NEW HAMPSHIRE. 



631 



NEW HAMPSHIRE. Section one of the 

 act providing for minority representation in 

 corporations, passed by the Legislature of 



1879, and submitted to the people for ratifica- 

 tion or rejection at the November election of 



1880, was ratified by a majority of the voters, 

 viz., 22,560 for, 10,375 against ; whole number 

 of votes, 32,935. 



The biennial session of the Legislature 

 opened on June 1st. In the organization of 

 that body, Chester B. Jordan, of Lancaster, was 

 elected Speaker of the House of Representa- 

 tives, and John Kimball, of Concord, President 

 of the Senate. 



Both Houses met in joint assembly on June 

 2d, to ascertain and publish the results of the 

 State election held November 2, 1880, when 

 the President formally declared, as duly elect- 

 ed for Governor, Charles H. Bell ; and for State 

 Councilors from the five districts, Thomas J. 

 Jameson, Lyman D. Stevens, John "W. Wheeler, 

 George H. Stowell, and Arthur L. Meserve. 



The chief officers of the State executive 

 departments were elected by the Legislature in 

 joint assembly, on June 15th, as follows: For 

 Secretary of State, Eli B. Thompson, of Con- 

 cord ; State Treasurer, Solon A. Carter ; State 

 Printer, Parsons B. Cogswell ; Commissary- 

 General, George E. Lane. 



The official term of Edward H. Rollins, 

 United States Senator from New Hampshire, 

 expiring March 3, 1883, the question whether 

 his successor should be elected by this Legis- 

 lature or by that which will convene two years 

 afterward, engrossed the attention of the Re- 

 publican members during the first two weeks 

 of the session. Large numbers of them insisted 

 upon the legality of such election at either of 

 the said two sessions. The Democratic members 

 took no active part in the conflict, yet openly 

 favored a two years' postponement of the dis- 

 puted election, cherishing, it is said, a hope of 

 a Democrat being elected Senator in that 

 event. Governor Bell, in his inaugural address, 

 called attention to this matter as one to be 

 determined at the present session, and both 

 Houses referred it to their respective judiciary 

 committees for consideration and report ; the 

 resolution adopted in the Lower House for 

 that purpose instructing its committee " to re- 

 port at the earliest practicable hour." 



The Senate went even further, as, by a resolu- 

 tion offered on June 7th, and adopted next day 

 yeas 13, nays 10 it requested the Supremo 

 Court to answer the question whether the 

 Legislature now sitting has the power of elect- 

 ing a Senator to represent the State in Con- 

 gress for the term commencing March 4, 1883. 

 The Supreme Court answered that question 

 affirmatively in a written document dated June 

 10th, and signed by six of its seven justices; 

 the seventh making no answer, and stating his 

 reasons for it. On account of the character 

 and importance of the matter involved, the an- 

 swer of the Supreme Court to the Senate on 

 the question proposed is here subjoined : 



To the Senate of New Hampshire : 



The undersigned have received an attested copy of 

 the resolution of your honorable body, requiring the 

 opinion of the Supreme Court upon the question 

 whether the existing Legislature has the power and 

 right to elect a person to represent the State in the 

 Senate of the United States for the term be>nnniiiir 

 March 4, 1833. 



The first inquiry is t whether this is an important 

 question of law on which the Senate is authorized to 

 require the opinion of the court. It is evidently a 

 question of law, and an important one ; and it is none 

 me less such a question because it is in our judgment 

 free from all difficulty and doubt. It is a question of 

 law necessary to be determined by the State Senate 

 in the performance of its duties as a branch of the 

 Legislature. We see no reason to doubt that it is 

 constitutionally entitled to our opinion. In giving 

 such an opinion ? the justices do not act as a court, but 

 as the constitutional advisers of either branch of the 

 Legislature requiring their opinion ; and it has never 

 been considered essential that the question proposed 

 should be such as might come before them in their 

 judicial capacity. (126 Mass., 566; 53 N. H., 641.) 



" The Senate of the United States shall be composed 

 of two Senators from each State, chosen by the Legis- 

 lature thereof for six years." (Constitution of the 

 United States, Article I, section 3.) 



The right of each State is not merely to be repre- 

 sented by two Senators, but to be represented by two 

 Senators chosen by its Legislature. 



The legislative duty ot choosing Senators is com- 

 prehended in the State right of being represented by 

 Senators chosen by the Legislature. The senatorial 

 term is six years: "chosen by the Legislature for 

 six years," is the language of the Constitution. The 

 primary right of the State is not to be represented five 

 years and nine months, or any other part of each sen- 

 atorial term, by two Senators chosen by the Legislat- 

 ure, but to be represented during the whole of each 

 term by two Senators so chosen; and the manifest 

 constitutional duty of the Legislature is to elect Sen- 

 ators at such times that the State may be represented 

 by two Senators, chosen by the Legislature thereof 

 for six years. 



"The Constitution of the United States is the. su- 

 preme law of the land, and so long as it remains in 

 force in its present form, there can be no power, Stato 

 or Federal, legally capable of depriving a State of the 

 right which the Constitution has conferred upon it, or 

 of relieving the Legislature from the duty which the 

 Constitution has imposed upon it. And there is no 

 more power to legally suspend the right and duty for 

 a day, than for six years, or for ever. 



The next Legislature, having no official existence 

 until June, 1883, can not elect a Senator for the full 

 term of six years, beginning March 4, 1883. There- 

 fore the refusal of the present Legislature to elect a 

 Senator for that term would be a violation of the con- 

 stitutional right of the State to be represented by two 

 Senators, " chosen by the Legislature thereof for six 

 years." Such a refusal, leaving the Stato for three 

 months represented by only one Senator chosen by its 

 Legislature, would bo as plainly unconstitutional as 

 similar refusals leaving the State for all tune without 

 any Senators so chosen. 



If, by an aggressive act of any Federal or State 

 power, the States could bo constitutionally deprived 

 of their senatorial right*, for any part of a senatorial 

 term, there would bo no limit of the disfranchisement 

 to which they would be liable. If a State can be con- 

 stitutionally deprived of the right to have its vote 

 given in the Senate by members chosen by its Legis- 

 lature, it can be constitutionally deprived of its voice 

 and vote in both Houses of Congress, expelled from 

 the Union, or reduced to the condition of a conquered 

 province. Its national rights would not be lejral 

 rights, in the ordinary sense, if they could be legajly 

 taken away without fault, without cause, without trial, 

 and without remedy. A resolution of the Federal 



