SPEECH or HON. WADE HAMPTON. OF SOUTH CAROLINA, In the Senate of the United States, May 13, 1880. 4 L-_ The Senate having under consideration the resolution reported by the Commit- tee on Privileges and Elections relative to the seat held by WILLIAM PitT KELLOGG as Senator from the State of Louisiana— Mr. HAMPTON said: Mr. PRESIDENT: As it is impossible for me to stand for any length of time, I must appeal to my brother Senators not to make me stand longer than is necessary by interruptions. Mr. President, it is with the greatest reluctance that I approach this question, and I do so only from a sense of duty. Upon all ques- tions involving legal points, I have been content to follow those here who are ornaments to the profession of the law and whose opinions are of recognized authority throughout the whole country. But on the matter under consideration such is the wide difference of opinion prevailing among some of the ablest jurists in this body that the un- professional mind seeks in vain for light to guide it to a correct judg- ment. Amid this great and fundamental diversity of opinions among the eminent members of the legal profession a layman like myself may well be excused for entertaining grave doubts as to the settled prin- ciples of law which should determine this important issue, and he surely cannot be blamed if, disregarding the mere technicalities of law, he strives earnestly to conform his action to the fixed and immu- table principles of justice. I can find in this case no other guide for my action, and should it lead me astray I shall at least have the con- solation of knowing that I have erred only by following my sincere and honest convictions of duty. I have not the ability to discuss the delicate and intricate points of law involved in this case. I can only cite such well known authorities as are accessible to all and to which my attention has been directed. But while, unfortunately for my- self, I cannot speak as one having authority, I may perhaps on that very account be able to weigh more impartially all the evidence ad- duced and to form a judgment unbiased by professional pride or un- prejudiced by partisan feeling. I recognize painfully in my own case how difficult it is to throw off the shackles forged by partisanship ; 2 to oppose the mandates of party, or to rise superior to that spirit sectionalism which has so often exercised its malign influence on ters which have come before us. Pha I appreciate as fully as any one the necessity of party organizations, and I acknowledge to their fullest legitimate extent the hae ad of party fealty. But there are sometimes questions ich we are called to act which each man must determine for himself; when his only guide must be his conscience and his sense of right. Such a question is the present one; one as grave, as important, as far- reaching in its consequences as ever came before this body, and one which demands all the prudence, all the wisdom, all the which should belong to this the highest as well as the most consery- ative legislative tribunal in this country. We cannot afford,in a — matter of such vital consequence, to draw party lines or to be gov- erned by sectional prejudices. We are here as representatives of coequal States, and in judging of the rights of any of these State are bound to do equal and exact justice to all, while we protect invio- late the rights and privileges of our colleagues, Any proceeding in this Chamber that could be considered as at all revolutionary or even irregular would shock the sentiment of the whole country, and would shake the settled foundations of the Government itself. Wecannot — tamper rashly with the principles, the rules, the traditions even which have obtained in the organization of this angust body. Some may treat these fears as groundless while they boldly seek to establish new precedents, but I seek safety and repose in clinging to the old, for I~ realize how dangerous innovations may become. ; I’ve seen an idiot clap his hands, and shout To see a tower, like yon, stoop to its base, In headlong ruin ; while the wise looked round, And feartol sought a distant stand to watch, What fragment of the fabric next should follow ; For when the turrets fall, the walls are tottering. I do not wish to see a single one of the muniments of our rend: - system of government broken down, or even touched by a rash ie It is needless for me to say, Mr. President, that I do not in the slight- est degree impute to the distinguished gentlemen who presented this ~ report, or to those who have so ably advocated its adoption, one sel- fish or unpatriotic motive. Not for one instant do I doubt the sincerity of their convictions or the honesty of their purpose. Most do I accord to them what I claim for myself, and it is therefore a matter of profound regret to me, that Iam impelled to differ wi them in the conclusions at which they have arrived. It is pee painful to me to express this difference of opinion, because