assembly, for the purpose of assisting in the organization of the respective houses, in obedience to the requirements of the constitution of the State. In these halls the people of Alabama expected all persons entitled to seats as members in either house to be present and qualify as legislators. By clear implication of law it was their duty to do so, and their failure to perform that duty cannot derogate from the rightful authority of the legislature there assembled, or impair the validity of any act done in pursuance of the legislative power with which it was clothed. The absence of any number of persons entitled to seats in a legislative body, or their refusal to act with the body, from whatever cause such absence or refusal might occur, could not prevent the organization of the body, or render its action illegal, provided a quorum was present, and the organization took place in accordance with the requirements of the constitution and the laws of the State.

If this is not true, then it follows that a factious minority may, by the mere refusal to qualify and participate in the organization of the legislature, destroy or suspend the action of the law-making department of the government at its pleasure. Such a position carried to its logical conclusion, would place it in the power of one member elect of the legislature to defeat the organization of the body to which he was elected by refusing to participate therein and thus overthrow good government in the State. Absurd as such a proposition may seem, it could be sustained by the same arguments that deny to the capitol legislature the character of being the general assembly of the State of Alabama.

Nor can the fact that some of the persons holding the certificates of election, issued by the secretary of state, and seated thereon in the capitol legislature may not have been elected to such places by the votes cast at the election, impair the validity of the organization of the senate and house of representatives constituting the capitol legis

lature.

Every member who took his seat in either house, presented the only evidence of his right to a seat required by the laws of the State, and such evidence entitled him to a seat in the house to which he was accredited, until it should be made to appear, by a contest, that his right was not good.

For contesting the seat of any men.ber of either house of the general assembly, the laws of Alabama fully provide, and every person claiming a seat in either house may, if entitled thereto, obtain the same upon a contest, made in accordance with law. But until such contest is successfully made, the person seated as a member upon the certificate of election issued by the secretary of state has all the constitutional and legal rights of a member of the legislature. His acts and the acts of the body of which he is a member are as valid and binding as though he had been elected by the unanimous vote of the electors of his county or district.

It is not alleged or insinuated that any member of either house of the capitol legislature holds the certificate upon which he was admitted to a seat by reason of any fraud, artifice, or contrivance of his own; but if such had been the fact, or if any member of the said legislature, seated on such certificate, had not, in fact, been elected, it was a matter over which the said legislature had exclusive cognizance, and into which the Senate cannot properly inquire.

Each house of the general assembly of Alabama is the exclusive judge of "the election returus and qualification of its members," and any in

quiry into such question by the Senate of the United States would be as unwarranted by precedent as it would prove dangerous in practice. In a contest like the one now under consideration, between two persons elected to the Senate by different bodies, each claiming to be the legislature of the State, the Senate may look into the constitution and laws of the State to ascertain which of the two bodies, if either, has been organized in conformity with their provisions, but it cannot rightfully inquire into the election returns and qualifications of the members of either body.

If the Senate could enter upon such inquiry, where would be the limitation upon its prerogatives? Could it not just as legitimately inquire into the manner in which any election-officer had performed the duties of his office, and even into the qualification of the electors who had voted for members of the State legislature?

The undersigned would not restrict the Senate in its constitutional right to judge of the election returns and qualifications of its own members, but would regret its assumption of powers belonging exclusively to the two houses of the State legislature.

It may be true that persons will sometimes be returned members of the legislature through the failure of election-officers to make the proper returns, but the person deprived of his seat in the legislature by reason of such failure has his remedy in a contest before the body to which he may have been elected. Such contests are neither unusual or improper. It is the mode pointed out in the laws of every State for the correction of such errors, and in none more fully than in the laws of Alabama. The failure of any person or number of persons, deprived of their seats in the legislature by the default of election-officers, to make such contests, would not justify an inquiry into the matter by the Senate of the United States. The person so returned would have all the rights, and could properly perform all the duties, of any other member until de prived of his seat in the mode pointed out by law. A contrary doctrine has never received the assent of any respectable court or any legislative body in this land.

