subject was recommitted to the Judiciary Committee in the second session, and the resolutions were reported a second time. The Senate postponed the subject "indefinitely."

NOTE. This case will be found in the Congressional Globe, 37th Congress, second session, pages 185, 222, 291, 336, 359, 363.