it me on this question from so many of my party associates, in whose integrity, patriotism, and ability I have such confidence; but I trust that they will do me the justice to recognize that in the discharge of this painful duty Iam actuated by the same sense of right that in- spires them. It would, perhaps, be sufficient for me to announce my dissent from the resolutions offered by the majority of the committ but a proper consideration for the opinions of my constituents and my associates prompts me to give the reasons which control my action. These shall be stated in as brief a manner as possible, and more in the shape of conclusions than of argument. : The credentials of Mr. KELLOGG as Senator-elect from Louisiana were presented to the Senate on the 20th of January, 1877, and were referred to the Committee on Privileges and Elections in March of that year. Mr. Spofford’s credentials were referred to the same com- ‘ 3 mittee in October. By consent of parties the committee considered as evidence in the cause all the testimony taken by what are known as the Howe committee, the Morrison committee, and the Field commit- tee, as also Mr. Sherman’s report on the acts of the returning board, together with the journals of the Nicholls and Packard legislatures. On the 25th October, 1877, the Senate passed the following resolution : Resolved, That the Committee on Privileges and Elections on the contested cases of WILLIAM Pitt KELLOGG and Henry M. Spofford claiming seats as Senators from the State of Louisiana, and whose credentials have been referred to said commit- tee, be authorized to send for persons and ey and administer oaths with a view of enabling said committee to determine and report upon the title respectively on the merits of each of said contestants to a seat in the Senate. There can be no doubt but that this committee has the inherent power to determine and report upon the merits of all cases referred to it. But the Senate itself made it mandatory upon the committee in this case to do so by a formal resolution as if to avoid all misappre- hension and to make a final adjudication of the titlein issne. Shortly before the committee had closed its investigation Mr. Spofford ap- plied for further time to adduce additional testimony upon certain points in the case. The committee refused to grant that application and embodied their reasons for such refusal in the following resolu- tion : Resolved, That it is the sense of this committee that the matters proposed by antes Spofford as far as material have beén fully covered either by the BAGaaton of Mr. KELLOGG or the evidence already before the committee. I make no comment on this action of the committee except to ex- press the opinion that this ruling did injustice to Mr. Spofford. But it cannot be denied that it was competent for the committee to de- termine whether it should suspend its investigation of the case to enable a contestant to adduce cumulative testimony upon any given point. I apprehend that this power inheres in every tribunal au- thorized to hear and determine a cause. If it were otherwise a liti- gant so disposed might prevent a final adjudication of his cause by stretching out the line of his testimony indefinitely. Should a com- mittee of this body abuse this power, an appeal can be taken to the Senate sitting as a court to judge of the qualifications of its members. The Senate in such case must judge of the sufficiency of the evidence as the court of last resort, and its decision thereon cannot, in my opinion, be reviewed without doing violence to well-settled legal principles and establishing the dangerous doctrine that the tenure of a member of this hody is dependent upon the will of the majority whenever any party pleases to litigate his title. The committee reported the case back to the Senate on the 26th November, with the following resolutions : Resolved, That WILLIAM Pirr KeLioae is upon the merits of the case entitled to a seat in the Senate of the United States from the State of Louisiana for the term of six years, commencing on the 4th March, 1877, and that he be admitted thereto upon taking the proper oath. Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States. The minority of the committee also made a report, declaring that in their judgment Mr. KELLOGG was not entitled to a seat in the Sen- ate and that Mr. Spofford was. The discussion that ensued on these resolutions was protracted and exhaustive. It may he asserted with confidence that every class of fact and every matter of law now urged to unseat Mr. KELLOGG was either embraced in the minority report or was pressed upon the atten- tion of the Senate during that heated and long debate. On the 30th 4 November the Senate by unanimous agreement came to ayoteonthe Spofford-Kellogg case. This was not an agreement to vote upon some mere interlocutory motion in the case, but to decide it upon its merits; to make a final adjudication upon the title to the seat in question. There