If we should go further, and, for the sake of argument, admit it to be true, as alleged, that the members from Marengo and Barber Counties seated in the capitol legislature upon certificates issued by the secretary of state were not in fact elected to the legislature by the votes actually cast at the election, still, we confidently assert that the returns of election made by the supervisors of election, who are made judges of the facts by the laws of Alabama, and the certificate of their election, entitled them to be seated as members, and to hold their seats until displaced upon a contest, and that, as such, every act they performed was as valid as though they had received every vote cast at the election. Let us now look at the facts connected with the organization and history of the assemblage of persons who met at the United States district court-rooms, and known as the court-house legislature. It met on the day fixed by law for the meeting of the general assembly. No publie notice, through the papers or otherwise, was given of an intention on the part of any persons claiming to have been elected to the legislature to meet at that place, and no information was given to the lieutenantgovernor, speaker of the last house of representatives, or any of the members elect, other than those there assembled, of such purpose. No previous legislature had ever held its sessions at the court-rooms, which belonged to the United States and not to the State of Alabama, and no person holding a certificate as a member of either house other than S. Rep. 291-2

those who there assembled, could possibly have deemed it a proper and appropriate place for the meeting of the legislature.

The senate of the court-house legislature consisted of fourteen persons holding certificates of election as senators, issued by the secretary of state, and of five other persons, (enough to constitute a quorum of a full senate,) who held no such certificates. Their deliberations were presided over by one of their number, chosen as temporary president during the organization, and until after the lieutenant-governor elect had been inducted into office. This body never had more than fourteen members (less than a quorum) holding certificates of election issued by the secretary of state in pursuance of law, and at no time had a quorum of the persons actually elected to the State senate.

The house of representatives at the court-rooms consisted of forty-six persons, to whom certificates of election as members of the house of representatives had been issued by the secretary of state, in pursuance of law, and of a sufficient number of other persons holding no such certificates, to constitute a quorum of a full house of representatives. Some of the persons seated as members in this body had not been elected members of the legislature, and made no claim as such to seats in the fusion legislature, afterward organized under the plan proposed by the Attorney General of the United States.

Immediately after the organization of the two houses of the courthouse legislature, a joint committee was appointed to wait upon Governor Lindsay, and inform him of their readiness to receive any communication from him. The governor rightfully declined to recognize them as the general assembly, and sent his annual message, as before stated, to the capitol legislature.

Governor Lewis, after being legally inducted into office by the proceedings hereinbefore stated in the capitol legislature, co-operated with the assemblage of persons at the court-rooms, and professed to regard them as a de facto legislature.

The ground upon which Mr. Spencer, who was elected by this courthouse body, predicates its claim to recognition by the Senate as the rightful legislature of Alabama, is, not that it existed in conformity with the provisions of the constitution and laws of the State, but upon the unsustained allegation that a majority of the members, both of the senate and house, some of whom held no certificates of election, were elected by a majority of the votes cast in their respective counties and districts.

If the truth of such allegation was a legitimate subject of inquiry in this body; if the Senate of the United States could properly judge of the election of members of a State legislature, (which the undersigned most emphatically deny,) it would not be difficult to demonstrate that the court-house senate at no time had a quorum of members elected by the voters of the senatorial districts in which they reside.

Those who assert that the members at the court-house legislature were elected by the votes cast, rely on the fact that persons holding no certificates of election, and who were members of the court-rooms, were afterward admitted to seats in the fusion legislature. It will be remembered that the fusion of the capitol and court-house legislatures took place upon an arbitrary plan proposed by the Attorney-General of the United States, leaving to persons claiming seats the right to make a contest for the same.

Without going into the history of its proceedings it is sufficient to state that Mr. Miller, who was a member of the court-house senate, holding no certificate of election, and whose presence was necessary to

constitute a quorum, and who voted for Mr. Spencer, was, by proceedings the most arbitrary, illegal, and tyrannical, admitted to a seat in the fusion legislature as a senator from the senatorial district composed of Butler and Conecuh and part of Escambia Counties over Mr. Martin, who held the certificate of election, and who had received a large majority of the votes cast for senator at the election. This arbitrary and tyrannical proceeding to seat Mr. Miller in the fusion senate was doubtless deemed necessary to give color to his participation in the senate at the court-rooms, which, without his presence, had no quorum of members claiming to have been elected.

The legality of the court-house legislature and the validity of its proceedings depend, not upon what took place in the fusion legislature, but must rest upon its own conformity to the provisions of the constitution and laws of the State. Tested by these requirements it can claim no higher character than that of a revolutionary body organized in contempt of the constitution and laws of Alabama and in disregard of good order and legitimate government in the State.

An argument was made before the committee in favor of the legality of the court-house legislature, drawn from the fact that a joint resolution was passed in the fusion house of representatives declaring, in substance, that the court-house legislature was the lawful general assembly of the State.

