632 



NEW HAMPSHIRE. 



Senate or an net of Congress, refusing to admit to 

 their seats any more Senators from New Hampshire, 

 chosen by its Legislature for six years, would, if 

 curried into ellcct," violate the constitutional right of 

 the State, but would not release the Legislature from 

 their electoral duty. The performance of that duty 

 would show that the State did not assent to its own 

 dis trim chisement. 



W hen a vacancy happens by resignation or other- 

 wise during the recess ot tin- Lcgfolature, the executive 

 may make a temporary Appointment until the next 

 meeting of the Legislature, which shall then fill .the 

 vacancy (Article I, section 3). This power of tem- 

 porarily filling vacancies by appointment is not a limi- 

 tation of the right of the State or the duty of the Legis- 

 lature. It is the constitutional right of the State Unit 

 no vacancy shall be caused by the refusal of the 

 present Legislature to choose a Senator. 



The FfedenJ Senate is the judge of the elections of 

 its own members ; and the legal presumption is, that 

 it will admit a person duly qualified and legally elect- 

 ed. It is not, and can not be, bound to a contrary 

 course by any action that has been or can be taken by 

 itself or by Congress. Its published proceedings and 

 debates furnish satisfactory evidence that it would 

 admit a member chosen by the present Legislature, 

 and that the doctrine of disorganization, equally hos- 

 tile to the rights of the States and the perpetuity ot 

 the Union, is not held by that learned and honorable 

 body. But if it should turn out that we are mistaken 

 in tins, the electoral duty of the present Legislature 

 would not cease to be a constitutional one. 



Congress has power to prescribe the time and man- 

 ner of holding elections for Senators (Article I, sec- 

 tion 4) ; and it has exercised that power. ^Rev. 

 Statutes, U. S., sections 14, 15.) 



But as Congress can not legally violate the consti- 

 tutional right of the State to be represented by two 

 Senators chosen by the Legislature, and as that right 

 would be violated by the refusal of the present Legis- 

 lature to elect, it is not necessary to inquire into the 

 validity of the act of Congress. But having examined 

 the act, it may not be out of place to express the 

 opinion that it is constitutional, because it can not be 

 fairly construed to be a denial of the constitutional 

 electoral duty of the present Legislature. Section 15, 

 prescribing the manner of election, has no bearing on 

 the present question, which is a question of the time 

 only. Section 14 fixes the time. It provides, in sub- 

 stance, that a Senator shall be elected by the Legis- 

 lature which is chosen next preceding the beginning 

 of a senatorial term. 



The Legislature here intended is a body of men who 

 are the Legislature before the beginning of the sena- 

 torial term, and not a body of men who will be the 

 Legislature, if they are alive, three months after the 

 beginning of the term. 



The legal meaning is easily and clearly settled by 

 two elementary rules of interpretation. The first rule 

 is, that the evil intended to be removed is strong 

 evidence of the remedy intended to be provided. The 

 evil was the election of Senators at too early a day by 

 a Legislature that was not the latest one that could 

 elect for the full term of six years. The remedy was 

 the fixing such a time that the duty of electing for 

 the full term should fall upon the latest Legislature 

 that could perform the duty. The other and equally 

 decisive rule of interpretation is, that Congress, as a 

 legislative body, is presumed to have intended not to 

 infringe constitutional rights, and to make a law that 

 would be valid. The application of these rules leads 

 to the conclusion that Congress meant a Legislature 

 competent to perform the duty of maintaining the 

 State right by electing a Senator for the full term, 

 *nd not a Legislature incapable of performing that 

 iuty. 



Congress has not power to prescribe the form of the 

 State Constitution, or to fix the time when the Legis- 

 lature shall be elected, or when its official term shall 

 begin, or disfranchise a State for not making such a 

 Constitution as Congress approves. 



The Constitution of tm's State-is constitutional and 

 valid, and the State can not be legally deprived of its 

 right to have a Senator elected by its Legislature for 

 a full term on the ground that the election of the 

 Legislature of June, 1883, occurs in November, 1882. 

 Concord, June 10, 1881. 



C. DOE, 



WILLIAM L. FOSTER, 

 C. W. STANLEY, 

 W. II. H. ALLEN, 

 ISAAC W. SMITH, 

 LEWIS W. CLAliK. 



Not having had an opportunity carefully to con- 

 sider the question submitted by the Honorab'le Senate, 

 and also being in doubt whether it is one upon which 

 the opinion of the court may properly be required 

 under the Constitution, I make no answer and express 

 no opinion. I. N. BLODGETT. 



The Judiciary Committee of the Lower House 

 reported on the senatorial election on June 

 9th, and that of the Senate on June 14th ; both 

 denying all electoral right to the present Leg- 

 islature, and for about the same reasons vari- 

 ously expressed in the two reports, but mainly 

 based on the letter of the statute regulating 

 the election of Senators, and on the interpre- 

 tation given it by the Committee on Privileges 

 and Elections of the United States Senate in 

 1878, when a bill was referred to them involv- 

 ing the identical question whether the suc- 

 cessor to Bainbridge Wadleigh, United States 

 Senator from New Hampshire, whose term was 

 to expire March 3, 1879, should be elected by 

 the State Legislature at the June session of 

 1878, which was then holding, or at the session 

 to be held in June, 1879 three months after 

 the beginning of the term to be provided for. 

 The said committee reported the right to elect in 

 the proposed case to belong to the last-named 

 session, by reason that it would be held by a State 

 Legislature chosen in November, 1878, i. e., next 

 preceding the expiration of Mr. Wadleigh's term, 

 as the statute ordains ; which report was accept- 

 ed by the United States Senate, and, in accord- 

 ance with its recommendation, the bill which 

 had occasioned it was indefinitely postponed. 

 The two Judiciary Committees of the State Leg- 

 islature conclude their reports with recommend- 

 ing the passage of suitable resolutions ; the one 

 proposed by the Lower House committee being, 

 " That the House will not go into an election 

 of United States Senator at this session ; and 

 that the subject be postponed to the next Leg- 

 islature." 



This resolution was the subject of very hot 

 and almost continuous debate during many days, 

 several motions to amend having in the inter- 

 val been made, discussed at length, and voted 

 down, until the resolution itself was finally put 

 on June 14th, and adopted by a viva voce vote, 

 the majority of the votes for it having num- 

 bered sixty-four. 



After the matter had been thus ultimately 

 settled, sixty-four members of the Legislature 

 sixty-two Eepresentatives and two Senators 

 who had been most active in bringing about 

 that result, signed and published an address 

 " To the Republicans of New Hampshire," 

 dated June session, 1881, and entitled " The 