was no reservation of a right of further contest ; ‘but, on the contrary, when a proposition to that effect was made on behalf of Mr. Spofford by the distinguished Senator from Georgia who dissented from the report of the committee, it was promptly voted down. The Senate adopted the resolutions just cited, anno thereby as its deliberate judgment that Mr. KELLOGG was enti to a seat as Senator from Louisiana. Yet, in face of this action it is now contended that this judgment, so exact in form, and so clear in its expression of the intent of the tribunal which rendered it, does not conclude this case or stop li tion in regard to it. If this case is to be heard again on its merits, what is to prevent its being reheard at some future session, and as long as the unsuccessful contestant shall allege that he has discoy- ered new evidence, or shall assail the recorded judgment of the Sen- ate as unjust? For sixteen years the cause was spun, And then stood whereit first begun. In all questions of this character there must be some point at which a finality can be reached or we shall have permanent chaos in place of regulated and established order, and it seems to me that this is one of those doubtful and perplexing cases which should be determined by that reason which, as Coke has justly said, “is the spirit of the ’ law.” It has been denied here that on questions of this sort the Sen- ate acts in a judicial capacity, but this assertion can scarcely be sus- tained in view of the high authorities to the contrary. In Cooley’s Constitutional Limitations the following language is found, (section 133:) In determining questions me pare contested seats the House will exercise judicial power, but generally in accordance with a course of practice which has sprung from precedents in similar cases. The great Chancellor Kent expresses the same views in distingt, emphatic language: As each House acts in these cases in a judicial character, its decisions, like the decisions of any other court of justice, ought to be regulated by known principles of law, and strictly adhered to for the sake of uniformity and certainty.—Oommen- taries, volume 1, page 235. It will thus be seen that the highest authorities on constitutional questions declare that the Senate does sit at times asacourt. If they are correct in the views expressed it follows that when so sitting the Senate is bound by those legal principles and settled rules of practice that govern other judicial tribunals of last resort. It follows also as a logical sequence that the Senate does not possess the legal power to reopen any case which has been decided on its merits, on the pe- tition of a contestant therein, unless it shall clearly appear that the arty against whom its judgment was rendered was prevented 4 ratd practiced upon him by the successful party from presenting hi whole case for adjudication or exhibiting evidence which was mani- festly material in support of his claim. This view is sustained by all the reported precedents in the British Parliament, and in the elee- tion cases decided by both Houses of Congress, and by the uniform decisions of the Supreme Court of the United States. In a memora- 5) ble case upon a petition for a rehearing of a question decided by the House of Lords in 1823, Lord Chancellor Eldon said: cee at the general interest, it is infinitely better that the matter should be here finally decided upon one hearing even if the decision is wrong. than that there should be a new litigation unknown to our proceedings, as to this matter of re- hearing, nor can any one say where it is to stop. In generalit is to be hoped that the decisions of the House are right; but whether right or wrong, it has been taken for granted that considerations of infinitely greater moment than the considera- tions which arise out of the particular mischief in particular cases have led this House to determine that where a matter has been heard between the parties at the bar, and the House has given its decision upon the merits discussed by those par- o. the Honse will not rehear the cause-——Shaw’s Scotch Appeal Cases, pages 432, Wells, in his authoritative work on the doctrine of res adjudicata, lays down the following propositions, as supported by both the Eng- lish and American authorities : The maxim that fraud vitiates every proceeding must be taken, like other gen- eral maxims, to apply to cases where proof of fraud is admissible. But when the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible ; the party is estopped to set up such frand, because the ' judgment is the highest evidence and cannot be contradicted.— Section 499. Justice Cooley declares that— A decision once made in a particular controversy by the highest court empow- ered to pass upon it is conclusive on the parties to the litigation and their privies, and they are not allowed afterwards to revive the controversy in a new proceed- ing for the purpose of raising the same*or any other questions.