This resolution, which did not pass the senate, was voted for in the house only by members of the court-house body seated in the fusion legislature, and was an abortive attempt to justify and render valid their own illegal proceedings. It is submitted that no subsequent declaration, by one or both of the two houses of the fusion legislature, could have had the effect to render that legal which was before illegal. Much less could an attempt on the part of one house to do so have that effect. At best it was but the vain effort of persons whose previous action was irregular and revolutionary to condone their own contempt and disregard of the constitution and laws of the State. This argument, feeble as the cause it is intended to sustain, is unworthy of consideration, and we pass it without further notice.

It was alleged in argument before the committee that the observance of the provision of the constitution requiring the lieutenant-governor to preside in the senate, and the presidency of the speaker of the last house of representatives in the house, the meeting of the general assembly in the State capitol, and the issuing of certificates of election to members of the legislature by the secretary of state, based upon returns made to him by the supervisors of election, was not necessary to constitute a valid legislature, but that these provisions are mere matters of form, which may be dispensed with at pleasure.

The undersigned cannot concur in views so narrow of constitutional and legal requirements, and while admitting that in the presence of overwhelming and absolute necessity matters of form, even when prescribed by law, may be dispensed with, yet, in the absence of any such necessity what might otherwise be treated as matters of form, if prescribed by the constitution and laws of the State, become matters of substance not to be disregarded, but must be strictly observed. In the present case no such necessity can be pleaded. Party exigency alone prompted, and is brought forward to sustain, the utter disregard by the court house legislature of requisites prescribed by the constitution and laws of Alabama and designed to perpetuate legitimate government in the State.

Are these requisites deemed of sufficient importance to be incorpo

rated into the constitution and laws of the State to be degraded to mere matters of form, the observance of which may be disregarded at the sug gestion of party interest? It might with the same truth be contended that the taking of the prescribed oaths of office by members of the legislature may be dispensed with, or that the execution of bonds required to be given by a public oflicer before entering upon his office are mere matters of form.

Let us turn to the law of Alabama relating to the issuing by the secretary of state of certificates of election to members of the legislature, to see whether it is only matter of form to which no importance is attached.

Section 35 of the law of October 8, 1868, hereinbefore referred to, makes it the duty of inspectors of elections to count the votes polled and certify the poll-list, seal up the boxes containing the ballots and poll-list, and deliver them to a returning-officer to be delivered to the judge of probate for the county.

Section 36 of said law constitutes the judges of probate, sheriffs, and clerks of the circuit court boards of supervisors of election, and makes it their duty to open, compare, and count the ballots cast at the elec tion, and the next succeeding section confers upon them power and makes it their duty to reject illegal and fraudulent votes.

Section 38 makes it the duty of the board of supervisors, within five days after receiving the said boxes containing the ballots and poll-lists, to certify the numbers of votes cast in the county for each person, stating the office he is voted for, and to forward such certificate (except for certain-named officers) to the secretary of state to be filed in his office. These are the steps to be taken preliminary to the issuing of certificates by the secretary of state.

Section 42 of the said law, hereinbefore recited, makes it the duty of the secretary, within ten days after receiving the returns and certifi cates of the supervisors of election, to issue certificates of election to the persons shown by said returns to have been elected.

Is this all matter of form? Is there no meaning to be attached to these provisions of law for ascertaining who has been elected to the general assembly? Why, then, the provisions of law imposing penalties upon the election officers and the secretary of state for neglecting the performance of the duty imposed?

We admit that the legislature of the State, upon a contest for a seat in either house, may go behind the certificates and inquire into the facts of the case, but that is a right conferred by the constitutional provision making each house "the judge of the elections, returns, and qualifications of its members."

The right of any number of the members-elect to the legislature to disregard these provisions of the law and treat them as nullities cannot be conceded. The same board of supervisors of election that certified to the secretary of state the election of members of the general assembly also certified under provision of law the vote for governor, lientenant-governor, treasurer, and other State officers, to the presiding officer of the senate, who opened and published the result, as before mentioned. What would be thought of the opposing candidates for these offices who would attempt to disregard the certificates of the supervisors and the ascertainment of the result of the election in the manner prescribed by law, claiming that they were mere matters of form, and attempt to seize the offices for which they had been candidates, on the allegation that they had been elected by the votes of the electors?

No one would sustain such revolutionary action, even if it was cer